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OCHAYEE versus PALANIAPPAN

High Court of Madras

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Ochayee v. Palaniappan - Crl.R.C.(MD).No.26 of 2007 [2007] RD-TN 1919 (13 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 13/06/2007

CORAM

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Crl.R.C.(MD).No.26 of 2007

and

M.P(MD)No.1 of 2007

1.Ochayee

2.Minor Alagujothi ... Petitioners Vs

Palaniappan ... Respondent Prayer

Petition filed under Section 397 and 401 of the Code of Criminal Procedure, to call for the records pertaining to Crl.R.P.No.22 of 2006 dated 19.10.2006 on the file of the Principal District and Sessions Judge, Theni and set aside the same.

For Petitioners : Mr.K.P.S.Palanivel Rajan

For Respondent : Mr.S.Palanivelayutham

:ORDER



This Criminal Revision Case is focussed as against the order passed by the learned Principal District and Sessions Judge, Theni, in Crl.R.P.No.22 of 2006 dated 19.10.2006 in setting aside the order of the learned Magistrate in granting maintenance in favour of the first petitioner herein, in M.C.No.22 of 2004 dated 17.06.2006, by the learned Judicial Magistrate, Periyakulam.

2. A re'sume' of facts absolutely necessary for the disposal of this Criminal Revision Case would run thus:

The petitioner Nos.1 and 2 herein filed M.C.No.22 of 2004 before the learned Judicial Magistrate, Periakulam, as against the respondent claiming maintenance on the ground that the first petitioner is the wife and the minor second petitioner is the child, of the respondent and that they are having no source of income to maintain themselves.

3. Per contra, denying and refuting the claim of the petitioners and the legitimate marital relationship between the first petitioner and himself, the respondent filed the counter. Even while admitting the marriage which was solemnised between the first petitioner and the respondent and also the minor second petitioner having been born to them; he would contend that the marriage between the first petitioner and the respondent is illegal and void in view of the fact that the respondent was already married to one Ammavasi and that such marriage was not dissolved and that the petitioners were not entitled to maintenance.

4. Before the learned Magistrate, the first petitioner examined herself as P.W.1 along with P.W.2 and and Ex.P.1 was marked, whereas on the side of the respondent, the respondent examined himself as R.W.1 along with R.W.2 and R.W.3 and no document was exhibited.

5. Ultimately, the trial Court awarded maintenance of Rs.2,000/- (Rupees Two Thousand only) per mensum, in favour of each of the petitioners from the date of application.

6. Being aggrieved by and dissatisfied with, the order of the learned trial Court, the respondent preferred the revision in Crl.R.P.No.22 of 2006 in the Court of the learned Principal District and Sessions Judge, Theni, who after confirming the maintenance awarded in favour of the minor second petitioner, set aside the award passed in favour of the first petitioner, on the ground that there was no legitimate marital relationship between the first petitioner and the respondent.

7. Being aggrieved by such an order of the learned Sessions Judge, this Criminal Revision Case is focussed.

8. Heard both sides in entirety.

9. The point for consideration is as under: Whether the learned Sessions Judge was right in interfering with the finding of fact given by the learned Magistrate that the first petitioner is the wife of the respondent and entitled to claim maintenance? The Point:

10. The learned Counsel for the revision petitioners would submit that the respondent admitted the marriage between the first petitioner and himself, however, he would falsely contend as though there was previous marriage between the respondent and one Ammavasi and that it was not dissolved.

11. Per contra, the learned Counsel for the respondent would contend that the first petitioner herself admitted the marriage between the respondent and one Ammavasi earlier to the first petitioner's marriage with the respondent and hence, the first petitioner was not entitled to any maintenance.

12. At this juncture, I would like to highlight the point that the scope of revision conferred on the Sessions Court is limited and in that connection, there are catena of decisions of the Honourable Apex Court.

13. Adhering to the aforesaid decisions, if the matter is viewed, it is crystal clear that the learned Sessions Judge exceeded his power in unnecessarily interfering with the finding of fact given by the learned Magistrate and that too while dealing with the matter emerged under Section 125 Cr.P.C. The learned Magistrate in paragraph Nos.5 and 6 of its order, elaborately discussed about the previous marriage between the respondent and one Ammavasi and also the plea put forth by the first petitioner that such marriage got dissolved as per custom.

14. This is a complicate question of law. The burden of proof is on the respondent who pleaded that the alleged first marriage contracted by him with one Ammavasi, is a valid marriage in stricto senso. A mere averment by the first petitioner that the marriage between the respondent and one Ammavasi dissolved as per custom, would not absolve the respondent from proving the first marriage strictly in accordance with law. There are no particulars as to when the marriage between the respondent and one Ammavasi had taken place and in which form etc. In this context, I would like to highlight that the Court while awarding maintenance under Section 125 Cr.P.C, is not expected to delve deep into all these facts. In this connection, the decision of the Honourable Apex Court in Vimala v. Veeraswamy reported in (1991) 2 Supreme Court Cases 375. An excerpt from it, would run thus:

"3. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term 'wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term 'wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision. Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125 CrPC, for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children. We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue. The High Court failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appellant. We are, therefore, unable to agree that the appellant is not entitled to maintenance."

15. One another decision of the Honourable Apex Court in Dwarika Prasa Satpathy v. Bidyut Prava Dixit reported in (1999) 7 Supreme Court Cases 675 would also highlight the method of approach of the Court under Section 125 Cr.P.C. An excerpt from it, would run thus:

"6. Learned Counsel for the appellant at the time of hearing had not disputed the paternity of the child. Hence, the question is whether the marriage between the appellant and Respondent 1 was valid or invalid? In our view, validity of the marriage for the purpose of summary proceedings under Section 125 CrPC is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 I.P.C. If the claimant in proceedings under Section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the Court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption. ...

9. It is to be remembered that the order passed in an application under section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed a civil suit, which is pending before the trial Court. In such a situation, this Court in S.Sethurathinam Pillai v. Barbara [(1971) 3 SCC 923 : 1972 SCC (Cri) 171] observed that maintenance under Section 488 CrPC 1898 (similar to Section 125 CrPC) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties."

16. The object of Section 125 Cr.P.C is to provide support to hapless and helpless petitioners who are neglected by the respondent and in such a case, the learned Magistrate as it has been correctly adhered to in this case, properly relied on the prima facie proof of the relationship of wife and husband between the first petitioner and the respondent.

17. The perusal of the orders of both the Courts below would show that the respondent lived with the first petitioner for a decade and a half and during the wedlock, the minor second petitioner was also born to them and in such a case, it would be totally unjustifiable on the part of the respondent to veer round and take a plea that there was no husband and wife relationship between himself and the first petitioner, but they lived together transbroomstickally likely and that too, when she has filed an application to claim maintenance. There is nothing on record to show that earlier to such filing of petition, he had taken any steps to get declared his status in the Civil Court or Family Court. The Civil Court or the Matrimonial Court would be the competent Court to decide finally the marital status of the parties concerned. The findings given by the learned Magistrate are only for the limited purpose of awarding maintenance.

18. In this case, the learned Magistrate by taking into account the available evidence and the reasons stated therein, gave a finding of fact that there exists the husband and wife relationship between the respondent and the first petitioner and accordingly, he awarded the maintenance. In such a case, the learned Sessions Judge, in revision, was not justified in exercising the powers of revision and interfere with such a finding of fact. Ex facie and prima facie, there was illegality in the order of the learned Sessions Judge and he ought to have refrained from exercising his power of revision, but he acted otherwise totally as against the well settled legal position as found set out in the catena of decisions. The learned Sessions Judge went on harping on all the facts as to whether the previous marriage was legally dissolved or not, and there are beyond the scope of revision. If at all, the respondent is aggrieved by the finding of fact given by the learned Magistrate relating to the relationship between the first petitioner and the respondent. It is open for the respondent to approach the Civil Court or Matrimonial Court concerned to get his status declared in the way known to law.

19. The long cohabitation between the respondent and the first petitioner and his admission that he got married with the first petitioner and gave birth to the second minor petitioner, would be sufficient to award maintenance.

20. In the result, the order of the learned Principal District and Sessions Judge, Theni, in Crl.R.P.No.22 of 2006 dated 19.10.2006, in setting aside the order of the learned Judicial Magistrate, Periyakulam, which awarded the maintenance in favour of the first petitioner, is set aside and as such, the net result is that the entire order of the learned Magistrate shall hold good. Accordingly, this Criminal Revision Case to that extent, is allowed. Consequently, connected M.P.No.1 of 2007 is also closed. To

1.The Principal District and Sessions Judge,

Theni.

2.The Judicial Magistrate,

Periyakulam.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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