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1996 Supreme(Mad) 1136
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM
PASUVARAJ
Versus
SARASWATHI
Crl.revision Case.234 of 1993
Decided On : 08-11-1996
A wife and child who are deaf and dumb by birth are entitled to maintenance from their husband under Section 125 CrPC if the marriage is valid and the husband has neglected to maintain them.
Headnote:
MAINTENANCE - SECTION 125 CRPC - INTERPRETATION - WIFE AND CHILD ENTITLED TO MAINTENANCE - VALID MARRIAGE PROVED - ATTENDANCE REGISTER NOT MARKED - CANNOT BE CONSIDERED AS EVIDENCE.
Fact of the Case:
The wife and child, who were deaf and dumb by birth, filed a petition under Section 125 CrPC claiming maintenance from the husband. The husband denied the marriage and the birth of the child. The Judicial Magistrate, after considering the evidence, held that the marriage was valid and directed the husband to pay maintenance to the wife and child.
Finding of the Court:
The court held that the marriage was valid and the wife and child were entitled to maintenance. The court also held that the attendance register of the deaf and dumb school, which was not marked as evidence, could not be considered as evidence.
Issues: 1. Whether the marriage between the petitioner and the 1st respondent was valid? 2. Whether the 2nd respondent was the legitimate child of the petitioner? 3. Whether the wife and child were entitled to maintenance under Section 125 CrPC?
Ratio Decidendi: 1. The court held that the marriage was valid based on the evidence of witnesses who attended the marriage and the fact that the 2nd respondent was born after one year of the marriage. 2. The court held that the 2nd respondent was the legitimate child of the petitioner based on the evidence of witnesses and the attendance register of the deaf and dumb school. 3. The court held that the wife and child were entitled to maintenance under Section 125 CrPC as the husband had neglected to maintain them.
Final Decision: The court dismissed the revision petition and upheld the order of the Judicial Magistrate directing the husband to pay maintenance to the wife and child.
M. KARPAGAVINAYAGAM, J.
( 1 ) THE unfortunate respondents, the wife and child who claimed maintenance are deaf and dumb by birth.
( 2 ) THE wife Mrs. Saraswathi, filed the petition on her behalf and on behalf of her minor son, claiming maintenance from her husband, the petitioner here in M. C. No 21 of 1990, on the file of Judicial Magistrate, Coonoor. On enquiry, the learned Judicial Magistrate directed the husband the petitioner herein to pay a sum of Rs. 500/ -p. m. , to each of the respondents herein, from the date of application. Being aggrieved over this, the petitioner/husband filed this revision.
( 3 ) ON behalf of the wife six witnesses were examined and on behalf of the husband, two witnesses, including the petitioner were examined. According to the wife, the marriage was performed between the petitioner and the 1st respondent on 26-1-1975. Regarding the factum of marriage, the witnesses who attended the marriage had adduced evidence. After marriage, the 2nd respondent was born out of the wedlock. P. Ws. 2, 3, 4and 5 would speak about the birth of the child, the 2nd respondent herein, after one year subsequent to the said marriage.
( 4 ) THE peculiar feature in this case is that the 1st respondent/wife, who is deaf and dumb by birth was given in marriage with the petitioner, since the parents of the 1st petitioner thought that the petitioner who is closely related would properly take care of the 1st respondent. Unfortunately, one year after the marriage, the 2nd respondent/ child was born who was also deaf and dumb. After some years, the 2nd respondent was admitted in the deaf and dumb school, at Madurai. Since the mother of the petitioner/husband aged about 80 years, was mentally deranged, the 1st respondent/wife was asked to stay in a separate house. Thereafter, the petitioner husband did not take care of her there by he neglected to maintain her. Therefore, the 1st respondent had to leave the house with the child, and, join her mother P. W. 4-Babi Ammal.
( 5 ) R. W 1- Sivananjaiah, examined on behalf of the petitioner /husband would speak that there was no marriage between the petitioner and the 1st respondent. But he would further state in his deposition and this evidence is not in any way helpful to the case of the husband.
( 6 ) THE husband, who was examined as R. W. 2 would simply deny the marriage and the birth of the child, the 2nd respondent herein. The learned Judicial Magistrate, on consideration of the entire materials and relying upon various decisions of this Court as well as the Apex Court, held that the 1st respondent is the legally wedded wife, and she is entitled to maintenance for herself and for the 2nd respondent, the minor child. While coming to such a conclusion, the learned Judicial Magistrate has reproduced the observation of the Apex Court in Bai Tahira v. Ali Hussain Fissalli Chothia and another1 which is as follows: in this appeal, by special leave, we are called upon to interpret a benign provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees, namely. Sec. 125, Cr. P. C. Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Art. 15 (3) of the Constitution must be light the meaning of the section. The Constitution is a pervasive omni-presence brooding over the meaning and transforming the values of every measure. So, Sec. 125 and sister clauses must receive a compassionate expansion of sense that the words used permit In this generous jurisdiction a broader perception and appreciation of the facts and their bearing must govern the verdict not chopping little logic or tinkering With burden of proof.
( 7 ) MR. Gopinath, learned senior counsel for the petitioner would vehemently contend that marriage was not proved, and there is no proof to hold that the 2nd respondent was bor
