S SETHURATHINAM PILLAI Vs. BARBARA ALIAS DOLLY SETHURATHINAM

JUDGEMENT

(1.) Barbara alias Dolly Sethurathinam and her daughter Mary anne alias Anne Thirumagal filed an application in the court of the Additional I Glass Magistrate, Trichirappalli, against Sethurathinam Pillai under section 488 of the Code of Criminal Procedure for an order directing payment of maintenance to them. They claimed that the first applicant barbara was married to Sethurathinam in 1944" that the second applicant mary Anne was their daughter; that the first applicant had lived with him in Madras till April, 1966, and that thereafter they had shifted to Tiruchy and since then the respondent Sethurathinam had failed and neglected to maintain the applicants. At the date of the application Mary was 20 years of age. Sethurathinam denied that be had married Barbara. He stated that she was his mistress and that he had maintained her for some time and had sent her money, but he had not married her. The learned Trial Magistrate, without deciding whether in fact a marriage had taken place, held that since the daughter Mary Anne had been baptised as a Christian and had lived as a Christian the story of Barbara that she was converted to Hinduism before she married Sethurathinam could not be accepted. He held that the marriage set up by the first applicant Barbara was not proved, and from the fact that Sethurathinam and Barbara bad lived together for some years an inference of marriage could not be raised. The learned Trial Magistrate further held that Mary Anne was not a "child" and was not entitled to maintenance.

(2.) The High court of Madras set aside the order passed by the learned trial Magistrate rejecting the application and awarded to Barbara maintenance at the rate of Rs. 200. 00 per month, and rejected the application formaintenance of Mary Anne. In the view of the High court Sethurathinam had married Barbara in 1944 according to Hindu rites and ceremonies after barbara had converted herself to Hinduism. The High court also opined that even if it be held that Barbara was not converted to Hinduism before marriage, her marriage with Sethurathinam was valid. Against the order made by the High court, this appeal has been preferred with special leave.

(3.) We do not think it necessary in this case to decide the case on the merits. The order passed in an application filed under S. 488 of the code of Criminal Procedure is a summary order which does not finally determine the rights and obligations of the parties thereto. It is an order made in a proceeding under a provision enacted with a view to provide a summary remedy for providing maintenance, and for preventing vagrancy. The decision of the Criminal court that there was a marriage between barbara and Sethurathinam and that it was a valid marriage will not operate as decisive in any civil proceeding between the parties for determining those questions. We are informed at the Bar that Sethurathinam has lodged a suit in the Civil court for decision on the factum and validity of the marriage. Since the order of the Criminal court is a summary order and is not conclusive between the parties, we do not think it necessary to decide whether on the evidence the High court was justified in reaching the conclusion it has reached. It cannot be denied that there was some evidence on which the conclusion could be reached.