EMATHEWS APPU Vs. ANLET DANLEY

JUDGEMENT

(1.) This revision petition arises out of an application made by the first respondent against the petitioner under S.488 Cr. P. C. alleging that the petitioner had married her, that the second respondent was horn to him and claiming maintenance. The first respondent as Pw. 1 has sworn that even though she was originally married to one Muthunayakom that marriage had been dissolved in 1952 and in 1954 the petitioner married her. The contention of the petitioner was that the first respondent was the legally wedded wife of Muthunayakam, that the marriage is till subsisting, that there was no legal divorce and therefore S.112 of the Evidence Act would apply. He also denied the marriage and the paternity of the child. As there could be no legal divorce and her marriage with the petitioner cannot be considered as a legal marriage the first respondent withdrew her claim for maintenance. The learned Magistrate on a consideration of the evidence adduced found that the petitioner was the father of the child and awarded maintenance at the rate of Rs. 15/- to the second respondent child. Aggrieved with the order this revision petition has been filed.

(2.) The main argument urged on behalf of the petitioner is that the court below has not correctly understood the scope of S.112 of the Evidence Act and on a correct application of the section the order cannot be supported. S.112 is in the following terms:

(3.) In the decision in Krishnappa v. Venkatappa ( AIR 1943 Mad. 632 ) Chandrasekhara Ayyar, J., following the Privy Council decision stated: