VANAJAKSHAMMA Vs. P GOPALAKRISHNA

JUDGEMENT

(1.) This petition arises out of proceedings taken under S.488 Cr.P.C. The 1st petitioner before this Court claims to be the wife of the respondent and the petitioners 2 and 3 are said to be her minor children born to the respondent. The 1st petitioner claimed a total sum of Rs.150 per month towards maintenance of herself and her 3 minor children. After the enquiry the learned Magistrate dismissed the petition. The petitioners challenge the correctness of the said order passed by the learned Magistrate in this revision petition.

(2.) Sri Riazuddin, learned Counsel appearing on behalf of the petitioners, has contended that the learned Magistrate, after having accepted the evidence let in by the petitioners, was wrong in dismissing the petition. He has pointed out that the learned Magistrate has also rejected the evidence let in on behalf of the respondent, but yet strangely dismissed the petition. The learned Magistrate has also given a finding that it had been established in evidence that petitioner 1 was the kept mistress of the respondent. It has been argued that the standard of proof of marriage under S.488 Cr.P.C. is different from that laid down either in the Divorce Act or in prosecutions under Ss.494, 495 and 498 IPC. The proviso to S.50 of the Evidence Act makes this clear. The learned Counsel has strongly relied on David v. Nilamoni, AIR. 1953 Orissa 10. and Bebi Bai v. Japomony, 1957 Mad.L.J. Cr. 311. in support of his said contention. It is also contended that as the 1st petitioner was a widow, no specific ceremonies need be performed for a valid Hindu Marriage. The learned Counsel has relied on All India Reporter 1950 Madras 777. in support of his contention that a Hindu Marriage need not take place in the presence of a priest, and the tying of a 'Tali' in the presence of an idol is also one of the forms of a marriage known to Hindu Law. It is argued that the evidence given by petitioner 1 and her witnesses clearly makes out a case that the petitioner 1 was the wife of the respondent and petitioners 2 and 3 are his children born to him after his marriage with petitioner 1.

(3.) The learned Magistrate believed the evidence of P.Ws.1 and 2 examined on behalf of the petitioners. He has stated that P.Ws.1 and 2 appear to be disinterested and independent witnesses. Further, there was absolutely nothing on record to suggest that they are either interested in the petitioners or that they had any ill-will against the respondent. He has stated that he had carefully examined the evidence of these witnesses and he was satisfied that their evidence is convincing and they have spoken the truth. The learned Magistrate has also dis-believed the evidence of the witnesses exam ned on behalf of the respondent. He has held that they are all inteested witnesses and persons working for the respondent. After reviewing tne evidence, he has accepted the evidence that petitioner 1 and the respondent were living together as husband and wife for a long time, and he finds that petitioner 1 was the kept mistress of the respondent. But strangely enough, after giving such a finding, he has entirely dismissed, the petition filed on behalf of the children for maintenance. With regard to the question whether petitioner 1 is the wife of the respondent, he states as follows: