This Criminal Original Petition is filed against the order dated 21.12.2001 passed in Crl.RC.No.9/2001 by the learned Principal Sessions Judge, Chengalput, confirming the order dated 26.6.2001 passed in MC.No.1/1998 by learned Judicial Magistrate II, Kancheepuram.
2. The Petitioner filed MC.No.1/1998 before the learned Judicial Magistrate II, Kancheepuram under
Section 125 of Code of Criminal Procedure claiming maintenance. The Petitioner claimed to be the legally wedded wife of the Respondent, their marriage having been performed on 1.11.1979 as per the Hindu Rites and Customs and after marriage they lived for about one year in the native place of the Respondent and out of the wedlock, she had given birth to a female child in the year 1981, but the child died at the time of delivery itself. After that, the Respondent harassed the Petitioner demanding dowry and she was driven out of the matrimonial home. She was staying with her parents for 3 years and her attempts to resume their conjugal rights failed. Therefore, she filed a petition in MC.NO.9/1997 claiming maintenance, but wrongly mentioned the date of marriage as 1.11.1997 instead of 1.11.1979 which necessitated her to withdraw the said petition with a liberty to file a fresh petition. Now, she had filed this petition claiming maintenance at the rate of Rs.500/- p.m. from the date of the petition.
3. The Respondent resisted the petition denying that she is the legally wedded wife of the Respondent and that she gave birth to a female child in the year 1981. There is no connection whatsoever between the Petitioner and the Respondent. He had married one Kamsala on 25.9.1979 and through the legal wedlock three children were born to them. The Respondent is a responsible person in the Society and is working in the Kanchi Kamatchi Cooperative Mill and the petition had been filed by the Petitioner to black mail him.
4. Though the Petitioner claimed that the marriage was performed at Balasubramanyaswamy Devasthanam, Tiruttani, no document was filed to prove the said marriage. PW.2, Munusamy who is an employee in the Hindu Religious and Charitable Endowment Department said to be related to the Petitioner, did not support her case that she cohabited with the Respondent. He had only stated that since the Petitioner and himself studied together at Enathur Panchayat Union School, he was invited for her sister's marriage and denied knowledge about the joint cohabitation of the Petitioner and the Respondent. The only evidence available was her sister PW.3, who supported her and deposed that after the marriage of the Petitioner and the Respondent, they had gone to Kanyakumari and PW.3 accompanied them to Kanyakumari.
5. The documents MO.1, 2 and 4, photographs exhibited by the Petitioner is of no avail to the Petitioner to prove the marriage. As rightly pointed out by the court below, those photographs at the most would only show the close proximity between them and from that no inference can be drawn that there was a legal marriage between the Petitioner and the Respondent as claimed by the Petitioner. Though the Petitioner stated that she gave birth to a female child in the Hospital who died at the time of delivery, but no records have been filed to prove the said fact. According to her, she lived at her parents house after she was driven out of the matrimonial home, but she had not chosen to issue any notice or taken steps for restitution of conjugal rights for the past three years.
6. The voters list Ex.P1 relating to the year 1993, wherein it 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 in S.No.871. The Respondent has filed the birth certificates of his three children as Exs.R5 to R7 and Exs.R2 and R3 voters list in which Kamsala is shown as the wife of the Respondent. Ex.R4 Ration Card produced by the Respondent shows Kamsala as his wife and the names of three children are mentioned in the ration card. The three children have been born to him on 23.7.1975, 7.4.1987 and 24.2.1991 as revealed from the birth certificates Ex.R5 to R7.
7. As rightly pointed out by the court below, the first child had been born on 23.7.1975, i.e. 4 years prior to the alleged marriage of the Petitioner with the Respondent. Therefore, even assuming that there was any marriage between the Petitioner and the Respondent or that they lived together as husband and wife, it could have been only after the marriage of the Respondent with Kamsala in which case she cannot claim maintenance as a legally wedded wife of the Respondent.
8. An application under
Section 125 of Code of Criminal Procedure is maintainable, only on proof of existence of the conjugal relationship which is the foundation for having an order for payment of maintenance. The term 'wife' means only the lega lly wedded wife. Though for the purpose of
Section 125 of Code of Criminal Procedure standard of proof of marriage is not as high as in civil court, but when the claim of maintenance has been resisted by the Respondent on the ground that there is a valid subsisting marriage between him and one Kamsala in the absence of proof of marriage of the Petitioner with the Respondent, she is not entitled to maintenance.
9. That apart, the learned Principal Sessions Judge has upheld the finding of the learned Magistrate that the marriage of the 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 after analysing the evidence have found that the Petitioner is not the legally wedded wife of the Respondent and dismissed the claim of maintenance which cannot be interfered with by this court under
Section 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 the question as to whether the wife was the legally wedded wife is one of the preeminent questions of fact and the High Court was not justified in substituting its own view for that of the Magistrate on question of fact.
11. The learned counsel for the Respondent drew the attention of this court to the decision of the Honourable Supreme Court rendered in the case of Shakuntala Devi and others Vs. Chamru Mahto and another [2009-3-SCC-310] that only in special case the bar under
Section 397(3) of Code of Criminal Procedure could be lifted. That is, the power of the High Court to entertain a petition under
Section 482 of Code of Criminal Procedure was not subject to the prohibition under sub section 3 of Section 397 of Code of Criminal Procedure and was capable of being invoked only in appropriate cases.
12. In another decision rendered by the Honourable Supreme Court in connection with the proceedings under
Section 125 of Code of Criminal Procedure in Rajathi Vs. C.Ganesan [1999-6-SCC-326], the claim of maintenance having been allowed, the husband went in revision to the Court of Sessions, which dismissed the revision and confirmed the order of the learned Magistrate. The husband then filed a petition under
Section 482 of Code of Criminal Procedure in the High court, which was allowed by a learned Single Judge, who by his impugned order, set aside the orders passed by the learned Judicial Magistrate and the Sessions Judge and dismissed the wife's claim for maintenance. The said matter when brought to the Honourable Supreme Court by way of Special Leave Petition, the Honourable Supreme Court held that "the High Court had erroneously exercised its powers under
Section 482 of Code of Criminal Procedure which powers were not a substitute for a second revision under sub section 3 of Section 397 of the Code". The Honourable Supreme Court also went on to observe thus:-
"The very fact that the inherent powers conferred on the High Court are vast would mean that these are circumscribed and could be invoked only on certain set of principles."
13. In a three Judges Bench of the Honourable Supreme Court in the case of Krishnan Vs. Krishnaveni [197-4-SCC-241], the Honourable Supreme Court has held that having regard to the provision of
Section 397 (3) of the Code, a "second revision before the High Court after dismissal of the first one by the court of sessions is barred." While holding as above, the Honourable Supreme Court also observed that despite the said bar, the inherent power of the High Court under
Section 482 of Code of Criminal Procedure was still available, but such power had to be exercised sparingly so as to avoid needless multiplicity of proceedings, unnecessary delay in trial and protraction of the proceedings. The present case is not such a special case so as to interfere with the well reasoned orders passed by the court below.
14. In view of the reasons stated above, this Criminal Original Petition is liable to be dismissed and accordingly, it is dismissed.
Srcm To:
1.The Principal Sessions Judge, Chengalput
2.The Public Prosecutor, High Court, Madras