Salomon v. Elizabeth & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.06.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.819 of 2006andM.P.No.1 of 2006Salomon... Petitioner /Respondentvs.1. Elizabeth2. Minor Napoleon... Respondents/Petitioners Prayer: Petition filed under Sections 397 and 401 of Cr.P.C. againstthe order passed by the learned Judicial Magistrate, Arakkonam inM.C.No.3 of 1999 dated 06.04.2006 and pray for setting aside thesame.For Petitioner : Ms.J.Juliet PushpaFor Respondents : Mr.N.Subbarayalu O R D E R Animadverting upon the order dated 06.04.2006, passed by thelearned Judicial Magistrate, Arakkonam in M.C.No.3 of 1999, thisCriminal Revision case is focussed.2. A 'resume' of facts which are absolutely necessary andgermane for the disposal of this revision would run thus:The respondents herein filed M.C.No.3 of 1999 under Section125 of Cr.P.C. claiming maintenance as against Salomon, the revisionpetitioner herein on the ground that the first respondent herein,namely Elizabeth and Salomon had love affair with each other and inthat process Elizabeth became pregnant due to the revisionpetitioner's access with her. As such, even while she was pregnant,by the intervention of the elders, they underwent shot gun marriageand thereafter, the minor child R2 herein, Napoleon was born.Inasmuch as the revision petitioner herein started estranging therespondents herein, whereupon, they were constrained to file the saidM.C. claiming maintenance.3. During enquiry, on the side of the respondents herein,P.Ws.1 to 3 were examined and no document was marked. On the side ofthe revision petitioner herein, no oral or documentary evidence wasadduced. https://hcservices.ecourts.gov.in/hcservices/

4. Ultimately the Magistrate Court awarded maintenance, asagainst which revision was filed before the Sessions Judge and thematter was remanded back to the Magistrate Court. Thereafter, theMagistrate passed an order awarding maintenance. Being aggrieved bythe order by the Magistrate Court, this present revision has beenfiled on various grounds, the pith and marrow, the nitty gritty ofthem would run thus:Due opportunity to cross examine P.Ws.1 to 3 was not giveneven after remand order passed by the Sessions Judge. Without anyevidence, much less reasonable evidence, the Magistrate went to theextent of holding that there took place marriage between the revisionpetitioner herein and the first respondent and that R2 is thelegitimate child of the revision petitioner. There is nothing toindicate that the minor was born to the petitioner. Accordingly therevision petitioner prayed for setting aside the order of theMagistrate Court in awarding maintenance.5. Heard both sides.6. The point for consideration is as to whether the orderawarding maintenance by the Magistrate is perverse and one emergedwithout any evidence on record and that too without giving dueopportunity to the revision petitioner to put forth his case by crossexamining the witnesses P.Ws.1 to 3. 7. The learned counsel for the revision petitioner wouldinvite the attention of this Court to the deposition of P.Ws.1 to 3and submit that no cross examination was found recorded; that unlessa witness is subjected to cross examination, his evidence cannot berelied on by a Court of law. Whereas, by way of torpedoing andpulverizing the case of the revision petitioner as put forth by thelearned counsel for the revision petitioner, the learned counsel forthe respondents herein would develop his argument to the effect thatabsolutely the revision petitioner herein did not take any steps tocross examine P.Ws.1 to 3 even after remand and no application alsowas filed for recalling those witnesses, on the other hand, therevision petitioner was hellbent to drag on the matter and tried hislevel best to wriggle out of his liability to pay maintenance.8. A bare perusal of the records would reveal and display thatP.Ws.1 to 3 were not cross examined for which the learned counsel forthe revision petitioner would submit that no opportunity was givenand in fact, she would also invite my attention to the docket orderpassed by the Magistrate concerned which is found available at pageNo.11 of the typed set. A plain reading of it would reveal that on06.03.2006 the matter was reopened after remand, on 20.03.2006adjournment was sought on some grounds, where upon, adjournment wasgiven by the Magistrate. Thereafter, on 04.04.2006, the Magistraterecorded to the effect that both sides stated that they had no moreevidence. Whereupon after hearing both sides on 06.04.2006, theMagistrate passed the order of maintenance. If at all the revisionpetitioner had the real and genuine intention to cross examine P.Ws.1to 3, he would have very well filed an application as per Cr.P.C. for https://hcservices.ecourts.gov.in/hcservices/ recalling those witnesses for the purpose of cross examination, butthere is nothing to indicate and exemplify that any step was taken bythe revision petitioner in that regard. In fact, the docketendorsement made on 04.04.2006 by the Magistrate would amply make thepoint clear that the revision petitioner straight away wanted toargue the matter from the available evidence. Hence in such a case,the principle audi alteram partem cannot be extended ad infinitum orad nauseam but only to a reasonable extent, the principles of naturaljustice can be adhered to. 9. Under Section 125 Cr.P.C., summary proceedings arecontemplated. The very respondent therein i.e. the revisionpetitioner herein did not insist for cross examining the witnesses,for which the Magistrate cannot be found fault with. As such, I amof the opinion that the revision petitioner cannot be heard tocontend that due opportunity was not given to cross examine thosewitnesses. 10. However, from a plain reading of the very deposition ofP.Ws.1 to 3 coupled with the averments as found set out in thepetition under Section 125 Cr.P.C., it could readily be understoodthat absolutely there is no iota or shred, shard or miniscule,molecular or scintilla of evidence to demonstrate and display thatbetween the said Elizabeth and Salomon there took place any legalmarriage. It is not at once clear whether they are Christians orHindus or that they belong to any other religious denomination. InIndia it is very clear that an Indian Christian cannot on par withSuyamariyatha marriage as contemplated under 7-A of the HinduMarriage Act undergo a form of marriage. Necessarily IndianChristian should undergo marriage only under the Indian ChristianMarriage Act. I am also fully aware of the fact that as per theIndian Christian Marriage Act, if any one of the parties to themarriage is a Christian, that would be sufficient. Here there is nowhisper at all as to what form of marriage the said Elizabeth andSalomon underwent before the Panchayatar. P.Ws.2 and 3 would simplydepose as though they arranged for the marriage between Elizabeth andSalomon without committing themselves as to what sort of marrige theyunderwent and what sort of marriage P.W.2 solemnized for them. Hencein such a case, it is clear that the Magistrate was totally wrong injumping to the conclusion that a legitimate marriage took placebetween Elizabeth and Salomon and such a finding is liable to be setaside. I also make it clear that I do not in any way give a findingthat no valid marriage could have taken place at all betweenElizabeth and Salomon and what I record here is that as per evidenceavailable there is nothing to indicate that a legal marriage tookplace between Elizabeth and Salomon. Accordingly the finding of theMagistrate that Elizabeth and Salomon underwent legal marriage isrequired to be set aside. Consequently and as a sequele, theawarding of maintenance by the Magistrate directing the complainantto pay maintenance to Elizabeth is set aside. 11. Regarding awarding of maintenance by the Magistrate infavour of the minor child, I would like to point out that proceedingsunder Section 125 Cr.P.C. is summary in nature and hence believingthe version of P.Ws.1 to 3 the Magistrate held that Elizabeth and https://hcservices.ecourts.gov.in/hcservices/ Salomon loved each other and in that process, Elizabeth becamepregnant through Salomon and delivered a child and such a findingwarrants no interference. In a summary proceeding, clinchingevidence relating to parentage cannot be expected. In this case, thewitnesses in unison would state that virtually Elizabeth and Salomonlived together for a considerable time and in that process Elizabethbecame pregnant and thereafter, before Panchayatars, the allegedmarriage took place.12. My discussion supra would indicate and exemplify thatthere is no evidence to prove the legal marriage. However, there isadequate evidence to prove and demonstrate that Elizabeth and Salomonlived together and they gave birth to the child. 13. It is a trite proposition of law that even an illegitimatechild is entitled to claim maintenance from his/her father. Hence insuch a case, absolutely there is no flaw in the judgment of the lowerCourt in awarding maintenance in favour of the child in a sum ofRs.450/- per month payable by the revision petitioner from the dateof the petition.14. The learned counsel for the revision petitioner wouldimplore and entreat, pray and request that in the event of this Courtconfirming the order of maintenance in favour of the child, letmaintenance be directed to be paid from the date of the order of theMagistrate or at least from the date of remand order passed earlierby the learned Sessions Judge. I am of the view that such an orderwould operate as a bad precedent affecting enumerable hapless andhelpless victims of desertion and neglect and hence a fortiori, Ihold that ordering the respondent to pay maintenance in a maintenanceapplication under section 125 Cr.P.C. from the date of O.P. is therule and ordering otherwise is only an exception. Accordingly Iconfirm the order of the Magistrate in awarding maintenance infavour of the child and the order of maintenance passed by theMagistrate in favour of the wife is set aside.Accordingly, this criminal revision petition is allowed inpart. Consequently, connected miscellaneous petition is closed.gmsSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Judicial Magistrate, Arakkonam2. Do Through The Chief Judicial Magistrate, North Arcot at Vellore. https://hcservices.ecourts.gov.in/hcservices/ Copy to:The Section Officer, Criminal Section, High Court, Madras.+ 1 cc to Mr. N. Subbarayalu, Advocate, SR No.23575+ 1 cc to Mrs. P. V. Rajeswari, Advocate, SR No.24031BKY(CO)SR/23.7.2009Crl.R.C.No.819 of 2006