Rajendran v. 1. Malarkodi2. Malathi3. Anupriya

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.03.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRL.R.C.NO.1831 OF 2003Rajendran.. Petitioner-vs-1. Malarkodi2. Malathi3. Anupriya .. Respondents This Revision is filed against the order passed by Chief JudicialMagistrate, Perambalur in M.C.No. 4 /2003 dated 24.9.2003.For petitioner : : Mr.AR.L.Sundaresan, Senior Counsel for Ms.AL.GandhimathiFor respondents: : Mr.Suresh Babu for Mr.L.P.Balaji Ram.O R D E RThis revision has been preferred against the order passed in M.C.No.4of 2003 on the file of Chief Judicial Magistrate, perambalur,dated24.9.2003.2. The respondent in M.C.No.4 of 2003 on the file of Chief JudicialMagistrate, Perambalur is the revision petitioner herein. The saidapplication was filed under Section 125 Cr.P.C. by his wife Malarkodi andtheir daughters minor Malathi and minor Anupriya. In the saidapplication, the petitioners have claimed Rs.500/- each towardsmaintenance from the revision petitiioner/respondent.3. The short facts in the maintenance petition relevant for thepurpose of deciding this revision are as follows:The marriage between the first petitioner Malarkodi and the respondentRajendran took place at Elampillai Chitrakoil, Salem District and in thewed lock petitioners 2 and 3 were born. Since the second petitioner is afemale child, the respondent threatened the first petitioner to kill thechild to which the first petitioner was not agreed to. Thereafter both thefirst petitioner and the respondent were living at Coimbatore as husband https://hcservices.ecourts.gov.in/hcservices/ and wife. The third petitioner was also born at Coimbatore. The revisionpetitioner/respondent has demanded the first respondent/ first petitionerto bring more dowry from the house of the first respondent herein . Therevision petitioner/respondent has further criminally intimidated thefirst respondent to put an end to the female child and also demandeddowry and insisted the first petitioner to bring 10 sovereign of goldjewels and T.V besides house hold utensils. Since the first petitioner hasrefused to bring more dowry , she began to live with her parents due tounbearable harassment received at the hands of the revisionpetitioner/respondent. The respondent began to live with another woman atKerala. The respondent is working as a Jeep Driver in the Collectorate,Perambalur in Information and Publicity Department. The respondent is awell to do man. But the respondent has neglected to maintain thepetitioners 1 to 3. The first petitioner /first respondent finds it verydifficult to see both ends meet . She would not get sufficient income toprovide wearing apparels, food and other expenses to her children. Hencethe petition for maintenance at the rate of Rs.500/- to each of thepetitioners.4. The respondent in his counter would contend that there is norelationship of husband and wife between him and the first petitionerMalarkodi and that second and third petitioners were not born to thefirst petitioner and the respondent and there was no marriage solemnisedbetween the first respondent and the revision petitioner as alleged in thepetition at Elampillai Chitrakoil, Salem District. The respondent hasfiled O.S.No.327 of 2000 against the petitioners. Only to snatch asubstantial amount from the respondent/revision petitioner, thepetitioners/respondents have filed the petition for maintenance. Therespondent at any point of time has demanded any dowry from the firstpetitioner or never threatened the second and third petitioners to put anend to their life. This respondent is working as a Jeep Driver and isearning only Rs.3,800/- per mensum. After the death of his first wife,Shanthi, the respondent has shifted his residence to Kerimedu at Salemand was residing in the house owned by Bala and Parameswari. The firstpetitioner is the sister of the said Parameswari. The first petitionerhad developed intimacy with the brother of the said Balu viz., Sait andhad left the house along with Sait . After Balu traced them, the firstpetitioner had informed that she became pregnant only through Sait andshe will live only with Sait. Since this revision petitioner/rspondent wasresiding as a tenant in the house of the sister of the first petitioner,with an ulterior motive, the first petitioner has filed the frivolousmaintenance application. The revision petitioner/respondent had marriedone Ramani while he was working at Coimbatore and through the said wedlock, he has been blessed with two sons viz., Kannan and Prasad and nowthe revision petitioner/respondent is living with them at Perambalur.The first petitioner is at present living with one person who belongs toKalottar caste . After leaving Sait and through the said Kalottar casteperson, the first petitioner has given birth to the third petitioner. Atpresent, the first petitioner is living with the person belonging to https://hcservices.ecourts.gov.in/hcservices/ Kolathoor caste along with second and third petitioners. Hence theapplication is liable to be dismissed.5.During the trial, the first petitioner has examined herself as P.W.1and also examined six other witnesses on her side and Exs P1 to P4 wereexhibited . On the side of the respondent, the respondent has examinedhimself as D.W.1 besides examining another witness as D.W.2. No documentwas produced on the side of the respondent. 6. After going through the oral and documentary evidence availablebefore the trial Court, the learned trial Judge has come to a conclusionthat the respondent/revision petitiioner has lived with the firstpetitioner for a quite long time and the first petitioner had given birthto second and third petitioners through the respondent/revisionpetitiioners and hence under section 125 of Cr.P.C., the revisionpetitioner/respondent is liable to pay maintenance to the petitioners andaccordingly fixed the alimony for the first petitioner as Rs.400/- permonth and for second and third petitioners each Rs.300/- permonth.Aggrieved by the findings of the trial Judge, the husband, revisionpetitioner/respondent in M.C.No.4 of 2003 has preferred this revision.7. Now the point for determination in this revision is whether thequantum of maintenance awarded by the trial Court is liable to be setaside for the reason that there was no marriage took place between thefirst petitiioner and the respondent as alleged in the counter statementof the respondent?8.The Point:The trial Court has given a definite finding that the first petitionerhas failed to prove the subsistence of marriage between the firstpetitioner and the respondent through any documentary evidence. Thelearned trial Judge has also pointed out in his Judgment that there arediscrepancies in the evidence of P.W.2 ,P.W.3 and P.W.5 regarding thesolemnisation of marriage between the first petitioner and the respondent.The findings of the learned trial Judge is that there is no documentaryevidence to show that the marriage between the first petitioner and therespondent being conducted in Elampillai Chitrakoil, Salem District. Butthe fact remains that the revision petitioner/respondent and the firstrespondent/first petitiioner have lived together as husband and wife andthat this fact has been proved by the letters written by the revisionpetitioner/respondent under Exs P1 to P4. It is the definite case of thefirst petitioner/first respondent/wife that while the respondent wasresiding as a tenant in the house of the first petitioner's sister atCoimbatore, they fell in love with each other and got married. The learnedtrial Judge relying on the recitals in Exs P1 to P4 to the effect that therespondent has addressed the first petitioner as his wife and alsomentioned the second and third minor petitioners as his children andspecifically mentioned in Ex P2 letter dated 13.11.1989 informing that hisG.P.F., S.P.F, F.B.F and L.I.C. amount were all deposited only in the name https://hcservices.ecourts.gov.in/hcservices/ of the first petitioner Malarkodi. Even though in his deposition asD.W.1, the revision petitioner/respondent would deny his signaturescontained in Exs P1 to P4 are not that of his as pointed out by thelearned trial Judge in his Judgment that he has not taken any steps to getexpert opinion regarding the same by taking steps to send the letters ExsP1 to P4 for comparing the signatures found in Exs P1 to P4 to that ofthe admitted signatures of the revision petitioner/ respondent. Undersuch circumstances, as correctly held by the learned trial Judge, eventhough the marriage between the first petitioner and the respondent hasnot been proved, it has been proved that both the first petitioner and therespondent have lived together as husband and wife and minor second andthird petitioners have been born to them and that the petitioners areentitled to maintenance as per the provisions of Section 125 Cr.P.C.9.When we go to the quantum of maintenance, it cannot be said that thetrial Court has fixed an exorbitant maintenance in favour of thepetitioners. The learned trial Judge has fixed only Rs.400/- per mensumtowards maintenance of the first petitioner and Rs.300/- each per mensumtowards maintenance of the second and third petitioners as against theclaim of Rs.500/- each towards maintenance. Admittedly, the revisionpetitioner/respondent is a Government Servant working as a Jeep Driver inthe Information and Publicity Department earning more than Rs.3,800/-permonth at the time of filing of the petition. Under such circumstances, Ido not find any reason to interfere with the findings of the learned trialJudge in M.C.No.4 of 2003 on the file of the Chief Judicial Magistrate,Perambalur. Point is answered accordingly.10. In the result, the revision is dismissed with costs through out,confirming the Judgment in M.C.No.4 of 2003 on the file of the Court ofChief Judicial Magistrate, Perambalur. Costs Rs.2,000/- [Rupees Twothousand] only.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sg https://hcservices.ecourts.gov.in/hcservices/ To The Chief Judicial Magistrate, Perambalur+ 1 CC To Mr. AL.Gandhimathi, Advocate SR NO.20337+ 1 CC To M/s.Subash Associates, Advocate SR NO.20253Crl.R.C.No.1831/2003klt[co]Gp/12.4