SUBRAMANIAN Vs. SELVI ALIAS JEBAMALAI

JUDGEMENT

(1.) THIS revision is directed under Secs. 397 and 401 of the code of Criminal Procedure by the alleged husband by name Subramaniam against the finding and order passed by the learned First Additional Sessions Judge, coimbatore Division, in Crl. R. C. No. 126 of 1986 on 8. 12. 1987 awarding a sum of rs. 100 each, payable by himself, as maintenance to the respondents herein, who are his alleged wife and son, and Rs. 1,000 per annum towards clothing and medical expenses. The learned First Additional Sessions Judge while hearing the above revision, reappraised the entire evidence recorded by the learned judicial First Class Magistrate, Coimbatore , in M. C. No. 12 of 1985 rejecting the claim of maintenance made by the respon-dent herein as contemplated under Sec. 125 of the Code of Criminal Procedure.

(2.) THE case of the respondents as culled out from the evidence recorded before the learned Judicial First Class Magistrate as well as the petition in extract is as under: As per the Hindu Religious custom and the caste custom in the Karupparayan temple situated near Thondamuthur in Coimbatore District, the marriage of the first respondent with the revision petitioner was performed on 16. 2. 1982, THEreafter, both of them were happily living as husband and wife and as a result of the said wedlock on 3. 4. 19837 the second respondent, who is a minor, was born to them which was followed by the ill-treatment caused to both the respondents by the revision petitioner herein by insisting to get the money from the first respondent's parents. As the parents of 1st respondent were poor and were not able to cope with any money or means, the first respondent was not able to comply with the wishes of the revision petitioner, and subsequently it is the case of the first respondent that both of them were driven away and from then onwards, the respondents and the petitioner were living separately. During December, 1984, the first respondent came to know that the petitioner, being employed as a Warden in the Central Prison, coimbatore, was getting a salary of Rs. 750 per month, that besides he has contracted a second, marriage and that therefore a sum of Rs. 200 per month towards the maintenance of each of the respondents and a sum of Rs. 2,000 per annum towards the cost of medical and cloth expenses, are required by the respondents to be payable by the revision petitioner.

(3.) AGAINST the finding and order of the learned additional Sessions Judge granting the maintenance to the respondents herein as above, the present revision is filed. The learned counsel appearing for the revision petitioner Mr. Arunachalam confined his arguments mainly with regard to the marriage. He contended that though the learned trial Magistrate has found that there was no valid marriage between the revision petitioner and the first respondent which has been proved or established, the lower appellate court misconstrued the recorded evidence of the parties herein on the ground that there was a valid marriage, in view of the joint living by the first respondent and the revision petitioner herein, and to this extent the order passed by the lower appellate authority is vulnearable for rejection Consequently, the learned counsel contended that at no point of time the petitioner and the first respondent were living as husband and wife, and that even so the claim projected by the first respondent that the second respondent was born out of the wedlock cannot be accepted and that therefore the quantum of maintenance ordered by the lower appellate Court is not at all sustainable. The learned counsel also contended that the reliance placed by the lower appellate Court upon ex. P-1, the xerox copy of the complaint allegedly given by the revision petitioner and the first respondent to the -Sub-Inspector of Police cannot be relied on, for want of proof, and to that extent Ex. P-1 cannot be treated as secondary evidence in view of the specific provisions under Secs. 60,61 and 62 of Indian Evidence Act. He further contended that the original of Ex. P-1 could have been made available and the Sub Inspector of Police could have been summoned and without doing so Ex. P-1 cannot be relied on.