Research › Search › Judgment

Madras High Court · body

2001 DIGILAW 330 (MAD)

Saraswathy And Another v. N. Palanisamy

2001-03-14

A.D.V.REDDY

body2001
Judgment :- The petitioners in MC 49/1995 on the file of the Family Court, Coimbatore have preferred the revision aggrieved against the order dated 15-10-98. The case in brief is as follows : The petitioners filed an application under S. 125, Cr. P.C. claiming maintenance from the respondent at the rate of Rs. 400/- per month to the 1st petitioner and Rs. 300/- per month to the 2nd petitioner. The 1st petitioner is the legally wedded wife of the respondent and the 2nd petitioner is their daughter. Their marriage took place on 7-11-84 at Vinayagar Koil, Perur, Coimbatore as per Hindu Rites and customs and it was arranged by the elders of both the families. After the marriage they lived at Thoppur, Sathyamangalam in the house of the respondent for one month. Later they shifted their residence from Sathyamangalam to Arunthathiyar Colony, B.R. Puram, Coimbatore. The first petitioner came to know that soon after the marriage the respondent has developed illicit intimacy with one Nagal of Thoppur and continued the same. When questioned, the respondent declared that he would continue to have the illicit affair. He began to ill treat her and in February 85 while she was pregnant the respondent deserted her and eloped with Nagal to Madras. They stayed for a period of 6 months and returned to Sathyamangalam and the respondent and Nagal lived there. The first petitioner gave birth to a female child on 5-8-85 at CIC Hospital, Coimbatore and inspite of the information the respondent has not chosen to visit the mother and the child. A panchayat was also held at the instance of the first petitioner. But he was adamant. The first petitioner is now residing with her parents and she is unemployed. She is unable to maintain herself as well as the child. The 2nd petitioner is studying in the Corporation School. Legal notice was also issued, but there was no reply. The respondent is employed as a Sweeper in Sathyamangalam Municipality and is earning a monthly salary of Rs. 2000 per month. He also owns a house worth Rs. 75,000/- and claimed the maintenance amount. The respondent resisted the application and stated that the first respondent is not his legally wedded wife. The 2nd petitioner is also not his daughter. Nagal is the legally wedded wife of the respondent and their marriage was solemnized on 23-2-83 at Vinayagar temple, Sathyamangalam. He also owns a house worth Rs. 75,000/- and claimed the maintenance amount. The respondent resisted the application and stated that the first respondent is not his legally wedded wife. The 2nd petitioner is also not his daughter. Nagal is the legally wedded wife of the respondent and their marriage was solemnized on 23-2-83 at Vinayagar temple, Sathyamangalam. The respondent is not at all in anyway connected with the birth of the 2nd petitioner. His sister was residing at Arunthathiar Colony, B.R. Puram, Coimbatore till January 90. The respondent used to visit his sister often. The 1st petitioner is the legally wedded wife of one Selvan and she was residing near Pioneer Mills, CMC Colony, Coimbatore. She deserted her husband and was living in her parents house near the house of the sister of the respondent. Her parents requested the sister of the respondent to arrange for the marriage of the 1st petitioner to him, but the respondent and his sister explained the fact that the respondent is already married and declined the proposal. Engaged by the refusal, the revision petition has been flied on false grounds. This has been filed only to extract money. Reply notice was also sent and it was acknowledged by the counsel for the petitioners. His total monthly salary is Rs. 1100/- after deduction. He is not owning any house property, but residing only in his father's house. On behalf of the petitioners, P.Ws. 1 to 3 were examined and on behalf of the respondent, R.Ws. 1 to 3 were examined, Ex. P1 to P4 and Ex. R1 to R3 were marked. After hearing the parties, the learned Judge dismissed the petition filed by the petitioners and aggrieved against this, the present revision petition has been filed. Heard the learned counsel for the parties. The points that arise for consideration are : i. Whether the 1st petitioner is the legally wedded wife of the respondent ? ii. Whether the petitioners are entitled to claim maintenance and if so, to what amount ? Points : The petitioners have came forward with a specific case that the 1st petitioner married the respondent as per the Hindu Rites and custom prevailing in the community on 7-11-84 at Vinayagar Koil, Perur, Coimbatore. The 2nd petitioner was born out of the lawful wed-lock on 5-8-85. Points : The petitioners have came forward with a specific case that the 1st petitioner married the respondent as per the Hindu Rites and custom prevailing in the community on 7-11-84 at Vinayagar Koil, Perur, Coimbatore. The 2nd petitioner was born out of the lawful wed-lock on 5-8-85. The respondent developed illicit intimacy with one Nagal and also eloped with her to Madras and thereafter both of them are residing at Sathyamangalam. The respondent is employed as a Sweeper and earning more than Rs. 2000/- per month and he also owns immovable property worth Rs. 75,000/-. The respondent is bound to pay the maintenance as claimed by the petitioners. Per centra, the respondent denied the marriage and also the paternity of the 2nd petitioner. According to him, Nagal is his legally wedded wife and both of them are living under one and the same roof. The said Nagal had two children through the marriage and Exs. R1 and R2 are the birth extracts relating to the two children. The respondent also produced records Ex. 23 and R4 to show that in the voters list as well as the family card by the name of Nagal finds a place. Ex. P4 has been presented into service by the petitioner in order to show the birth of the 2nd petitioner where the father's name was originally given as Pennusamy and later it was corrected as Palanisamy. Ex. R5 had been produced by the respondent in order to show that this record has been created by the petitioner to establish that the 2nd petitioner was born to the respondent. The burden is only upon the petitioners to establish that there was a valid marriage between the 1st petitioner and the respondent. It is admitted that the sister of RW. 1 is residing very near to the house of P.W. 1. According to RW. 1 there was a suggestion from the parents of PW. 1 that RW 1 can marry P.W. 1 and the sister of RW. 1 had also supported the same. The learned counsel for the respondent contended that RW. 1 had already married the said Nagal and as such he refused to marry P.W. 1. It is pertinent to point out that the sister of RW. 1 had not been examined on the side of the Respondent. If really RW. 1 had already married Nagal, who was examined as RW. The learned counsel for the respondent contended that RW. 1 had already married the said Nagal and as such he refused to marry P.W. 1. It is pertinent to point out that the sister of RW. 1 had not been examined on the side of the Respondent. If really RW. 1 had already married Nagal, who was examined as RW. 2 in the case, she would not have recommended RW. 1 to marry P.W. 1. This is one circumstance to show that there would not have been a valid marriage between RWs. 1 and 2 at any earlier point of time. Further, P.Ws. 1 and 2 categorically stated that the marriage of P.W. 1 with RW. 1 was performed with the consent of both the families in the temple. This being so it is quite probable that the sister of RW. 1 may not be inclined to come before the Court and give evidence in support of the respondent's case. She knew fully well that there was already a marriage between PW. 1 and RW. 1. In fact PW. 1 has sent a legal notice under Ex. P1 and the reply notice was sent only after filing of this petition. It is clear from the evidence of P.Ws. 1 and 2 that there was a marriage between PW. 1 and RW. 1 in the temple. The learned Judge mainly commented upon the absence of any photographs or any invitation or any other record. It is also pertinent to note that even in respect of the alleged marriage between RWs. 1 and 2, there is no marriage invitation and there are no photographs. It is not necessary that there should be some photographs or invitation in respect of the marriage between the parties. It was also commented by the learned Judge that no record has been produced from the temple authorities to prove the marriage. The case of RWs. 1 and 2 are also similarly placed and under the circumstances, in view of the absence of any of these documents, the case of the petitioners cannot be thrown out. It has come out in the evidence of PWs. 1 and 2 that there was panchayat also and it was not reduced into writing. P.W. 3 was examined on the side of the petitioners to show the income earned by the respondent. It has come out in the evidence of PWs. 1 and 2 that there was panchayat also and it was not reduced into writing. P.W. 3 was examined on the side of the petitioners to show the income earned by the respondent. P.W. 3 was then working as Junior Assistant in Sathyamangalam Municipality. According to him, P.W. 1 was employed as a Sweeper and he had also produced the pay-slips under Ex. P3 (series). During December'94, he was getting a salary of Rs. 1889/- and in April 96 his salary was Rs. 2262/- and in May'96 it was Rs. 2345/- and the respondent is a permanent employee. RWs. 1 and 2 stated that their marriage was solemnized at Vinayakar Temple, Sathyamangalam. He admitted that there is strained feelings between him as well as his sister Sellammal and as such he could not examine her. He admitted that his sister also attended his marriage with RW. 2 but for reasons best known, he could (no ?) examine her. At one point of time RW. 1 stated that he did not know anything about P.W. 1, but later he admitted that he had occasions to see her, because she was residing near the house of his sister. He also admitted that the family of PW. 1 insisted RW. 1 to marry PW. 1. Although he denied the suggestion that P.W. 1 gave a complaint to Sathyamangalam Police Station on 9-3-85 he admitted that he was called for enquiry. He also admitted that his stater asked him to marry PW. 1, but he denied the same. RW. 2 stated that she married RW. 1 on 22-7-83 at Vinayagar temple situated near Sathyamangalam Police Station. They have got two male children out of the wedlock and Exs. R1 and R2 are the birth extracts. RW. 2 also admitted that she had not signed any register kept in the temple. She also denied the suggestion that as arranged by Sellammal, the marriage of PW. 1 and RW 1 took place. RW. 3 was then working as Health Inspector of Coimbatore Corporation. He was made to speak about the entry in Serial No. 4031 relating to the birth of the child on 5-8-85 wherein the father's name was given as Ponnusamy and the name of the mother was Saraswathy. The said entry is Ex. B. 5, on 23-8-95 in the said register at the Regn. He was made to speak about the entry in Serial No. 4031 relating to the birth of the child on 5-8-85 wherein the father's name was given as Ponnusamy and the name of the mother was Saraswathy. The said entry is Ex. B. 5, on 23-8-95 in the said register at the Regn. No. 1431, the name of Ponnusamy is changed as Palanisamy. The change had been effected by the Dean of the Hospital. The correction in Ex. B5 has also been made on the letter given by the Dean. In view of the alteration only, the learned counsel for the respondent contended that the birth extract relating to the 2nd petitioner had been created only for the purpose of this case. It is the case of PW. 1 that she gave birth to a child as early as 1985. However, RW. 1 would state that PW. 1 had married one Selvam or Selvaraj. But, it is significant to note that the name of Selvaraj did not find a place in the birth extract relating to the 2nd petitioner. P.W. 1 is an illiterate lady and she cannot be blamed for the alteration relating to the name of the husband in the Municipal records. When there is a mistake, the authority has got right to correct it. Section 125 Cr. P.C. is only a summary remedy and if the parties were able to establish that they were living together as husband and wife for some period, the status of the parties can be decided. There is no reason to discard the testimony of P.W. 2. The entry in the birth extract relating to the 2nd petitioner also established that there must have been a valid marriage between P.W. 1 and RW. 1 and thereafter only the child was born. The learned Judge has not appreciated the evidence in uniform way. Different yard-sticks have been adopted to appreciate the evidence of the parties. The learned Judge accepts the evidence of RW. 1 and 2 even though there was no marriage invitation, no photographs and no registration records. But, on the every same ground, the Court below disbelieved the version of P.W. 1 relating to her marriage with RW. 1. In the light of the evidence of PWs. The learned Judge accepts the evidence of RW. 1 and 2 even though there was no marriage invitation, no photographs and no registration records. But, on the every same ground, the Court below disbelieved the version of P.W. 1 relating to her marriage with RW. 1. In the light of the evidence of PWs. 1 and 2 coupled with the birth extract relating to the 2nd petitioner, there is prima facie material to come to the conclusion that there was marriage between P.W. 1 and RW 1 and thereafter they lived together as husband and wife. The trial Court has adverted that no woman can simply claim a man as her husband. But, the same logic can be made applicable to the case of PW. 1 also. Under the circumstances, I am of the view that the entire approach made by the Court below is not proper and correct. There is sufficient evidence to come to the conclusion that there was a valid marriage between P.W. 1 and RW. 1 and the 2nd petitioner was born out of the said wedlock. Considering the fact that RW. 1 is now having illicit connection with RW. 2, I am of the view that there is every justification for the petitioners to claim maintenances. It has been uniformly stated by PWs. 1 and 2 that RW. 1 is gainfully employed as sweeper in Municipality and records have been filed to show that he was getting more than Rs. 2000/- per month. Now the amount claimed by the petitioners are on the higher side. Considering the nature of life and custom of the parties and other circumstances. I am of the view that PW. 1 can be granted sum of Rs. 250/- per month and a sum of Rs. 250/- per month can be granted to the 2nd petitioner. Hence, the points are answered accordingly. For the reasons stated above, the revision is allowed and the order passed in MC 49/95 is set aside and the petition is allowed and the respondent is directed to pay a sum of Rs. 250/- per month for each of the petitioners by way of maintenance from the date of main petition. Revision allowed.