Premasundari v. R.Natarajan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.11.2010CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCrl.R.C.No.1878 of 20071.Premasundari2.N.Vanathi (minor)represented by her mother andguardian Mrs.Premasundariboth residing at No.18, Thomaiyappan StreetRoyapettah, Chennai 600 014. ...Petitioners/PetitionersVersusR.Natarajan ...Respondent/RespondentCriminal revision filed under Section 397 and 401 Cr.P.C.,against the order passed in M.C.No.410 of 2004, on the learned IIAdditional Judge, Family Court, Chennai, dated 07.09.2007.For Petitioner: Mr.C.SundaramurthyFor Respondent: Mr.K.P.Anantha KrishnanORDERThe first revision petitioner is the mother of the secondrevision petitioner who is a minor. The first petitioner filed anapplication under Section 125 Cr.P.C., claiming maintenance forherself and for her minor daughter. The said petition wasdismissed by the learned II Additional Family Court Judge atChennai. Aggrieved by the said order, the petitioners havepreferred this criminal revision petition.2. The case of the first petitioner is that she married therespondent on 20.11.1991 and after the marriage, both of themresided at No.18, Thommayappan Street, Royapettah, Madras. Therespondent herein is an Advocate. Ex.P.1 is the marriageinvitation. Out of the wedlock, the first revision petitionerdelivered a female child on 08.08.1994 and the name of the childis Vanathi. Ex.P.2 is the birth certificate of Vanathi. Afterthe birth of the child, the respondent herein deserted the firstpetitioner and he did not support the family. Ex.P.3 is theprogress report of the minor child Vanathi who was the student ofthird standard. Ex.P.4 copy of the order passed by the PrincipalFamily Court, Madras in M.C.No.77 of 1988 dated 11.06.1990. Asper the said order, the first revision petitioner filed herapplication claiming maintenance from her first husband oneDuraikannan and the said Duraikannan had obtained an ex-partydecree in O.S.No.7233 of 1988 for declaration that the marriage https://hcservices.ecourts.gov.in/hcservices/ was null and void. Thereafter, a compromise was entered intobetween both parties and on the basis of the compromise, themaintenance petition was withdrawn by the petitioner. 3. The case of the respondent is that the first petitioneris not the wife of the respondent and the first petitioner wasalready married to one one Duraikannan and the marriage was insubsistence and the respondent as an Advocate conducted the caseon behalf of the first petitioner in the maintenance proceedingsin M.C.No.54 of 1988 and subsequently that petition was disposedof. The respondent was married to Banumathi on 29.01.1975 and themarriage invitation is Ex.R.1 and the marriage photos are Ex.R.2and the copy of the family ration card is Ex.R.4. In the familycard, the names of the respondent, his wife, daughter, mother andhis brother are mentioned. The respondent had further stated thatEx.P.1 is a concocted one and the name of the first petitioner isnot mentioned and Ex.P.2 birth certificate is also a forged one.4. On the side of the revision petitioner, before thetrial Court, the first petitioner examined herself as P.W.1 andher mother was examined as P.W.2 and Exs.P.1 to P.4 were marked.On the side of the respondent the respondent examined himself asas R.W.1 and Exs.R.1 to R.8 were marked. The trial Court alsoafter analysing the evidence, dismissed the petition filed by thefirst petitioner for the reason that the respondent was alreadymarried to one Banumathi and the petitioner failed to prove thatshe got married to the respondent and lived together as husbandand wife. The trial Court also observed that there was no oral ordocumentary evidence available to prove that the second petitionerwas born through the respondent and the petitioner failed to provethrough scientific test that the second petitioner was bornthrough the respondent.5. The learned counsel appearing for the revisionpetitioners submitted that the trial Court after accepting thatthe marriage between the first petitioner and one Duraikannan wasdeclared null and void, failed to consider the fact that the firstpetitioner got married to the respondent on 20.11.1991 and thetrial Court rejected Ex.P.1 merely for the reason that theprinters' name is not found in Ex.P.1 marriage invitation. Thelearned counsel for the petitioner further submitted that even ifthe maintenance is not granted to the first petitioner, themaintenance should have been awarded to the second petitioner whois the child of the respondent and Ex.P.2, birth certificatecontains the name of the respondent as father of the child. Thelearned counsel for the petitioners further submitted that thetrial Court had observed that there was no scientific test and thefirst petitioner filed an application for DNA test, but it was notordered. The learned counsel for the petitioners also submittedthat the first petitioner and the child are ready to subjectthemselves for the DNA test. The learned counsel for thepetitioners submitted that now some additional documents areavailable such as pregnancy medical record issued by the hospital,birth record and the community certificate of the secondpetitioner and a xerox copy of the family ration card which may betaken into consideration for deciding the issue. https://hcservices.ecourts.gov.in/hcservices/

6. Per contra, Mr.K.P.Anantha Krishnan, learned counselappearing for the respondent submitted that the respondent hadestablished by oral and documentary evidence that the respondentwas married to Banumathi and the first petitioner is not the wifeof the respondent. The learned counsel for the respondent alsopointed out that Ex.P.1 marriage invitation produced by therevision petitioner is concocted for the purpose of the case andalso pointed out that Ex.P.2 birth certificate of the child saidto have been issued by the Corporation of Chennai carries aninterpolation of the initial "R" in Column No.7. The learnedcounsel also submitted that there was no scientific proof to provethe paternity of the child and the documents filed by the firstpetitioner are insufficient and the trial Court having analysedthe oral and documentary evidence has held that the respondent isnot the father of the child and as such this being a revisionpetition, reappraisal of evidence is not proper. The learnedcounsel for the respondent also relied on the decision of theHonourable Supreme Court reported in 1986 Cri.L.J 1070 (Pathummaand another vs. Muhammad). 7. This Court considered the submissions and perused therecords. According to the respondent, he married Banumathi on29.01.1975 and the marriage is still in subsistence. Thedocuments Exs.R.1 to R.8 established the fact that the respondentis the husband of Banumathi. Though it is claimed by the firstpetitioner that she married the respondent on 20.11.1991, itcannot be held as a valid marriage. The trial Court alsoobserved that Ex.P.1 marriage invitation did not contain theprinting press name. On perusal of Ex.P.1, it appears that thefather of the respondent – Rangasamy was inviter for themarriage, but it is mentioned in the invitation itself that therespondent is son of 'Late. Rangasamy.' Therefore, the contentionof the respondent that Ex.P.1 is concocted for the purpose of thecase is to be accepted. Even otherwise, as the first petitioneris not a legally wedded wife, she is not entitled for maintenance.8. Though the first petitioner is not entitled formaintenance, as far as the second petitioner is concerned who isthe minor, it is to be seen whether she is entitled formaintenance. According to the learned counsel for thepetitioners, the first petitioner and the respondent were livingtogether at No.4, Gangaiyamman Kovil street and also in a house atThiru.Vi.Ka Nagar. She gave birth to a child on 08.08.1994 andonly after the birth of the child, the respondent deserted. Asper law, even illegitimate child is entitled for maintenance, butthe trial Court did not grant maintenance to the minor child forthe reason that the petitioner failed to prove through scientifictest that the second petitioner was born to the respondent. It isnot always necessary to prove the paternity of the child throughscientific test. The paternity of the child could be proved evenby acceptable oral and documentary evidence. The birthcertificate Ex.P.2 relating to the second respondent minor childwas filed. This Court perused Ex.P.2, the birth certificateissued by the Corporation of Chennai dated 28.01.1998. In Ex.P.2,it is mentioned that the name of the child as N.Vanathi and her https://hcservices.ecourts.gov.in/hcservices/ date of birth is mentioned as 03.08.1994 and the date ofregistration is 09.08.1994. The name of the father is mentionedas 'Natarajan' and the name of mother is 'Premasundari'. Incolumn No.7, the name of the father is written as 'Natarajan' andhis initial is written as "R". Of course, this "R" is in adifferent ink. May be this "R" written subsequently due to overinterest. But for this reason, Ex.P.2 cannot be rejected. Theevidence of P.W.1 that she and the respondent were living togetheris not shattered in the cross examination. The first revisionpetitioner after her separation from her first husband, for someperiod had been living together with the respondent. Therespondent though given oral evidence as R.W.1, he had bluntlydenied his relationship with the first petitioner. This meredenial is not convincing to this Court. The respondent whiledenying his paternity of the child, he could have preferred anapplication before the trial Court for DNA test and he being anAdvocate, being aware of the procedures could have chosen to filesuch an application, but he conveniently avoided. The case is tobe decided on preponderance of probabilities with the availableevidence. The fact that the first petitioner was kept as amistress by the respondent is established. While so, the secondpetitioner being the child of the respondent is entitled formaintenance.9. The respondent who examined himself as R.W.1 had notstated anything about his income. According to the firstpetitioner, the respondent has got income from his profession andalso has got immovable properties. Even in the counter statementfiled, the respondent had not denied the fact of owningproperties. 10. In the result, this revision petition is dismissed inrespect of the first petitioner and it is allowed in respect ofthe second petitioner. The respondent is directed to payRs.3000/- per month towards maintenance for the second petitioner– Vanathi (minor) and the said maintenance amount should be paidfrom the date of maintenance petition filed before the Court,i.e., 30.07.2004.11. The respondent is directed to pay the monthlymaintenance amount to the second petitioner on or before 10th ofevery month. The arrears of maintenance amount as per the orderof this Court should be paid within three months from the date ofthis order. ksrSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe II Additional Judge, Family Court, Chennai+ 1 cc to Mr. C. Sundaramurthy, Advocate SR No.80716+ 1 cc to Mr. K.P. Anantha Krishnan, Advocate SR No.80715GV(CO)SR/1.12.2010 Order inCRL.R.C.No.1878 of 2007