Padmavathy v. Govindasamy

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.10.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.20618/2002Padmavathy ..PetitionerVsGovindasamy ..RespondentPrayer:- This Criminal Original Petition is filed against the orderdated 21.12.2001 passed in Crl.RC.No.9/2001 by the learned PrincipalSessions Judge, Chengalput confirming the order passed inMC.No.1/1998 by the learned Judicial Magistrate II, Kancheepuramdated 26.6.2001. For Petitioner:Mrs.R.MayasundariFor Respondent :Mr.S.KalyanaramanORDER This Criminal Original Petition is filed against the orderdated 21.12.2001 passed in Crl.RC.No.9/2001 by the learned PrincipalSessions Judge, Chengalput, confirming the order dated 26.6.2001passed in MC.No.1/1998 by learned Judicial Magistrate II,Kancheepuram.2. The Petitioner filed MC.No.1/1998 before the learnedJudicial Magistrate II, Kancheepuram under Section 125 of Code ofCriminal Procedure claiming maintenance. The Petitioner claimed to bethe legally wedded wife of the Respondent, their marriage having beenperformed on 1.11.1979 as per the Hindu Rites and Customs and aftermarriage they lived for about one year in the native place of theRespondent and out of the wedlock, she had given birth to a femalechild in the year 1981, but the child died at the time of deliveryitself. After that, the Respondent harassed the Petitioner demandingdowry and she was driven out of the matrimonial home. She wasstaying with her parents for 3 years and her attempts to resume theirconjugal rights failed. Therefore, she filed a petition inMC.NO.9/1997 claiming maintenance, but wrongly mentioned the date ofmarriage as 1.11.1997 instead of 1.11.1979 which necessitated her towithdraw the said petition with a liberty to file a fresh petition.Now, she had filed this petition claiming maintenance at the rate ofRs.500/- p.m. from the date of the petition. https://hcservices.ecourts.gov.in/hcservices/

3. The Respondent resisted the petition denying that she isthe legally wedded wife of the Respondent and that she gave birth toa female child in the year 1981. There is no connection whatsoeverbetween the Petitioner and the Respondent. He had married one Kamsalaon 25.9.1979 and through the legal wedlock three children were bornto them. The Respondent is a responsible person in the Society andis working in the Kanchi Kamatchi Cooperative Mill and the petitionhad been filed by the Petitioner to black mail him.4. Though the Petitioner claimed that the marriage wasperformed at Balasubramanyaswamy Devasthanam, Tiruttani, no documentwas filed to prove the said marriage. PW.2, Munusamy who is anemployee in the Hindu Religious and Charitable Endowment Departmentsaid to be related to the Petitioner, did not support her case thatshe cohabited with the Respondent. He had only stated that since thePetitioner and himself studied together at Enathur Panchayat UnionSchool, he was invited for her sister's marriage and denied knowledgeabout the joint cohabitation of the Petitioner and the Respondent.The only evidence available was her sister PW.3, who supported herand deposed that after the marriage of the Petitioner and theRespondent, they had gone to Kanyakumari and PW.3 accompanied them toKanyakumari. 5. The documents MO.1, 2 and 4, photographs exhibited by thePetitioner is of no avail to the Petitioner to prove the marriage. Asrightly pointed out by the court below, those photographs at the mostwould only show the close proximity between them and from that noinference can be drawn that there was a legal marriage between thePetitioner and the Respondent as claimed by the Petitioner. Thoughthe Petitioner stated that she gave birth to a female child in theHospital who died at the time of delivery, but no records have beenfiled to prove the said fact. According to her, she lived at herparents house after she was driven out of the matrimonial home, butshe had not chosen to issue any notice or taken steps for restitutionof conjugal rights for the past three years.6. The voters list Ex.P1 relating to the year 1993, whereinit is seen that the name of the Respondent is mentioned in S.No.870,the name of the Petitioner in S.NO.872 and Kamsala's name is found inS.No.871. The Respondent has filed the birth certificates of histhree children as Exs.R5 to R7 and Exs.R2 and R3 voters list in whichKamsala is shown as the wife of the Respondent. Ex.R4 Ration Cardproduced by the Respondent shows Kamsala as his wife and the names ofthree children are mentioned in the ration card. The three childrenhave been born to him on 23.7.1975, 7.4.1987 and 24.2.1991 asrevealed from the birth certificates Ex.R5 to R7.7. As rightly pointed out by the court below, the first childhad been born on 23.7.1975, i.e. 4 years prior to the allegedmarriage of the Petitioner with the Respondent. Therefore, even https://hcservices.ecourts.gov.in/hcservices/ assuming that there was any marriage between the Petitioner and theRespondent or that they lived together as husband and wife, it couldhave been only after the marriage of the Respondent with Kamsala inwhich case she cannot claim maintenance as a legally wedded wife ofthe Respondent.8. An application under Section 125 of Code of CriminalProcedure is maintainable, only on proof of existence of the conjugalrelationship which is the foundation for having an order forpayment of maintenance. The term 'wife' means only the lega llywedded wife. Though for the purpose of Section 125 of Code ofCriminal Procedure standard of proof of marriage is not as high as incivil court, but when the claim of maintenance has been resisted bythe Respondent on the ground that there is a valid subsistingmarriage between him and one Kamsala in the absence of proof ofmarriage of the Petitioner with the Respondent, she is not entitledto maintenance.9. That apart, the learned Principal Sessions Judge hasupheld the finding of the learned Magistrate that the marriage ofthe Petitioner with the Respondent was not proved and accordingly,the Petitioner is not the legally wedded wife of the Respondent.This is purely a question of fact and the courts below afteranalysing the evidence have found that the Petitioner is not thelegally wedded wife of the Respondent and dismissed the claim ofmaintenance which cannot be interfered with by this court underSection 482 filed Code of Criminal Procedure.10. In the case of Pathumma and another Vs. Muhammed [AIR-1986-SC-1436], the Honourable Supreme Court has held that thequestion as to whether the wife was the legally wedded wife is one ofthe preeminent questions of fact and the High Court was not justifiedin substituting its own view for that of the Magistrate on questionof fact. 11. The learned counsel for the Respondent drew the attentionof this court to the decision of the Honourable Supreme Courtrendered in the case of Shakuntala Devi and others Vs. Chamru Mahtoand another [2009-3-SCC-310] that only in special case the bar underSection 397(3) of Code of Criminal Procedure could be lifted. Thatis, the power of the High Court to entertain a petition under Section482 of Code of Criminal Procedure was not subject to the prohibitionunder sub section 3 of Section 397 of Code of Criminal Procedure andwas capable of being invoked only in appropriate cases.12. In another decision rendered by the Honourable SupremeCourt in connection with the proceedings under Section 125 of Code ofCriminal Procedure in Rajathi Vs. C.Ganesan [1999-6-SCC-326], theclaim of maintenance having been allowed, the husband went inrevision to the Court of Sessions, which dismissed the revision and https://hcservices.ecourts.gov.in/hcservices/ confirmed the order of the learned Magistrate. The husband thenfiled a petition under Section 482 of Code of Criminal Procedure inthe High court, which was allowed by a learned Single Judge, who byhis impugned order, set aside the orders passed by the learnedJudicial Magistrate and the Sessions Judge and dismissed the wife'sclaim for maintenance. The said matter when brought to theHonourable Supreme Court by way of Special Leave Petition, theHonourable Supreme Court held that "the High Court had erroneouslyexercised its powers under Section 482 of Code of Criminal Procedurewhich powers were not a substitute for a second revision under subsection 3 of Section 397 of the Code". The Honourable Supreme Courtalso went on to observe thus:-"The very fact that the inherent powers conferred on theHigh Court are vast would mean that these arecircumscribed and could be invoked only on certain set ofprinciples."13. In a three Judges Bench of the Honourable Supreme Court inthe case of Krishnan Vs. Krishnaveni [197-4-SCC-241], the HonourableSupreme Court has held that having regard to the provision of Section397 (3) of the Code, a "second revision before the High Court afterdismissal of the first one by the court of sessions is barred."While holding as above, the Honourable Supreme Court also observedthat despite the said bar, the inherent power of the High Court underSection 482 of Code of Criminal Procedure was still available, butsuch power had to be exercised sparingly so as to avoid needlessmultiplicity of proceedings, unnecessary delay in trial andprotraction of the proceedings. The present case is not such aspecial case so as to interfere with the well reasoned orders passedby the court below.14. In view of the reasons stated above, this CriminalOriginal Petition is liable to be dismissed and accordingly, it isdismissed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSrcm To1. The Principal Sessions Judge, Chengalput. https://hcservices.ecourts.gov.in/hcservices/

2. The Judicial Magistrate No.II, Kancheepuram.3. -do- Through The Chief Judicial Magistrate, Chengalput at Kancheepuram.+ 1 c.c. to Mrs. R. Mayasundari, Advocate. S.R.No.56390.+ 1 c.c. to Mr. S. Kalyanaraman, Advocate. S.R.No.56445.Crl.OP.No.20618/2002JRG (CO)GSK 02.11.2009.