IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.06.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.819 of 2006 and M.P.No.1 of 2006 Salomon ... Petitioner /Respondent vs. 1. Elizabeth 2. Minor Napoleon ... Respondents/Petitioners Prayer: Petition filed under Sections 397 and 401 of Cr.P.C. against the order passed by the learned Judicial Magistrate, Arakkonam in M.C.No.3 of 1999 dated 06.04.2006 and pray for setting aside the same. For Petitioner : Ms.J.Juliet Pushpa For Respondents : Mr.N.Subbarayalu O R D E R Animadverting upon the order dated 06.04.2006, passed by the learned Judicial Magistrate, Arakkonam in M.C.No.3 of 1999, this Criminal Revision case is focussed. 2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this revision would run thus: The respondents herein filed M.C.No.3 of 1999 under Section 125 of Cr.P.C. claiming maintenance as against Salomon, the revision petitioner herein on the ground that the first respondent herein, namely Elizabeth and Salomon had love affair with each other and in that process Elizabeth became pregnant due to the revision petitioner's access with her. As such, even while she was pregnant, by the intervention of the elders, they underwent shot gun marriage and thereafter, the minor child R2 herein, Napoleon was born. Inasmuch as the revision petitioner herein started estranging the respondents herein, whereupon, they were constrained to file the said M.C. claiming maintenance. 3. During enquiry, on the side of the respondents herein, P.Ws.1 to 3 were examined and no document was marked. On the side of the revision petitioner herein, no oral or documentary evidence was adduced. https://hcservices.ecourts.gov.in/hcservices/ 4. Ultimately the Magistrate Court awarded maintenance, as against which revision was filed before the Sessions Judge and the matter was remanded back to the Magistrate Court. Thereafter, the Magistrate passed an order awarding maintenance. Being aggrieved by the order by the Magistrate Court, this present revision has been filed on various grounds, the pith and marrow, the nitty gritty of them would run thus: Due opportunity to cross examine P.Ws.1 to 3 was not given even after remand order passed by the Sessions Judge. Without any evidence, much less reasonable evidence, the Magistrate went to the extent of holding that there took place marriage between the revision petitioner herein and the first respondent and that R2 is the legitimate child of the revision petitioner. There is nothing to indicate that the minor was born to the petitioner. Accordingly the revision petitioner prayed for setting aside the order of the Magistrate Court in awarding maintenance. 5. Heard both sides. 6. The point for consideration is as to whether the order awarding maintenance by the Magistrate is perverse and one emerged without any evidence on record and that too without giving due opportunity to the revision petitioner to put forth his case by cross examining the witnesses P.Ws.1 to 3. 7. The learned counsel for the revision petitioner would invite the attention of this Court to the deposition of P.Ws.1 to 3 and submit that no cross examination was found recorded; that unless a witness is subjected to cross examination, his evidence cannot be relied on by a Court of law. Whereas, by way of torpedoing and pulverizing the case of the revision petitioner as put forth by the learned counsel for the revision petitioner, the learned counsel for the respondents herein would develop his argument to the effect that absolutely the revision petitioner herein did not take any steps to cross examine P.Ws.1 to 3 even after remand and no application also was filed for recalling those witnesses, on the other hand, the revision petitioner was hellbent to drag on the matter and tried his level best to wriggle out of his liability to pay maintenance. 8. A bare perusal of the records would reveal and display that P.Ws.1 to 3 were not cross examined for which the learned counsel for the revision petitioner would submit that no opportunity was given and in fact, she would also invite my attention to the docket order passed by the Magistrate concerned which is found available at page No.11 of the typed set. A plain reading of it would reveal that on 06.03.2006 the matter was reopened after remand, on 20.03.2006 adjournment was sought on some grounds, where upon, adjournment was given by the Magistrate. Thereafter, on 04.04.2006, the Magistrate recorded to the effect that both sides stated that they had no more evidence. Whereupon after hearing both sides on 06.04.2006, the Magistrate passed the order of maintenance. If at all the revision petitioner had the real and genuine intention to cross examine P.Ws.1 to 3, he would have very well filed an application as per Cr.P.C. for https://hcservices.ecourts.gov.in/hcservices/ recalling those witnesses for the purpose of cross examination, but there is nothing to indicate and exemplify that any step was taken by the revision petitioner in that regard. In fact, the docket endorsement made on 04.04.2006 by the Magistrate would amply make the point clear that the revision petitioner straight away wanted to argue the matter from the available evidence. Hence in such a case, the principle audi alteram partem cannot be extended ad infinitum or ad nauseam but only to a reasonable extent, the principles of natural justice can be adhered to. 9. Under Section 125 Cr.P.C., summary proceedings are contemplated. The very respondent therein i.e. the revision petitioner herein did not insist for cross examining the witnesses, for which the Magistrate cannot be found fault with. As such, I am of the opinion that the revision petitioner cannot be heard to contend that due opportunity was not given to cross examine those witnesses. 10. However, from a plain reading of the very deposition of P.Ws.1 to 3 coupled with the averments as found set out in the petition under Section 125 Cr.P.C., it could readily be understood that absolutely there is no iota or shred, shard or miniscule, molecular or scintilla of evidence to demonstrate and display that between the said Elizabeth and Salomon there took place any legal marriage. It is not at once clear whether they are Christians or Hindus or that they belong to any other religious denomination. In India it is very clear that an Indian Christian cannot on par with Suyamariyatha marriage as contemplated under 7-A of the Hindu Marriage Act undergo a form of marriage. Necessarily Indian Christian should undergo marriage only under the Indian Christian Marriage Act. I am also fully aware of the fact that as per the Indian Christian Marriage Act, if any one of the parties to the marriage is a Christian, that would be sufficient. Here there is no whisper at all as to what form of marriage the said Elizabeth and Salomon underwent before the Panchayatar. P.Ws.2 and 3 would simply depose as though they arranged for the marriage between Elizabeth and Salomon without committing themselves as to what sort of marrige they underwent and what sort of marriage P.W.2 solemnized for them. Hence in such a case, it is clear that the Magistrate was totally wrong in jumping to the conclusion that a legitimate marriage took place between Elizabeth and Salomon and such a finding is liable to be set aside. I also make it clear that I do not in any way give a finding that no valid marriage could have taken place at all between Elizabeth and Salomon and what I record here is that as per evidence available there is nothing to indicate that a legal marriage took place between Elizabeth and Salomon. Accordingly the finding of the Magistrate that Elizabeth and Salomon underwent legal marriage is required to be set aside. Consequently and as a sequele, the awarding of maintenance by the Magistrate directing the complainant to pay maintenance to Elizabeth is set aside. 11. Regarding awarding of maintenance by the Magistrate in favour of the minor child, I would like to point out that proceedings under Section 125 Cr.P.C. is summary in nature and hence believing the version of P.Ws.1 to 3 the Magistrate held that Elizabeth and https://hcservices.ecourts.gov.in/hcservices/ Salomon loved each other and in that process, Elizabeth became pregnant through Salomon and delivered a child and such a finding warrants no interference. In a summary proceeding, clinching evidence relating to parentage cannot be expected. In this case, the witnesses in unison would state that virtually Elizabeth and Salomon lived together for a considerable time and in that process Elizabeth became pregnant and thereafter, before Panchayatars, the alleged marriage took place. 12. My discussion supra would indicate and exemplify that there is no evidence to prove the legal marriage. However, there is adequate evidence to prove and demonstrate that Elizabeth and Salomon lived together and they gave birth to the child. 13. It is a trite proposition of law that even an illegitimate child is entitled to claim maintenance from his/her father. Hence in such a case, absolutely there is no flaw in the judgment of the lower Court in awarding maintenance in favour of the child in a sum of Rs.450/- per month payable by the revision petitioner from the date of the petition. 14. The learned counsel for the revision petitioner would implore and entreat, pray and request that in the event of this Court confirming the order of maintenance in favour of the child, let maintenance be directed to be paid from the date of the order of the Magistrate or at least from the date of remand order passed earlier by the learned Sessions Judge. I am of the view that such an order would operate as a bad precedent affecting enumerable hapless and helpless victims of desertion and neglect and hence a fortiori, I hold that ordering the respondent to pay maintenance in a maintenance application under section 125 Cr.P.C. from the date of O.P. is the rule and ordering otherwise is only an exception. Accordingly I confirm the order of the Magistrate in awarding maintenance in favour of the child and the order of maintenance passed by the Magistrate in favour of the wife is set aside. Accordingly, this criminal revision petition is allowed in part. Consequently, connected miscellaneous petition is closed. gms Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Judicial Magistrate, Arakkonam 2. Do Through The Chief Judicial Magistrate, North Arcot at Vellore. https://hcservices.ecourts.gov.in/hcservices/ Copy to: The Section Officer, Criminal Section, High Court, Madras. + 1 cc to Mr. N. Subbarayalu, Advocate, SR No.23575 + 1 cc to Mrs. P. V. Rajeswari, Advocate, SR No.24031 BKY(CO) SR/23.7.2009 Crl.R.C.No.819 of 2006 https://hcservices.ecourts.gov.in/hcservices/