Kurian Joseph, J. 1. A destituted wife and her child, both in distress, claiming maintenance from the husband/father are the petitioners in M.C No. 173 of 1992 on the files of the Family Court, Thiruvananthapuram. According to the 1st petitioner-wife, both the husband and wife are Hindu Nadars and they were joined in wedlock in January, 1982. During the subsistence of the said marriage, she became pregnant and during the fourth month of pregnancy she was taken to her house and was neglected thereafter. She gave birth to the 2nd petitioner on 8.3.1983. Unable to maintain herself and the child, she claimed maintenance for herself and the child from the counter petitioner-husband who had sufficient means to provide maintenance to them. The husband denied the existence of marriage between the parties as also paternity of the child.
2. The Family Court framed issues regarding existence of marriage between the parties, entitlement of the 1st petitioner-wife to separate maintenance and the quantum of maintenance. On the side of the petitioners, the 1st petitioner was examined as P.W. 1 and two others were examined as P.Ws. 2 and 3. The counter-petitioner examined herself as C.P.W. 1 and another person was examined as C.P.W. 2. Ext. P1 Birth Certificate of the 2nd petitioner was proved by P.W. 1 and Ext. Dl extract of the admission register of counter-petitioner was proved by C.P.W. 1. On going through the evidence, the Family Court came to the conclusion that the 1st petitioner is the legally wedded wife of the counter-petitioner and that the 2nd petitioner was born in the wedlock. It was also found that since the counter-petitioner had denied the existence of marriage and also paternity of the child which tantamounts to cruelty, the 1st petitioner is entitled for separate maintenance. Hence the Family Court allowed maintenance at the rate of Rs. 150/- per month to the wife and Rs. 100/- to the daughter. This appeal is filed by the aggrieved husband/father.
3. It is contended by the appellant that there existed no marriage between the appellant and the 1st respondent and, at any rate, there was no evidence to substantiate the same. According to the appellant, he is a bachelor belonging to Christian Community and he had not married the 1st respondent who is admittedly a Hindu. He also denies the parenthood of the 2nd respondent.
4. Two interesting questions thus arise for consideration in this appeal: (1) Is it necessary to conclusively establish the marriage in order to claim maintenance by a destitute wife from her husband ? (2) What is the impact of an order under Section 125 on the respective status of the parties ? As both the issues are inter-connected, we shall deal with them jointly after analysing the factual position in the case.
5. P.Ws. 1 to 3 have categorically stated regarding the marriage ceremony conducted on 17.1.1982. They have also stated regarding the persons who participated in the marriage, particularly regarding the sister of the appellant and her husband. It is significant in this context to note that the 1st respondent, admittedly, is a close neighbour of the said sister of the appellant. The marriage, according to those witnesses, was performed in the presence of a Poojari according to the custom and convention prevailing in their community. True, this is controverted by C.P.Ws. 1 and 2. The appellant maintained that he is a Christian and there could not have been a valid marriage between himself and the 1st respondent in the manner described by her. It may be seen that his claim of being a Christian is solely based on Ext. Dl certificate produced by him wherein it is stated that his community is "Nadar SIUC". Strangely, when he was asked what "SIUC" actually meant, he was not in a position to explain. He only stated that he belongs to C.S.I. Christian denomination. Apparently, for someone to prove his community as Christian, he could as well get any number of convincing pieces of evidence regarding his membership in the Church, his family register kept in the Parish, etc. However, no such evidence was adduced by the appellant. In the absence of such convincing evidence and in the face of his inability to explain his community status as noted in Ext. Dl, the learned Family Court Judge observed that he was only a Hindu. The names of his parents also prompted the Family Court to arrive at such a conclusion. Whatever that may be, there was ample evidence before the Family Court to arrive at a strong prima facie satisfaction that a ceremony of marriage was performed between the appellant and the 1st respondent.
6. On behalf of the 1st respondent a petition was filed before the Family Court, in the context of appellant's denial of paternity of 2nd respondent, calling upon him to undergo DNA test. However, appellant strongly objected to it and refused to undergo the test. In his evidence also the appellant stated that he was not prepared to undergo DNA test. He emphatically stated that he was not prepared to undergo any test for proving parenthood of the 2nd respondent. It is also significant in this context to note Ext. P1 Birth Certificate of the 2nd respondent wherein the date of birth is shown as 8.10 1993 and against the column for the names of father and mother, the names of appellant and the 1st respondent are shown. We are of the view that the Family Court Judge has hence rightly held that 1st respondent is the wife and 2nd respondent is the daughter of the appellant, for the purposes of Section 125, Cr.P.C.
7. As held by the Supreme Court in Santosh (Smt.) v. Nares hPal, 1998 (8) SCC 447, "In a proceeding for maintenance under Section 125, Cr.P.C. the learned Magistrate was expected to pass appropriate orders after being prima facie satisfied about the marital status of parties".
8. We do not propose to unsettle the finding entered by the Family Court Judge based on the natural course of evidence led before her and other documentary evidence. In the words of Arijit Pasayat, C.J. in the Bench decision in Mohanan v. State of Kerala, 2000 (2) Ker. LT 562=IV (2000) CCR 409 (DB), "If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the Appellate Court which had not this benefit will have to attach the due weight to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details". Not only that, in a proceeding under Section 125, Cr.P.C. the standard of proof for a marriage is not so high as required in other proceedings.
9. In Sreedharan v. Pushpa Bai, 1978 Ker. LT 26, P. Janaki Amma, J. dealt with a similar suggestion of marriage in Nadar community between a Hindu and a Christian and observed thus :
"It is now settled law that the standard of proof required for a marriage in proceedings for maintenance under the Code of Civil Procedure is not so high as is required in connection with proceedings under the Indian Divorce Act or in a prosecution for bigamy under the Indian Penal Code.... Therefore the fact that the petitioner and the respondent follow different religions need not necessarily mean that there could be no marriage between them and the respondent will not get the status of a wife even after undergoing the ceremony of marriage."
10. S. Sethurathinam Pillai v. Barbara @ Dolly Sethurathinam, 1970 (1) SCWR 589, was again a case of disputed marriage between Hindu male and a Christian woman. There the Supreme Court was of the view that if there was some evidence on which the conclusion could be reached, that was sufficient to justify a finding of marriage between the parties for the purpose of granting maintenance to a deserted wife. In the instant case, it cannot be denied that there was definitely some strong evidence regarding the ceremony of marriage. That apart, the defiant stand of the appellant in refusing to undergo DNA test would also lead to a strong prima facie satisfaction as to the existence of marriage between the appellant and the 1st respondent, and the paternity of the 2nd respondent. In a recent judgment of the Apex Court in Dwarika Prasad Satapathy v. Bidyut Prava Dixit, 1999 (8) JT (SC) 329=VIII (1999) SLT 508=IV (1999) CCR161 (SC), in the case of the appellant therein refusing to undergo DNA test, the Court ordered that "this means appellant is disentitled to dispute the paternity of the child. This is recorded...".
11. Thus, on the facts and the law as stated above as also the evidence available, we hold that the Family Court was perfectly justified in entering a strong prima facie satisfaction as to the existence of marriage between the appellant and the 1st respondent. It is not necessary to have conclusive evidence of marriage under Section 125, Cr.P.C. to award maintenance to a destitute wife from her husband. After all, Section 125, Cr.P.C. "is a measure of social justice and specially enacted to protect women and children", [U.L. Bhat, J. in Balan Nair v. Valsalamma, 1986 Ker. LT 1378].
12. The scope of Section 125, Cr.P.C. has been exhaustively dealt with by Krishna Iyer J. in Ramesh Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807. At paragraph 9 of the said judgment, it is observed that:
"This provision is a measure of social justice and specially enacted to protect women and children and falls within the constituted sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts."
The said decision has been followed in Dwarika Prasad's case (supra), and it is observed in paragraph 10 as follows :
"The provision under Section 12S is not to be utilized or defeating the rights conferred by the Legislature to the destitute women, children or parents who are victims of social environment."
13. The impact of an order under Section 125 on the respective status of the parties is an issue no more res Integra. In Sethurathinam Pillai's case (supra), this position has been clearly settled as follows :
"The order passed in an application filed under Section 488 of the Code of Criminal Procedure is a summary order which does not finally determine the rights and obligations of the parties thereto. It is an order made in a proceeding under a provision enacted with a view to provide summary remedy for providing maintenance, and for preventing vagrancy. The decision of the Criminal Court that there was marriage and that it was a valid marriage will not operate as decisive in any civil proceeding between the parties for determining those questions."
It is certainly open to the parties to approach the Civil Court and that is why the Legislature in its wisdom has provided in Section 127(2) as follows :
"(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly."
14. Before concluding we may also incidentally deal with a submission made by the learned Counsel for the appellant. It was submitted that the finding regarding his community status as Hindu might result in serious repercussions on him. We make it clear that the said finding is one recorded only for the purpose of the case under appeal and it will not be taken as such elsewhere for the purpose of his community status.
15. In view of what is stated above, we do not see any reason to interfere with the order of the learned Family Court Judge and accordingly the appeal is dismissed. There will be no order as to costs. However, we make it clear that it will be open to the appellant, if so advised, to seek recourse to his remedies as provided under Section 127(2) of the Code of Criminal Procedure.