This criminal original petition has been filed under Section 482 of Cr.P.C., to set aside the order dated 04.11.2009 made in Criminal Revision No.23 of 2009 on the file of the I Additional Sessions Judge (Protection of Civil Rights), Thanjavur, whereby, the order of the Chief Judicial Magistrate, Thanjavur at Kumbakonam dated 27.07.2009 in M.c.No.1 of 2007 has been confirmed.
2.It is averred in the petition that the first respondent herein filed maintenance case before the Chief Judicial Magistrate, claiming to be the wife of the petitioner for herself and for minor daughter. The first respondent alleges that the marriage took place between her and the petitioner herein on 11.05.1996 and out of the wed lock, the second respondent was born to them on 28.07.1996. Even prior to the marriage, they had relationship resulting the birth of the second respondent within two months from the date of marriage. Marriage was solemnised in the presence of the relatives including the father of the respondent in the temple and the petitioner herein neglected to maintain the wife as well as the child and therefore, she filed the maintenance case. The petitioner herein disputed the marriage and paternity of the child. Both the Chief Judicial Magistrate as well as the appellate Court held that the first respondent is the wife of the petitioner herein and the second respondent was born to them and therefore, Rs.1,500/- was awarded to each of the petitioners in M.C. Aggrieved by the said order, this criminal original petition has been filed.
3.The learned counsel for the petitioner contends that there is no conclusive documentary evidence about the marriage between the petitioner and the first respondent and the paternity of the child has also not been proved and therefore, the petitioner is not entitled to any maintenance and hence, the petitioner seeks to set aside the order of the I Additional District Judge.
4.The learned counsel for the respondent, per contra, contends that both the Courts below rendered findings holding that marriage was held between the petitioner and the first respondent in temple on the basis of the acceptable evidence and both the Courts found that the second respondent is the child born out of the wedlock of the petitioner and the first respondent and therefore, this criminal original petition is liable to be dismissed.
5.This Court perused the orders of the Sessions Court as well as the Chief Judicial Magistrate Court. Both the Courts below on the basis of the photographs and oral evidence found that marriage between the petitioner and the first respondent was held in the temple and therefore, the first respondent is the wife of the petitioner. It is found that though the petitioner filed petition before the Chief Judicial Magistrate for DNA Test, he failed to subject himself for such test and therefore, the Court below gave findings on the basis of the oral evidence and also considering the fact that the petitioner has not subjected himself for DNA test, that the second respondent was born out of the wedlock between the petitioner and the respondent.
6.The learned counsel for the petitioner submits that the suit filed by the petitioner to declare the alleged marriage as null and void was dismissed for default and he is going to proceed with the suit. Considering the entire facts of the case, the status of the relationship between the petitioner and the first respondent is to be left to the decision of the civil Court.
7.For the purpose of
Section 125 of Cr.P.C., the concurrent finding of the Courts below is suffice to hold that the first respondent being wife and the second respondent as child are entitled to get maintenance from the petitioner. Needless to say that the findings in this maintenance case as to the status about the relationship will not bind the civil Court. Regarding the quantum, the petitioner having employed in Railways and getting good salary is bound to pay maintenance as ordered by the Courts below.
8.In the result, this criminal original petition fails and accordingly, the same is dismissed.
To
1.The I Additional Sessions Judge (Protection of Civil Rights), Thanjavur.
2.The Chief Judicial Magistrate, Thanjavur at Kumbakonam..