IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 Crl.Rev.Pet.No. 1298 of 2001() ------------------------------ CRRP.10/2000 of II ADDL. SESSIONS COURT, PALAKKAD MC.28/1997 of CHIEF JUDICIAL MAGISTRATE'S COURT, PALAKKAD .................... PETITIONER(S): RESPONDENTS:PETITIONERS: ----------------------------------------------------------------------- 1. GEETHA, D/O.LATE KANDAN, PARAMBATHAR,A, PUTHUR, PALAKKAD. 2. SARANYA, D/O.GEETHA (MINOR), REPRESENTED BY 1ST PETITIONER GEETHA, ..DO...DO..... BY ADVS. MR.N.K.KARNIS, MR.ROY T.S. RESPONDENT(S): PETITIONER:COUNTER PETITIONER AND STATE: ----------------------------------------------------------------------------------------------------- 1. SIVAN, S/O.KUPPANDI, PADATHU VEEDU, KALVAKULAM, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, COCHIN – 31. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1298 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 30th March, 2009 ORDER The revision is directed against the order passed by the learned Sessions Judge reversing the order of maintenance passed in favour of the 1st petitioner under Section 125 of the Code of Criminal Procedure. The 1st petitioner, on her own behalf, and also for the 2nd petitioner, her child claimed maintenance from the 1st respondent alleging that she is his legally wedded wife and second petitioner child was born out of their wedlock. The 1st respondent, counter petitioner in the proceedings, resisted the claim contending that he had not married the 1st petitioner. He also denied the paternity of the second petitioner as his child. The learned Magistrate, after appreciating the materials produced, upheld the claim of the petitioner that she is the legally wedded wife of the 1st respondent and second petitioner is his child. Negligence to maintain the petitioners was also found proved and, thereupon, the first respondent was directed to pay maintenance at the rate of Rs.250/- to the first petitioner and Rs.150/- to the second petitioner. Questioning the legality, propriety and correctness of the order of the Magistrate, the 1st respondent preferred a revision before the Crl.R.P.1298/01 - 2 - Sessions Judge. The learned Sessions Judge, after examining the materials arrived at the conclusion that there was no legal evidence in the case to conclude that the first petitioner had proved her marriage with the 1st respondent to claim the status of a legally wedded wife. However, on the materials produced establishing long cohabitation between them, it was concluded that the second petitioner was the illegitimate child of the first respondent. So, on such conclusion the maintenance awarded by the Magistrate to the 1st petitioner was set aside, but that of the 2nd petitioner child was confirmed. The revision has been filed questioning the order of the Sessions Judge setting aside the maintenance awarded to the 1st petitioner by the Magistrate. 2. Though notice was served on the 1st respondent, he has not entered appearance. I heard the learned counsel for the petitioners. Order of the learned Sessions Judge setting aside the maintenance of the first petitioner awarded by the Magistrate is challenged by the counsel contending sufficient materials had been placed in the case proving the factum of lawful marriage between the parties. Sessions Judge went wrong in setting aside the finding arrived by the Magistrate in exercise of revisional jurisdiction is canvassed by the Crl.R.P.1298/01 - 3 - counsel to contend that the finding of Magistrate and the maintenance awarded to the first petitioner, holding that she is the legally wedded wife of the first respondent, have to be restored. I have perused the records of the case to examine the propriety, correctness and legality of the order passed by the learned Sessions Judge. Normally, in exercise of revisional jurisdiction which is supervisory in character and intended to avoid failure of justice , a reappreciation of the evidence is permissible only where it is shown that the finding entered by the inferior court is so perverse and it could not have been formed on the materials produced. So, where it is noticed that the Sessions Judge in exercising revisional jurisdiction had entered a finding on marriage as different from that of the Magistrate, the question whether he was justified in doing so require anxious consideration. Perusing the order passed by the learned Magistrate, it is noticed, though he had held in favour of the 1st petitioner to hold that the factum of marriage as claimed by her was established, he has not adverted to the materials produced in the case to form such an opinion. She had volunteered to have a DNA test to prove the paternity of the child, the second petitioner, but, the 1st respondent was not prepared to undergo such test along with Crl.R.P.1298/01 - 4 - other circumstances borne out by the materials that the parties had long cohabitation after the alleged marriage claimed by the 1st petitioner, it seems, persuaded the Magistrate to reach the conclusion that her claim of marriage with the 1st respondent is established and that she is his legally wedded wife. I am afraid, the circumstances relied by the learned Magistrate to decide the disputed question of marriage are not sufficient. The learned Sessions Judge taking note of the serious infirmity in the order of the Magistrate was compelled to review the materials to decide the question whether actually the marriage alleged by the first petitioner to the 1st respondent had been proved by legal evidence. In examining that question, it was noticed that despite the stout assertion and categorical denial from the 1st respondent disputing the marriage, the 1st petitioner when examined as P.W.1 had not adverted to the ceremonies performed in her marriage. Other than making a mere statement that her marriage with the 1st respondent was performed at Guruvayoor temple in accordance with the customs of the community, nothing more was stated by her in evidence. A mere assertion that the marriage was performed in accordance with rites and customs of the community is not sufficient to prove the factum of marriage to claim maintenance Crl.R.P.1298/01 - 5 - under Section 125 of the Cr.P.C. She examined one witness as P.W.2 to show that he had attended the marriage. Strangely enough when the petitioner was examined, she claimed that the marriage was witnessed by some of her relatives and friends of the 1st respondent. But, P.W.2, as rightly pointed out by the Sessions Judge was not one such person named by her who had attended her marriage. Further more, it is her definite case that the marriage was performed at Guruvayoor temple. If that be so, nothing prevented her from collecting documentary evidence from the temple to establish that her marriage with the first respondent took place as alleged. Perhaps, realising the difficulty in getting documentary evidence to prove her alleged marriage in the temple, through P.W.2, a case was projected that the receipt of payment to perform the marriage was collected by the 1st respondent. Whether the receipt was collected by the 1st respondent or any other person is irrelevant since if at all a marriage had taken place in the temple, essentially there will be properly maintained registers in the temple on the marriages conducted. The evidence of P.W.2, after a careful scrutiny, was found hardly inspiring confidence by the learned Sessions Judge. After glancing through his evidence, I am compelled to agree. After anxious consideration to Crl.R.P.1298/01 - 6 - examine whether any miscarriage of justice had arisen in the upsetting of a finding rendered in favour of a destituted lady by the learned Sessions Judge I find that no different view is permissible. Conclusion reached by the learned Sessions Judge that there is hardly any material worthmentioning proving a lawful marriage between the first petitioner and the 1st respondent has to be upheld. Order passed by the learned Sessions Judge setting aside the claim of maintenance awarded to the 1st petitioner in the proved facts of the case is proper and valid. The revision is devoid of any merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE