Entitlement of petitioner and her second child for maintenance.

Kasthuri, B.Sc. B.Ed., the first revision petitioner (hereinafter referred to as the petitioner) married Ramasamy B.Sc. B.Ed. the respondent, on 14-7-1971, at Rettaiyoorani in accordance with the custom of their caste. A child Suresh was born to them on 3-7-1972. The respondent wanted to marry one Vallinayagi of Ponnagaram, who is also a B.Sc. and B.Ed. The petitioner did not agree, and therefore, he turned the petitioner and her child Suresh out of his house in or about 1973. At the intervention of some mediators, she was again taken in the month of August 1973. The respondent again requested the petitioner to give him her consent for a second marriage which request the revision petitioner again turned down, and again the respondent sent her away to the house of the mother of the petitioner in or about November 1973. At that time she was pregnant and she was delivered of a female child on 9-2-1974. The petitioner was not taken back by the respondent, and she is leading a hard life and is unable to maintain herself, and, therefore, the petitioner and her two minor children filed an application for maintenance.

2. The application was resisted by the respondent, who inter alia contended that the allegation that he wanted to marry for the second time is not correct, that the petitioner, his wife, is living in adultery with one Varadarajan, son of Muthuraman of Kadukaivalasai, that there was a panchayat consisting of Nadar Uravanimurai of the village, on 30-9-1974, which decide to dissolve the marriage, and therefore a divorced wife cannot ask for any maintenance, that the petitioner is still in adultery with Varadarajan and that the second child should have been born to the petitioner out of her adulterous life with Varadarajan.The learned Sub Divisional Judicial Magistrate found -

"that the first revision petitioner is living in adultery with one Varadarajan and therefore the first petitioner and also the third petitioner who is said to have been born through the said Varadarajan are not entitled to claim any maintenance" *

In the end, he dismissed the petition. The revision petitioners are aggrieved, and have filed this revision.

3. Before me, the learned counsel for the revision petitioners contend that the trial Magistrate has overlooked the important presumption under S. 112 of the Indian Evidence Act, and approached the case without clearly understanding the principles of criminal law and that has resulted in gross miscarriage of justice, and, therefore, this court as a court of revision, should interfere. The further contention of the learned counsel was that the respondent has not proved that the petitioner is living in adultery. It is necessary to examine these contentions in the light of many decisions on this point.

4. Before we examine these contentions, we should advert to the facts which are not in controversy and which are admitted. The petitioner married the respondent on 14-7-1971, at Rettaiyoorani. The first child was born to them on 3-7-1972. The marriage of the petitioner with the respondent is not disputed and in fact is admitted by the respondent, R.W. 7. The paternity of the first child is also not disputed. The petitioner's case is that she was turned out of the house of the respondent in or about July 1973, that on the intervention of others, she went to Kadukaivalasai in August 1973 and lived with the respondent, that as the respondent again wanted her consent for the second marriage and as she did not accede to this request, she was sent away in November 1973, and at that time she was having a baby of seven months in her womb. The respondent's case on the other hand is that the allegation that the petitioner was sent away in July to her house and that she came back again in August 1973 is false and that the allegation that she was sent again in November 1973 is also false. In his counter-statement, I do not find when exactly the petitioner went to her father's house. But, in his evidence, R.W.