CRL RC/76/2001 of SEERANGAN Vs SELVI on 5 December 2002

:ORDER

The criminal revision petition is directed against the orderof the learned Judicial Magistrate No.II, Metturdam, Salem District dated 14.12.2000 made in M.C.No.4 of 1992. Against the order granting maintenance atthe rate of Rs.400/- per month in favour of the wife, husband has preferredthe above revision.

2. According to the respondent herein - petitioner in M.C.No.4 of 1 992, she married the petitioner herein on 29th Avani, 1990,according to their caste customs at Bhavani Kuduthurai Temple. From the saiddate, they lived together till June, 1991, when she was driven from hermatrimonial home to get dowry from her parents. After panchayat, she wastaken back by her husband on 08.10.1991 and again she was driven on 11.10.1991and from there onwards, according to her, she is living separately. Since sheis not possessed of any property and unable to maintain herself, she filedM.C.No.4 of 1992 for claiming maintenance at the rate of Rs.500/- per month.

3. The said petition was resisted by the petitioner herein - respondent therein, by filing a counter statement. It is stated that nomarriage had taken place between him and the respondent herein and there is norelationship of husband and wife. He also denied the panhcayat said to havetaken place. It is stated that he already married to one Mani @ Sakunthala and even now he is living with her. He further stated that out of theirwedlock, a daughter by name Sudha was born to them and she is nine years old.According to him, the respondent was his kept mistress for a period of 1 «years and he denied all other allegations made against him.

4. Before the Court below, the wife herself was examined as P.W.1 and three more witnesses as P.Ws.2 to 4 and also marked Exs.P.1 to P.4in support of her claim for maintenance. On the other hand, the husbandhimself was examined as R.W.1 and one Krishna Pandiyan, Executive Officer ofSangameswarar Temple was examined as R.W.2 and marked Exs.R.1 to R.7 insupport of his defence.

5. The learned Judicial Magistrate, on appreciation of oral and documentary evidence, after holding that there is no acceptable evidenceregarding the first marriage with Mani @ Sakunthala, the petitioner therein iswife of the respondent therein and she is unable to maintain herself, grantedmaintenance at the rate of Rs.400/- per month. Questioning the said order,the husband has preferred the present revision.6. Heard the learned counsel for the petitioner as well asrespondent.

7. Mr. V. Sairam, learned counsel for the petitioner, after taking me through the oral and documentary evidence and the impugned order ofthe learned Magistrate would contend that inasmuch as the husband hassatisfactorily proved his marriage with Mani @ Sakunthala and while the saidmarriage was in subsistence, the alleged second marriage with the respondentherein is void and nullity, accordingly, she is not entitled maintenance.

8. On the other hand, Mr. P. Jagadeesan, learned counsel for the respondent herein - wife would contend that in the absence of anypositive evidence regarding the earlier marriage with Mani @ Sakunthala and inview of the fact that her marriage with the petitioner herein has beenestablished, she was deserted and unable to maintain herself, the learnedJudicial Magistrate is fully justified in granting maintenance.

9. I have carefully considered the rival submissions.

10. The only point for consideration in this revision is,

whether the petitioner herein - husband has established his marriage with Mani@ Sakunthala, prior to his marriage with the respondent herein?

11. If it is established that there is a valid marriage between him and the said Mani @ Sakunthala, undoubtedly, the respondent hereincannot get any maintenance, because her marriage with the petitioner herein isa nullity. This is clear from the following decisions in the case ofYamunabai Anantrao Adhav vs. Anantrao Shivram Adhav and another reported in1988 Supreme Court Cases (Cri.) 182; Khemchand Om Prakash Sharma vs. State ofGujarat and another reported in 2000 Supreme Court Cases (Cri.) 748;Gnanaselvam vs. C.K. Madhavan reported in 2 002 (1) L.W. (Crl.) 305. Letme consider the oral and documentary evidence relied on in support of the saidclaim. Except his oral evidence as R.W.1, no other person, particularlyelderly person or who participated in the marriage between him and Mani @

Sakunthala was examined. R.W.2 - Krishnapandian is nothing to do with thefirst marriage and he is an Executive Officer of Sangameswarar Temple, Bhavaniand he was examined only to show that the second marriage was not performedwith the respondent herein on the date and time as alleged by her.

12. Learned counsel for the husband has very much pressed into service, the Voters List - Ex.R.3. No doubt, in the 1984 Voters List,there is a reference to the effect that Sakunthala is the wife of Sreerangan(petitioner herein). The learned Magistrate, after noting that the saidVoters List has not been authenticated by the Officer competent, refused torely on the same. In the light of the above contention, I have also verifiedEx.R.3. Though the name of Sakunthala is mentioned as wife of Sreerangan, asrightly observed by the learned Magistrate, except the printed sheets, thesame have not been certified as true copy or authenticated by the Officerconcerned or a Revenue Officer, who is authorised to certify the same.Accordingly, I am of the view that the learned Magistrate is right inrejecting the said document.

13. The other document relied on by the learned counsel for the petitioner is Ex.R.4 - Family Card, wherein there is a reference to thename of the parents and his wife. A perusal of Ex.R.4 shows that " Mani" hasbeen described as wife of the petitioner - Sreerangan. There is no referenceto the alias name and the name Sakunthala has not been mentioned in Ex.R.4.Though in the evidence, R.W.1 has stated that his first wife Sakunthala iscalled "Mani", the same has not been stated so in his counter statement, norfound in Exs.R.3 and R.4. In such a circumstance, the learned Magistrate isperfectly right in rejecting Exs.R.3 and R.4 and holding that there is noacceptable evidence to prove the marriage between the petitioner herein andthe Sakunthala.

14. I have already referred to the fact that there is no one who participated in the marriage was examined on the side of the petitioner.One more aspect is to be noted that though the marriage is said to have takenplace between them and a Daughter by name Sudha was born to them, her namedoes not find place either in Exs.R.3 and R.4. The explanation that he failedto inform the name of their daughter to the concerned authorities, cannot beaccepted.

15. Mr. V. Sairam, has also very much relied on the report

and Charge Sheet - Exs.R.5 and 6. It is true that on the complaint by therespondent herein - Inspector of Police, Sankari charge sheeted the petitionerherein and the matter was seized by the Judicial Magistrate, Sankari inC.C.No.87 of 1993. Though there is a reference regarding the marriage betweenthe petitioner herein and Sakunthala, as rightly stated by the learned counselfor the respondent herein that a statement recorded by the police during theinvestigation is not at all admissible in evidence and the proper procedure isto confront the witnesses with the contradictions when they are examined andthen ask the Investigating Officer regarding those contradictions. It issettled law that the statement recorded under Section 116 of the CriminalProcedure Code shall not be used for any purpose, except a directory evidence in the manner prescribed under Section 162 (1). It is clear from thedecisions of the Supreme Court in the case of Podda Narayana and others vs.State of Andhra Pradesh reported in A.I.R. 1975 Supreme Court 1252 and BaldevSingh vs. State of Punjab reported in 1990 (4) S.C.C. 692. Even otherwise,it is not disputed that the criminal proceedings initiated against the husbandhas been quashed by this Court. In such a circumstance, the statement of therespondent recorded by the police under Section 161 Cr.P.C cannot be helpfulto the stand taken by the petitioner herein.

16. Further, the Magistrate in a petition filed under Section 125 Cr.P.C for maintenance, is not competent to decide the validity ofmarriage like a civil Court. If the Magistrate has any doubt, as observed inthe case of Rudramma vs. H.R. Puttaveerabhadrappa reported in 1987 Crl.L.J. 677 (Karnataka High Court), the proper course is to grant maintenance,leaving husband to establish invalidity in competent Court. Further, in apetition filed for maintenance, if the husband takes a plea that there is afirst marriage with another lady and the present claim is not maintainable,the burden is on the husband and it is for him to satisfactorily prove thesubsistence of earlier marriage, which is legal and valid. Section 125Cr.P.C. is meant to achieve a social purpose and it provides speedy remedy tothe deserted wife. In the light of the above object and in view of the factthat the petitioner - husband, miserably failed to satisfactorily prove thesubsistence of earlier marriage, which is legal and valid and of the fact thatthe respondent herein has established that her marriage with the petitioner byacceptable evidence, I am in agreement with the conclusion arrived at by thelearned Magistrate. Further, the defence of the husband that while respondentherein was doing cooli work, he had an intimacy with her and kept her for aperiod of 1 « years cannot be accepted and it is also improbable. I havealready referred to the fact that no other person from his place was examinedin support of his claim and the same was rightly rejected by the learnedMagistrate.

17. Coming to the quantum, it is seen from the evidence of P.W.1 that her husband is having agricultural land to the extent of 7 acresand getting Rs.5,000/- per month. Even if the petitioner herein is treated asa cooli, as rightly observed by the learned Magistrate, he would getRs.1,500/- per month. Since it is the case of the wife that she is notpossessed any property and not getting any income, undoubtedly, she is to bemaintained by her husband. In such a circumstance, the grant of Rs.400/-towards maintenance cannot be said to be either excessive or unreasonable.

In the light of what is stated above, I do not find any validreason to interfere with the order of the learned Judicial Magistrate.Consequently, the revision fails and the same is dismissed.In view of the dismissal of the main revision, connectedCrl.M.P., is also dismissed.

Index:YesInternet:Yeskh

To1. The Judicial Magistrate No.IIMettur Dam, Salem District (with records if any)

2. The Judicial Magistrate No.IIMettur Dam through the Chief JudicialMagistrate, Salem District.