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2009 Supreme(Mad) 1750
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Salomon
Versus
Elizabeth & Another
Crl.R.C.No.819 of 2006 & M.P.No.1 of 2006
Decided on: 16-06-2009
For the Petitioner:J. Juliet Pushpa, Advocate.
For the Respondents:N. Subbarayalu, Advocate.
Headnote:A. CRIMINAL PROCEDURE CODE, SECTION 125 - Maintenance - Right of Christian woman who lived with his lover - Petitioner and respondent claimed to be in love and petitioner allegedly gave birth to a child - Petitioner claiming maintenance for herself and his child - Magistrate ordered maintenance - HELD, Petitioner and respondent allegedly married in presence of Panchayatdars - No whisper as to what form of marriage they underwent before Panchayatars - Petitioner and respondent seem to be Christians - An Indian Christian cannot marry on par with Suyamariyathai marriage as contemplated under Section 7A of the Hindu Marriage Act - Necessarily Indian Christian should undergo marriage only under the Indian Christian Marriage Act - As per evidence there is nothing to indicate that legal marriage took place between them - Order awarding maintenance by Magistrate set aside - On adequate evidence to prove that petitioner and respondent lived together and they gave birth to the child, HELD, child is entitled to maintenance - Order of magistrate awarding maintenance of Rs. 450 per month to the child, confirmed.
B. MAINTENANCE LAW - Right of Christian woman who lived with his lover - Petitioner and respondent claimed to be in love and petitioner allegedly gave birth a child - Petitioner claiming maintenance for herself and his child - Magistrate ordered maintenance - HELD, a Christian woman lived together with his lover and gave birth to a child though she claimed to be married his lover in the presence of Panchyatars, in the absence of any evidence to prove that legitimate marriage took place in the Indian Christian Marriage Act, she is not entitled to claim maintenance from the man with whom she lived together.
Result: Crl.R.C. allowed in part.
1. Animadverting upon the order dated 06.04.2006, passed by the learned Judicial Magistrate, Arakkonam in M.C.No.3 of 1999, this Criminal Revision case is focussed.
2. A resume of facts which are absolutely necessary and germane for the disposal of this revision would run thus:
The respondents herein filed M.C.No.3 of 1999 under Section 125 of Cr.P.C. claiming maintenance as against Salomon, the revision petitioner herein on the ground that the first respondent herein, namely Elizabeth and Salomon had love affair with each other and in that process Elizabeth became pregnant due to the revision petitioners access with her. As such, even while she was pregnant, by the intervention of the elders, they underwent shot gun marriage and thereafter, the minor child R2 herein, Napoleon was born. Inasmuch as the revision petitioner herein started estranging the respondents herein, whereupon, they were constrained to file the said M.C. claiming maintenance.
3. During enquiry, on the side of the respondents herein, P.Ws.1 to 3 were examined and no document was marked. On the side of the revision petitioner herein, no oral or documentary evidence was adduced.
4. Ultimately the Magistrate Court awarded maintenance, as against which revision was filed before the Sessions Judge and the matter was remanded back to the Magistrate Court. Thereafter, the Magistrate passed an order awarding maintenance. Being aggrieved by the order by the Magistrate Court, this present revision has been filed on various grounds, the pith and marrow, the nitty gritty of them would run thus:
Due opportunity to cross examine P.Ws.1 to 3 was not given even after remand order passed by the Sessions Judge. Without any evidence, much less reasonable evidence, the Magistrate went to the extent of holding that there took place marriage between the revision petitioner herein and the first respondent and that R2 is the legitimate child of the revision petitioner. There is nothing to indicate that the minor was born to the petitioner. Accordingly the revision petitioner prayed for setting aside the order of the Magistrate Court in awarding maintenance.
5. Heard both sides.
6. The point for consideration is as to whether the order awarding maintenance by the Magistrate is perverse and one emerged without any evidence on record and that too without giving due opportunity to the revision petitioner to put forth his case by cross examining the witnesses P.Ws.1 to 3.
7. The learned counsel for the revision petitioner would invite the attention of this Court to the deposition of P.Ws.1 to 3 and submit that no cross examination was found recorded; that unless a witness is subjected to cross examination, his evidence cannot be relied on by a Court of law. Whereas, by way of torpedoing and pulverizing the case of the revision petitioner as put forth by the learned counsel for the revision petitioner, the learned counsel for the respondents herein would develop his argument to the effect that absolutely the revision petitioner herein did not take any steps to cross examine P.Ws.1 to 3 even after remand and no application also was filed for recalling those witnesses, on the other hand, the revision petitioner was hellbent to drag on the matter and tried his level best to wriggle out of his liability to pay maintenance.
8. A bare perusal of the records would reveal and display that P.Ws.1 to 3 were not cross examined for which the learned counsel for the revision petitioner would submit that no opportunity was given and in fact, she would also invite my attention to the docket order passed by the Magistrate concerned which is found available at page No.11 of the typed set. A plain reading of it would reveal that on 06.03.2006 the matter was reopened after remand, on 20.03.2006 adjournment was sought on some grounds, where upon, adjournment was given by the Magistrate. Thereafter, on 04.04.2006, the Magistrate recorded to the effect that both sides stated that they had no
