JUDGMENT :

1. This regular second appeal is filed by the defendant in O.S.No.178/2006 challenging the judgment and decree dated 03.06.2008 passed by the Additional Civil Judge (Jr.Dn) Shidlaghatta and the concurrent judgment and decree passed by the Senior Civil Judge & JMFC, Shidlaghatta in R.A.No.48/2008.

2. The facts that are evident from the suit filed are that the plaintiff is the first wife while one Lakshmamma was second wife of the defendant and that the plaintiff has two children from the defendant. Due to differences between the plaintiff and the second wife, the defendant abandoned her and that she was residing at her parents’ house since then. She has stated that the defendant was allotted certain properties on a partition between him and his brothers and the defendant with the help of his children from the second wife had concocted the documents to alienate the suit property. She has stated that though several panchayaths were convened to resolve the differences between the plaintiff and defendant, the defendant failed to accept her. She therefore sought for maintenance of a sum of Rs.1,000/per month from the defendant.

3. The defendant filed his written statement contending that there was no relationship of husband and wife between him and the plaintiff and no children were born to the plaintiff through him. He has further contended that the plaintif on ill advise of some persons who are untoward him has filed false suit against him.

4. In order to prove her relationship with the defendant, the plaintiff was examined as PW1 and her brother was examined as PW2 and they marked Exs.P1 to P4. The defendant though filed his affidavit in lieu of his examinationinchief and marked Exs.D1 and D2 but he did not subject himself to crossexamination. The trial Court therefore, having regard to the evidence of PW.2 which demonstrate the relationship of the plaintiff and defendant and having regard to Ex.P4 which was the voter ID card, held that the plaintiff is the wife of the defendant and awarded maintenance of a paltry sum of Rs.1,000/per month.

5. Aggrieved thereby, the defendant filed appeal in RA No.48/2008 before the first appellate Court. Before the first appellate Court, the defendant attempted to produce additional documents by filing an application under Order XLI Rule 27 of CPC. The documents that were sought to be produced were photos and marriage invitation card of the defendant with Smt. Lakshmamma who was claimed by the plaintiff to be the second wife of the defendant. Since there was no dispute regarding the marriage of Lakshmamma, the first appellate Court did not deem it necessary to allow the application filed under Order XLI Rule 27 of CPC and in view of enormous evidence on record to prove the case of the plaintiff, the first appellate Court felt unnecessary to interfere with the judgment and decree of the trial Court.

6. Feeling aggrieved by the aforesaid judgment and decree of the Courts below, the defendant is in appeal in this regular second appeal.

7. The prime contention of the defendant before this Court is that the trial Court had rendered a finding on issue No.1 namely whether the plaintiff proves that she is the wife of the defendant, in the affirmative without there being any positive evidence to support such a contention. The learned counsel also contended that the plaintiff ought to have examined independent witnesses in proof of relationship of the plaintiff with the defendant and not doing so should necessarily result in recording the finding that the plaintiff had failed to prove her relationship.

8. In matters of proving relationship, opinion of near relatives has mandated under Section 50 of the Indian Evidence Act, 1872 which extracted as under:

50. Opinion on relationship, when relevant.– When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family