Vijayarani and Pushpam (Minor) v. Manoharan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933** ## **RPFC.No. 80 of 2004 ( )** **----------------------M.C.NO.70/96 OF FAMILY COURT, THIRUVANANTHAPRAM** **-------------------------------** ## **REVISION PETITIONERS/PETITIONERS.:** **--------------------------------------------------------** **1. VIJAYARANI, D/O.RAJAMMA,** - **POOVANVILA VEEDU, AYIRAYIL DESOM, KARODE VILLAGE.** **2. PUSHPAM (MINOR), D/O VIJAYARANI,** - **POOVANVILA VEEDU, AYIRAYIL DESOM, KARODE VILLAGE.** **BY ADVS.SRI.R.T.PRADEEP SRI.VIJULAL** ## **RESPONDENT(S)/RESPONDENT.** **---------------------------------------------------** **MANOHARAN, S/O.MANI, CHEKKANIVILA VEEDU, PARAMBUTHOTTAM, AYIRIYIL DESOM, KARODE VILLAGE.** **BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12/01/2012, THE COURT ON 01/02/2012 PASSED THE FOLLOWING:** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P.(F.C.) No. 80 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of February, 2012. ## **ORDER** Aggrieved by the dismissal of the maintenance petition by the Family Court, Thiruvananthapuram, the petitioners before the court below in M.C. No.70 of 1996 have come up in revision. 2. The petition was one for maintenance under Section 125 of the Criminal Procedure Code. 3. According to the first petitioner, she got married to the respondent as per the custom prevailing in the Hindu community at her residence on 18.8.1994. Thereafter they lived together as husband and wife. She conceived and delivered a child on 14.5.1995 at Government Hospital, Parassala. Claim is made of certain gold ornaments and cash received at the time of marriage, which is not relevant for the present purpose. It is alleged that on 3.7.1995 the respondent deserted the petitioners R.P.(F.C.)80/04. 2 and thereafter the first petitioner was living with her parents. Since then the respondent has not provided for any maintenance either to the first petitioner or to the child, the second petitioner. It is pointed out that he is conducting a tutorial college under the name and style 'Holy Cross'. He has let out a building on rent. By taking tuition, he gets a monthly income of Rs.2,000/-. He had also income from the landed properties. The first petitioner has no means of income and they have to depend on the respondent for their livelihood. Pointing out these facts, the petitioners have filed a petition for maintenance claiming Rs.400/- per month as maintenance to the first petitioner and Rs.350/- per month to the second petitioner. 4. The respondent resisted the petition. It is pointed out that the parties belonged to Nadar Christian Community. First petitioner belongs to Latin Catholic faction and the respondent belongs to C.S.I. faction. The respondent denied any relationship with the first petitioner and disputed the marriage as claimed by the first R.P.(F.C.)80/04. 3 petitioner. It was contended on behalf of him that the marriage conducted as per the Hindu rites and ceremonies is not valid. The first petitioner has never been the wife of the respondent and the second petitioner was not born to him. On 18.8.1994 the respondent was not in station. It was disputed by him that the first petitioner and he had ever lived together as husband and wife. He did not feel shy to accuse the first petitioner of leading an immoral life and her unwholly relationship with a person by name John. It is stated that later John married another lady and the petition is filed only to harass him. 5. Before the trial court issues were raised and evidence was adduced. The evidence consists of the testimony of P.Ws.1 and 2 and Ext.A1 marked from the side of the petitioners. The respondent had C.P.Ws. 1 and 2 examined. On an appreciation of the evidence in the case the court below came to the conclusion that no valid marriage has been proved between the first petitioner and the respondent. It was also found that the paternity of the R.P.(F.C.)80/04. 4 second petitioner had not been established and therefore the petition was dismissed. 6. The question that arises for consideration is whether the court below was justified in coming to the conclusion that there was no proof of marriage and there was no evidence of paternity of the second petitioner. 7. Learned counsel appearing for the revision petitioner contended that the court below has not made itself aware of the legal requirements. It being a summary enqiry, if it is shown that there is some form of marriage, then necessarily consequences will have to follow. A complete and comprehensive enquiry into the validity of the marriage and ceremonies of the marriage are not contemplated under Section 125 of the Cr.P.C. For the purpose of Section 125 Cr.P.C. it is sufficient if the parties had gone through any form of marriage which by itself give them the status of husband and wife and subsequent cohabitation are sufficient under Section 125. The reasons given by the lower court to negative the marriage between 5 R.P.(F.C.)80/04. the first petitioner and the respondent and to hold that the first petitioner is not the wife of the respondent are not sustainable. The specific averment of the first petitioner is that she, by an open declaration, had converted as a Hindu and the marriage ceremony was conducted as per Hindu rites at her residence. Evidence to that effect was given by P.W.2. There was no reason to reject the evidence of P.W.2. In support of his contention that open declaration is sufficient to become a Hindu, learned counsel relied on the decision reported in **Kunhiraman Nair v. Annakutty** (1967 K..L.T. 24). For the proposition that the marriage between a Hindu and Christian is sufficient to attract Section 125 Cr.P.C., learned counsel relied on the decision reported in **Sreedharan v. Pushpa Bai** (1978 K.L.T. 26). It was pointed out by the learned counsel that the reasons given to discard the evidence of P.W.2 are not acceptable in law. The observation of the lower court that if as a matter of fact there was a marriage between the first petitioner and the respondent, relatives of the first petitioner would R.P.(F.C.)80/04. 6 have taken part in the same and non-examination of any of the relatives is fatal is not correct because if he examined a relative, he will be termed as interested witness, therefore the first petitioner has chosen to examine an independent witness whose evidence would be credible than a relative's evidence. It is therefore contended that the reason given to hold that there was no valid marriage is unsustainable in law. 8. As regards the paternity of the second petitioner, learned counsel pointed out that it is unfortunate that the court below did not address itself to the question in the proper perspective and has been carried away by irrelevant considerations. The birth register extract, namely, Ext.A1 has been produced which shows the name of the father as the name of the respondent and therefore it has considerable weight because it has come into existence much before the dispute. For the said proposition, learned counsel relied on the decision reported in **Muhammed v. Sulekha** (1981 K.L.T. SN 20). Learned counsel drew the R.P.(F.C.)80/04. 7 attention of this court to the fact that the first petitioner had filed a petition calling upon the respondent to undergo DNA test so as to prove paternity of the second petitioner, the respondent has refused to undergo the test. The court below has relied on the decision reported in **Goutam Kundu v. State of West Bengal** (AIR 1993 SC 2295) and **Sindhu v. State of Kerala** (1999(2) K.L.T. 755) for the proposition that no one can be compelled to undergo blood test and even if that person has refused to do so, no adverse inference can be drawn against him. Learned counsel contended that on going through the two decisions in the context of this case, it would reveal that the principles laid down in the said decisions can have no application. The extract of the birth register is produced and when the respondent refused to undergo DNA test, necessarily an adverse inference ought to have been drawn and it should have been held that the respondent is the father of the second petitioner. Learned counsel therefore pointed out that the reasons given by the court for not R.P.(F.C.)80/04. 8 granting maintenance to the petitioners cannot be sustained. 9. Even though the respondent has entered appearance, when the case was called there was no one to represent him. 10. One must remember here that the proceedings is one under Section 125 Cr.P.C. The object of the petition is to be noted first. The section is designed to prevent Vagrancy and destitution and provides a summary and speedy remedy. It has a social purpose to fulfil and it is well settled that in an application under Section 125 Cr.P.C., the court must look at the substance rather than the form. It is also well settled that it is a summary proceedings, the standard of proof required is very thin unlike proof in the case of bigamy, divorce etc. It has always been noticed that the court must make a realistic approach to the issues that arise and as far as possible uphold the marriage and paternity of the child. R.P.(F.C.)80/04. 9 11. The section gives effect to the obligation of a husband to maintain his wife, child or parents left helpless and is rendered homeless without means for maintaining themselves. The intention of the legislature is to provide cheap and speedy remedy, but it is a limited relief. All that is required is some amount of proof and not absolute proof. It is also well settled that proceedings under Section 125 does not determine the rights and status of the parties. The provision is intended to provide sustenance to deserted wives and children, so that they may not become a menace to the society. 12. It is true that when the marriage is denied, the burden is on the person who claims that there is a valid marriage. But as already stated, proof of marriage need not be so strong or conclusive as in the case of bigamy, divorce etc. Only a prima facie proof and not strict proof is called for in these proceedings. If it is shown that the parties were living together as husband and wife, the marriage will be presumed. Even the conduct of the persons may be R.P.(F.C.)80/04. 10 sufficient. It will be useful at this point of time to refer to the decision reported in **Sajitha v. State of Kerala** (2003 (2) K.L.T. 762), wherein it was held as follows: “Proceedings under S.125 Cr.P.C. are of a summary nature and are intended to enable destitute wives and children, the latter whether legitimate or illegitimate to get maintenance in a speedy manner. The order passed under S.125 Cr.P.C. is a summary order which does not finally determine the rights and obligations of the parties thereto. The decision of the criminal court in a criminal proceedings will not operate as decisive in any civil proceedings between the parties regarding the paternity of the child.” 13. In the decision reported in **Pyla Mutyalamma v. Pyla Suri Demudu** (2011(3) K.L.T. 815), it was held as follows: “The nature of the proof of marriage required for a proceeding under S.125, Cr.P.C. need not be so strong or conclusive as in a criminal, proceeding for an offence under S.494 I.P.C. since, the jurisdiction of the Magistrate R.P.(F.C.)80/04. 11 under S.125 Cr.P.C. being preventive in nature, the Magistrate cannot usurp the jurisdiction in matrimonial dispute possessed by the civil court. The object of the section being to afford a swift remedy, an the determination by the Magistrate as to the status of the parties being subject to a final determination of the civil court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under S.125 Cr.P.C., is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were borne out of the union. If the evidence led in a proceeding under S.125 Cr.P.C. raises a presumption that the applicant was the wife of the respondent, it would be sufficient for the Magistrate to pass an order granting maintenance under the proceeding. But if the husband wishes to impeach the validity of the marriage, he will have to bring a declaratory suit in the civil court where the whole questions may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practices upon him.” R.P.(F.C.)80/04. 12 14. In the decision reported in **Sreedharan v. Pushpa Bai** (1978 K.L.T. 26) relied on by the learned counsel for the revision petitioner, it was held as follows: “It is now settled law that the standard of proof required for a marriage in proceedings for maintenance under the Code of Criminal Procedure is not so high as is required in connection with proceedings under the Indian Divorce Act or in a prosecution for bigamy under the Indian Penal code. There is no controversy between the parties regarding the customary forms of marriage prevalent among the Nadar community. The finding is that ceremony of the kind had taken place between the petitioner and the respondent. The dispute is only in respect of the claim of the respondent that she is the legally wedded wife of the petitioner. It may be that the Hindu Marriage Act, 1955 does not contemplate a marriage between a Hindu male and a Christian female. At the same time, the Indian Christian Marriage Act (XV of 872) permits marriage between Christians and non-Christians solemnized in accordance with the provisions of that Act. Therefore, the fact that the petitioner R.P.(F.C.)80/04. 13 and the respondent follow different religions need not necessarily mean that there could be no marriage between them and the respondent will not get the status of a wife even after undergoing the ceremony of marriage. It is the common case of the parties that a marriage udampady has been executed, that the petitioner and the respondent were living as husband and wife and that a child was born to them. It was on the basis of the above facts, which are either admitted or proved that the petitioner was directed to pay maintenance to the respondent under S.125 of the Code of Criminal Procedure. 1973. The order is neither irregular nor improper as to require interference in proceedings under the inherent powers.” 15. Having thus understood the principles and the nature of proof that is required to establish marriage for the purpose of Section 125, it becomes necessary to see whether the requirements were satisfied in the case on hand. 16. P.W.1, the first petitioner, has given evidence regarding the marriage. She has stated that on 18.8.1994 R.P.(F.C.)80/04. 14 the marriage was conducted in her house according to Hindu rites. She is a Latin Christian and her husband is a CSI Christian. The court below has refused to accept the marriage on the ground that a Hindu could not marry a Christian and also that the evidence of P.W.1 is not sufficient to warrant a conclusion that there has been a valid marriage. 17. P.W.1 has asserted in her evidence that the marriage was conducted on 18.8.1994 and since then they have been residing together as husband and wife. 18. P.W.2, who claims to have participated in the marriage, speaks about the details of the marriage. The court below came to the conclusion on appreciation of the evidence of P.W.2 that the marriage as is prevailing in the Christian community has not been solemnized and his evidence was to the effect that there was a marriage as per the Hindu rites and ceremonies. 19. Learned counsel for the revision petitioner contended that Nadar community has got peculiar customs R.P.(F.C.)80/04. 15 and practices and instances are not rare where a Hindu marries a Christian according to the rites of the said community. According to him, the court ought to have been alerted that this practice is not in the community and should not be accepted unless the marriage as per the rites of the Christian community is proved. 20. It is not necessary to go into the question as to whether there is any custom, usage or practice prevailing in the Nadar community as contended by the learned counsel and it will be sufficient to ascertain that there has been a form of marriage as per Section 125. 21. The trial court does not find that as claimed by P.Ws.1 and 2 that there was a marriage as per the Hindu rites and ceremonies as is prevailing in the Hindu community has not taken place. The reason given by the court below to disbelieve the marriage was that none of the relatives of P.W.1 were examined may not be quite correct. If as rightly pointed out by the learned counsel, if any one of relatives was examined, obviously the accusation R.P.(F.C.)80/04. 16 would be that he is an interested witness and some independent witness could have been examined. There is nothing to show that P.W.2 is in any way interested in the affairs of P.W.1 or he has a motive to speak against the respondent. At any rate, his evidence is sufficient to show that there was some form of marriage undertaken by the parties in the house of the first petitioner. 22. The court below has to necessarily determine whether that is sufficient material to come to a conclusion that there is some form of marriage between the first petitioner and the respondent and whether they lived together as husband and wife. Reliance was placed on the evidence of C.P.W.2 to negative the marriage does not appear to be correct. At any rate, the issue needs a fresh consideration at the hands of the trial court. As already noticed, there are some materials to show that there has been some form of marriage between the first petitioner and the respondent. There is the evidence of P.Ws.1 and 2 to show that the first petitioner and respondent lived as R.P.(F.C.)80/04. 17 husband and wife. Whether that is sufficient or not is a matter to be determined by the trial court afresh. 23. Equally without basis is the finding that there is no proof of paternity of the second petitioner. It is significant to notice that the petitioners had produced Ext.A1 document, which is the extract of the birth certificate relating to the second petitioner. That is an official document. It shows that the child was born on 14.5.1995 and the name of the father is shown as that of the respondent and mother, that of the first petitioner. As observed in the decision reported in **Muhammed v. Sulekha** (1981 K.L.T. SN 11, Case No.20) it was held as follows: “... If, the entry was made several years before the filing of the petition and if it is not shown that the informant had any oblique motive to give such information, the entry may have more evidentiary value. As to what exactly is the evidentiary value to be attached to the entry in a given case would ultimately depend on the facts and circumstances of each case.” R.P.(F.C.)80/04. 18 24. The reasons given by the court below to brush aside Ext.A1 does not appear to be correct. The court below felt that since there is no evidence as to who had given information with reference to the entries made in Ext.A1, reliance cannot be placed on Ext.A1 to come to the conclusion that the respondent is the father of the second petitioner to say the least cannot be accepted. Equally unsustainable is the finding that there is no proof to show that the first petitioner had lived with the respondent as husband and wife during the relevant time. It is shocking to note that the lower court observed that the first petitioner has not produced any evidence to show that she conceived through the respondent. 25. Here one cannot lose sight of the fact that the first petitioner has filed a petition for DNA test, which was not acceptable to the respondent. The court below relied on two decisions namely, **Goutam Kundu v. State of West Bengal** (AIR1993 SC 2295) and **Sindhu v. State of Kerala** (1999(2) KLT 755) to hold that no one can be compelled to R.P.(F.C.)80/04. 19 have blood test and refusal to do so cannot result in an adverse inference to be drawn. It is useful to refer to the decision reported in **Goutam Kundu's case** (supra) In that case, the proceedings were one for maintenance under Section 125 of the Cr.P.C. and the issue involved was paternity of the child. But what is significant is that the facts of the case show that the marriage was accepted and therefore the child having born during the subsistence of the marriage and applying the presumption under Section 112 of the Evidence Act, it was held that due to the refusal to undergo blood test cannot have any significance. In the said case, after referring to the decision reported in **Vasu v. Santha** (1975 KLT 533), it was observed as follows: “.... The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party asserting the claim to have a child and the R.P.(F.C.)80/04. 20 rival set of parents put to blood test must establish his right so to do. The court exercises protective jurisdiction on behalf of an infant. In my considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity; the aim is to ensure that he gets his rights. If in a case the court has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in not acceding to such a prayer.” 26. In the decision reported in **Sindhu v. State of Kerala** (1999(2) KLT 755), it was held as follows: “In Goutam Kundu v. State of West Bengal ((1993) 3 SCC 418) the Supreme Court has categorically held that no person shall be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for this refusal. Though the circumstances obtained in that case were different, the law laid down is applicable to this case also. So, it is not possible to compel the R.P.(F.C.)80/04. 21 petitioner to produce the child for taking blood sample for the DNA test and no adverse inference is also possible on account of such refusal. However, the Magistrate can take note of the fact that 2[nd] respondent /complainant has offered undergo the test at his own expenses.” 27. It needs to be noticed that in both the above cases, the marriage was admitted and it is seen from the facts of the case that the child was born during the subsistence of the marriage. Then going by Section 112 paternity of the child is conclusive except when non-access is proved. It is in the above context that the two decisions were rendered. The issue was considered in the decision reported in **Selvaraj v. Jayakumary** (2000(3) K.L.T. 519), wherein it was held as follows: “In the instant case, it cannot be denied that there was definitely some strong evidence regarding the ceremony of marriage. That apart, the defiant stand of the appellant in refusing to undergo DNA test would also lead to a strong prima facie satisfaction as to the existence of marriage between the appellant and the 1[st] 22 R.P.(F.C.)80/04. respondent, and the paternity of the 2[nd] respondent. Thus, on the facts and the law as stated above as also the evidence available, we hold that the Family Court was perfectly justified in entering strong prima facie satisfaction as to the existence of marriage between the appellant and the 1[st] respondent. It is not necessary to have conclusive evidence of marriage under S.125 Cr.P.C. to award maintenance to a destituted wife from her husband. In a proceeding under S.125 Cr.P.C. the standard of proof for a marriage is not so high as required in other proceedings.” 28. In the decision reported in **Sharda v. Dharmpal** (2003(2) KLT 243). it was observed as follows: “Goutam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.” R.P.(F.C.)80/04. 23 29. In the decision reported in **Sathya Raj v. Jayaprakash** (2008(3) KLT 163) it was held as follows: “The primary duty of a court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Art.20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Code of Civil Procedure and the Evidence act, has an inherent power in terms of S.151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit. Discretionary power under S.151 of the Code of Civil Procedure, it is trite, can be exercised also on an application filed by the party. In certain cases, medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms.” 30. From a reading of the above decisions, it can be seen that the principle relied on by the lower appellate court in order to refuse to accept the 24 R.P.(F.C.)80/04. paternity of the second petitioner are not correct. There was no justification for discarding Ext.A1 and the insistence of the lower court for a proper picture of proof was quite unwarranted. 31. It therefore follows that the findings of the court below are rather strange and the issues need a fresh consideration at the hands of the lower court in the light of the evidence adduced by the parties and what has been noticed above. 32. However, there is some evidence to show that there was some form of marriage undergone by the parties and there is some evidence to show that the respondent is the father of the second petitioner. Anyhow, this is a matter to be determined afresh by the lower court in the light of what has been stated above. However, in the meanwhile it is only just and reasonable to order interim maintenance to the petitioners in order to avoid destitution. It is therefore felt that the respondent should pay a sum of Rs.200/- as interim maintenance to the first 25 R.P.(F.C.)80/04. petitioner from the date of petition and Rs.250/- as interim maintenance to the second petitioner from the date of petition till final orders are passed in the proceedings by the trial court. The arrears of interim maintenance shall be deposited within a period of three months or within the extended period as may be deemed fit by the trial court. The parties shall appear before the trial court on 13.2.2012. The Family Court may make every endeavour to dispose of the matter as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this order. Parties will be at liberty to adduce further evidence in the case, if they so choose. ## **P. BHAVADASAN, JUDGE** sb.