SELVAMANI Vs. JAGANNATHAN

JUDGEMENT

(1.) PETITIONERS 1 and 2 respectively claiming to be wife and minor son of respondent, filed M.C.No.94 of 1985 on the file of Judicial First Class Magistrate, Mettur Dam, claiming maintenance under Sec.125, Cr.P.C.

(2.) THE respondent resisted the petition on manifold grounds. THEy are:1. THE first petitioner is not at all his wife, in the sense that he never married her at any point of time. 2. In any event he never lived with her and therefore there is no question of the second petitioner being construed as his minor son who was born out of illegitimate relationship.

(3.) THE second submission of learned counsel for the petitioners revolves on the question of the procedure adopted by the trial Magistrate for adduction of evidence. A perusal of the records would point out that the first petitioner-wife had been allowed to let in evidence. In this case the respondent-husband slyly introduced an averment in his counter that she had been living with one Balakrishnan @ Rajendran and out of such clandestine relationship the second petitioner was born. This allegation would amount to charging the first petitioner-wife as living in adultery, possibly with a view to negative her claim for maintenance in case the court comes to the conclusion that she was the legally wedded wife of the respondent. In such a circumstance, the respondent-husband alone should have been allowed to adduce evidence first in point of time before the first petitioner-wife was given an opportunity to let in any evidence on or behalf. Only if such a procedure is adopted there could have been real opportunity for the first petitioner-wife, against whom an accusation of her living in adultery had been made to rebut such an evidence. In such circumstances, it cannot be stated that the procedure adopted by the trial Magistrate is reflecting the real legal position.