Decided on January 28,1967

JAPAMONY Respondents


- (1.) THE revision petitioners were petitioners 1 and 2 in m. C. 9 of 1965 on the file of the Addl. First Class Magistrate of Trivandrum. THE first petitioner is the mother of the 2nd petitioner who is a minor child aged about 5 years. THE petition in the court below was under S. 488 Crl. P. C. claiming maintenance from the counter-petitioner who is stated to be the husband of the first petitioner and father of the 2nd petitioner.
(2.) THE parties are Christians belonging to the C. S. I. Sabha of South Travancore. THE first petitioner was married by the counter-petitioner at her residence on 81162 under the customary mode of tying the thali and presentation of cloth. THEy were continuing as man and wife ever since; but of late, the counter-petitioner began to neglect the petitioners and hence the petitioners were constrained to resort to the court by the petition under S. 488 of the Code. In the counter filed by the counter-petitioner the alleged marriage was denied by him. He stated that he has never functioned as the first petitioner's husband and that the 2nd petitioner was never born to him; but he admitted in his statement that the first petitioner was once proposed to him for marriage, by her brother. That fell through since they could not agree on the question of dowry. Since this proposal was known to the people of the locality, the paternity of the child was attempted to be foisted on him, and the first petitioner even offered satyagraha in front of his house with the support and connivance of certain persons who are inimical to him. Just to escape from the shame and disgrace consequent on the satyagraha he had to execute a document acknowledging her as his wife; but in fact he had no sort of connection with the woman. The learned Magistrate accepting this plea of the counter-petitioner and disbelieving the petitioner and her witnesses has dismissed the petition. Whether the first petitioner is the wife and the 2nd petitioner the child born to her of the counter-petitioner are the points arising for decision in this case. "for proof of marriage in a proceeding under S. 488 cr. P. C. the standard of proof need not be so high as required either in a proceeding under the Indian Divorce Act or in prosecution under S. 494, 495, 497 or 498 IPC. Thus even opinion expressed by conduct of persons who had special means of knowledge on the subject may suffice to prove the fact of marriage in a proceeding under the section. " (Vide David v. Nilamoni 1953 Cr. Q. 260 ). It is in this legal background that the present case has to be approached. The petitioner's definite case presented before court was that she was married by the counter-petitioner on 81162 at her residence according to the customary rites prevailing in the community. The form of the marriage was simple, i. e. tying of thali around the bride's neck and presentation of sari and blouse by the husband. pws. 3, 4 and 5 are persons who were present at the marriage and they have deposed to all the details in connection therewith. About one year after the marriage i. e. on 161163, a registered udampadi was also executed between the husband and wife in which the first petitioner's status as wife was reiterated and re-assured. Ex. P-1 is that document, the execution of which is admitted by the counter-petitioner. Thus we have both oral and documentary evidence in support of the first petitioner's case that she is the wife of the counter-petitioner and she has been functioning as his lawfully wedded wife ever since. To offset the effect of these items of evidence, the counter-petitioner had absolutely nothing to fall back upon except alleging that the first petitioner had offered satyagraha in front of his house and to extricate himself from the shame resulting therefrom, he was compelled to execute such a document; he has never been her husband and he never had any sexual contact with her at any time. There was, however, a proposal brought to him by her brother for her marriage with him; but that did not materialise due to their difference of opinion on the dowry to be paid. He has also alleged that the first petitioner had been carrying on an intrigue with her sister's husband and the second petitioner was born to her of that clandestine connection. All these have been exploded by the evidence of pws. 3 to, 5, the eye witnesses to the marriage, supplemented by the udampadi Ex. P-1. The learned Magistrate has brushed aside the evidence of these witnesses on flimsy and most unsatisfactory grounds. pw. 3, for instance, is disbelieved on the sole ground that be is a communist. The allegation was denied by him; but the counter-petitioner did not stop with that. He went on to hunt out evidence to show that the witness is in fact a communist party worker. Ex. D-2 was accordingly ushered in to show that in fact he is a communist. Ex. D-2 is an election manifesto issued by the local communist party in connection with the Panchayat election. Signatory No. 23 is V. Appu and his address is shown as "chintarmani Vaidyasala", Poudiconam. pw. 3's full name and address as given in the deposition is 'appu, son of Velu, merchant, parayilvilakathumele Puthenveedu, Poudiconam'. He did not admit that the 'appu' shown in Ex. D-2 is himself. Even granting that signatory No. 23 in Ex D-2 is pw. 3, it has further to be shown that his name was entered in the pamphlet with his knowledge and consent. Whatever that be, we are not at the point whether this man is a communist or an anti-communist. Whether he is a trustworthy witness is the point with which we are concerned. Apart from his so-called party affiliation there is nothing brought out in the cross-examination, to discredit him. The learned Magistrate has disbelieved him on the sole ground that he is a communist party worker. It is too much to discredit the evidence of a person on the ground that he belongs to a particular political party. Moreover, the counter-petitioner has no case that he is an anti-communist and pw. 3 is thus inimical towards him. The next witness pw. 4, has been disbelieved on the ground that he is a manual labourer. In this case the one discrepancy pointed out is that he has stated that the sari and blouse were handed over to pw. 1 by the counter-petitioner himself. pw. 1 on the other hand stated in her evidence that she did not remember who exactly had placed the sari and blouse in her hand. I do not think the witness could be discredited on this flimsy ground. pw. 5 is a retired school master and no discrediting feature has been put forward so far as he is concerned. His evidence, therefore, stands unchallenged.
(3.) THE learned Magistrate has made much of the fact that the date of marriage was not mentioned in the notice issued to the counter-petitioner. In the petition also the exact date is not given but the year alone has been mentioned. It was in her deposition before court that the exact date was put forward for the first time. I do not think the entire evidence can be discredited on the failure to give the date of marriage in the early stages of the enquiry. When the factum of marriage is proved by unassailable evidence the non-mention of the date in the notice or in the petition itself is not of serious consequence. THE oral evidence of pws. 3 to 5, which I see no reason to discard, stands supplemented by Ex. P-1 the registered udampadi. THE relevant portion of the udampadi runs: Pw. 2 who is a church mission worker is an attestor to this document. A part from proving the document he has also given other important evidence in connection with the practice obtaining in the community. THE counter-petitioner has a case that unless the marriage takes place in the church it will not be recognised as a valid marriage by the community; but this witness as the church mission worker would tell us that there is nothing wrong in the marriage taking place at the residence; but in such cases ratification will have to be got of the church and (hat could be had on payment of a penalty. Witnesses were examined on the side of the counter-petitioner mainly to prove two things and they are: (1) that the woman had offered satyagraha in front of the counter-petitioner's house; and (2) that she was friendly with her sister's husband. Neither of these, in my opinion, has any bearing on the question arising for decision in the case. Even conceding for argument's sake that Ex. P-1 was executed as a result of the pressure brought to bear upon the counter-petitioner by the satyagraph offered by the first petitioner he cannot wriggle out of the situation saying that he had no sort of connection with the woman. If he were serious he could have pursued his objection to the document further, and got it cancelled in appropriate other proceedings on the ground that it is vitiated by undue influence or coercion. No such attempt was hitherto made by him and that conduct is an unmistakable indication that the document was executed by him of his free will and that the present stand taken by him is unconscionable and absolutely without any good faith. Ex. D-4 is a debt bond executed by Cpw. 4 who is the first petitioner's sister's husband in favour of the counter-petitioner's uncle Cpw. 3 for Rs. 500/ -. Cpw. 4 would say that the amount received by him under the document was intended to be given as a gift to his wife's sister the first petitioner. From this the counter-petitioner would argue that Cpw. 4 was on friendly terms with the first petitioner and he would go a step further and say that he had even sexual contact with her and himself is the father of the child There is absolutely no foundation for any of these allegations. Cpw. 4 stated in his evidence that the amount was paid by him for the common good of both the petitioner and the counter-petitioner and the allegation of illicit intimacy was emphatically denied by him. Even if he had some consideration for the first petitioner that does not follow that he had illicit connection with her. Exts. D. 1 and D. 3 are two inland letters stated to have been sent by the first petitioner's brother to the counter-petitioner. They relate to certain negotiations between the two in connection with the proposed marriage between the first petitioner and the counter-petitioner. The letters are of no avail and there is no knowing as to whether they are letters written by the first petitioner's brother. The brother is one Chellayyan and he is reported to be alive. Unless he comes forward and owns the authorship of the letters they cannot be looked into for any purpose in the case. Even if the letters are seen to have been written by Chellayyan the first petitioner is not in any way bound by any of the statements made therein. The learned Magistrate is gravely in error in having drawn conclusions against the first petitioner from the contents of these letters.;

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