CRL RC/1703/2002 of 1.CHENNA Vs MATHIYALAGAN @ CHINNARAJ on 20 December 2002

:ORDER

Aggrieved by the order of the Second Additional Sessions Judge, Salemdated 16.04.2002, made in CRP.No.27 of 1998, reversing the order dated30.03.1998, made in M.C.No.1 of 1996 on the of the Judicial Magistrate No.II,Mettur, the petitioners have preferred the above revision before this Court.

2. According to the first petitioner, the marriage between herselfand the respondent took place on 25.10.1989 at Dasakaradu Perumal Koil,Panapuram, as per their caste custom. Out of the said wedlock, thepetitioners 2 and 3 were born to them. It is the further case of the firstpetitioner that from the beginning, the parents of the respondent were notextending co-operation in running the family and always giving pinpricks tothe first petitioner. She has also stated that the respondent oftenill-treated her and the respondent driven her away from the matrimonial homealong with their child. It is further stated that in spite of variation, therespondent continued the illtreatment. Having no remedy and unable tomaintain herself, the petitioners filed M.C.No.1 of 1996 before the JudicialMagistrate No.II, Mettur claiming Rs.500/- per month for each one of them.

3. The respondent filed a counter statement disputing various

4. Before the trial Court, the first petitioner herself was examined as P.W.1 and one Palanisamy was examined as P.W.2 and also marked Exs.P.1 toP.5 in support of their claim for maintenance. On the other hand, therespondent himself was examined as R.W.1 and no documentary evidence was letin.

5. The learned Magistrate on appreciation of the oral and documentaryevidence and after holding that there was a valid marriage between the firstpetitioner and the respondent and petitioners 2 and 3 were born to them,granted the maintenance at the rate of Rs.350 to the first petitioner, Rs.250to the second petitioner and Rs.150 to the third petitioner. Aggrieved by thesaid order, the respondent herein has preferred the revision in CRP.No.27 of1998 before the Second Additional Sessions Judge, Salem.

6. The learned Sessions Judge disbelieved the case pleaded by thepetitioners and after holding that the first petitioner failed to establishher marriage with the respondent and also failed to establish that thepetitioners 2 and 3 were born out of the wedlock, set aside the order of thelearned Magistrate and dismissed the maintenance petition, hence the presentrevision made by the wife and the children.

7. The learned counsel appearing for the petitioners by drawing myattention to the categorical statement made in the petition, evidence ofP.W.1, P.W.2, one of the panchayatdars as well as Ex.P.5 and the birthcertificates of the petitioners 2 and 3, Exs.P.3 and P.4 respectively wouldcontend that the conclusion arrived at by the learned Sessions Judge cannot besustained. He also argued that with the weighty evidence on the side of thepetitioners regarding the proof for marriage and the birth of petitioners 2and 3, the respondent/husband has not examined any one or marked any documentexcept his oral evidence.

8. I have already referred to the specific case pleaded in themaintenance petition namely that the first petitioner married to therespondent on 25.10.1989 at Dasakaradu Perumal Koil, Panapuram according totheir custom. It is also asserted that the petitioners 2 and 3 were born tothem. In support of her claim, she deposed before the Court regarding thefactum of marriage and the children born to them. It is also her case that inview of the dispute between the first petitioner and the respondent, thematter was discussed by the panchayatdars and a muchalika was executed on28.10.1996, which has been marked as Ex.P.5. Apart from the evidence ofP.W.1, one Palanisamy who witnessed the marriage that took place on 25.10.1989at Dasakaradu Perumal Koil, Panapuram and one of the signatories of MuchalikaEx.P.5 dated 28.10.1996 was examined as P.W.2. He asserted before the Courtthat he participated in the marriage apart from the other relatives andfriends. He also stated that the first petitioner and the respondent livedtogether as husband and wife and petitioners 2 and 3 were born to them. Aftergoing through his oral testimony and the contents of Ex.P.5, Muchalika, I donot find any reason to reject his testimony.

9. In addition to the evidence of P.W.2 and Ex.P.5, the petitioners have also produced birth certificates of petitioners 2 and 3 and marked asExs.P.3 and P.4. As rightly observed by the learned Magistrate, in both birthcertificates, the names of the first petitioner and the respondent have beenmentioned as mother and father of the children. As rightly argued by thelearned counsel for the petitioners, the entries in birth and deathcertificates are public documents and the same are admissible under Section 35of the Indian Evidence Act. The learned Sessions Judge though noted Ex.P.3and P.4, committed an error in discarding both the documents without anyacceptable reason. 10. It is true that it is the petitioners who have toallege and establish the factum of marriage and their entitlement formaintenance. In this case, I am of the view that the petitioners haveestablished their case regarding the marriage between the first petitioner andthe respondent on 25.10.1989 and also the birth certificates of thepetitioners 2 and 3 out of their wedlock, by placing acceptable evidence.Though the petitioners have not examined other persons in addition to P.W.2 ina matter like this, there is no need to examine several persons whoparticipated in the marriage. I have already referred to the evidence ofP.W.2, his specific assertion regarding the factum of marriage and the birthof petitioners 2 and 3. It is to be noted that P.W.2 is also one of theattestors of Ex.P.5 dated 28.10.1996.

11. Considering all these materials and in the absence of any othercontra evidence except the ipse dixit of R.W.1, I am of the view that thelearned Magistrate is perfectly right in accepting the case of the petitionersand the learned Sessions Judge committed an error in rejecting their case andthe same is liable to be set aside.

12. Even regarding the quantum of maintenance, the learned Magistratehas considered the fact that the first petitioner/wife is unable to maintainherself and the fact that the respondent is possessed of agricultural landsand getting sufficient income.

13. Looking at any angle, I am unable to accept the reasoning of thelearned Sessions Judge and I am in agreement with the conclusion arrived at bythe learned Judicial Magistrate No.II, Mettur. Consequently, hence the orderof the Second Additional Sessions Judge, made in CRP.No.22 of 1998 dated16.04.2002 is set aside and the order of the learned Judicial Magistrate -II,Mettur in M.C.No.1 of 1996 dated 30.0 3.1998 is restored.

14. In the result, the Criminal Revision case is allowed.

Index:YesInternet:Yes

KSR

To1. The Second AdditionalSessions Judge,Salem

2. The Judicial Magistrate No.IIMettur.