10 July 2023 8:40 AM GMT
The Madras High Court recently held that even if a marriage was not legal due to the existence of a first marriage, the second wife and the children born out of the second marriage will be entitled to maintenance under Section 125 of the Code of Criminal Procedure. “This Court is of the clear view that for the purpose of Section 125 Cr.P.C, the first petitioner can very well...
The Madras High Court recently held that even if a marriage was not legal due to the existence of a first marriage, the second wife and the children born out of the second marriage will be entitled to maintenance under Section 125 of the Code of Criminal Procedure.
“This Court is of the clear view that for the purpose of Section 125 Cr.P.C, the first petitioner can very well be considered as wife and the second petitioner as the son of the respondent. Hence, the finding of the trial Court that the petitioners are entitled to get maintenance from the respondent cannot be found fault with,” the court said, while upholding a trial court order.
Justice K Murali Shankar of the Madurai bench was dealing with a revision petition seeking review of an order passed by Family Court, Tirunelveli directing a man to pay a monthly maintenance of ten thousand rupees to his "wife" and their son and to pay the entire arrears of maintenance amount within a month.
The woman had earlier filed the maintenance petition contending that he had failed to maintain her and their son even though he was legally bound to maintain them. It was also submitted that he had demanded a sum of 25 lakh as dowry and when she could not meet the demand, he started avoiding her. She had also contended that he was getting a monthly salary of Rs. 50,000 and also getting more than Rs.90,000 as monthly rent from the 11 houses that he owned.
On the other hand, the man disputed the very marriage and paternity of the child. He submitted that he had married a different woman in 2011 and had a child from that marriage. He further contended that though a divorce petition was filed, the same was dismissed after trial and an appeal against the same is pending. Kumar also disputed his salary as claimed by the woman and submitted that he was getting only Rs.11,500 in hand and that he had been paying Rs.7000 as maintenance to his first wife and child. Thus, he contended that since there was no marriage between him and the woman and there was no relationship, he was not liable to pay maintenance.
From the documents produced, the court noted that the man's first marriage was still subsisting. Though the woman, the second 'wife' had produced the marriage invitation, marriage photo, Birth Certificate of the child etc to prove the alleged marriage, the court noted that since the first marriage was still subsisting, the second marriage can not be said to be valid even if proved.
"Marking of the photographs by the learned trial Judge cannot be found fault with. Moreover, as rightly pointed out by the learned counsel for the petitioners, when the said photographs were exhibited, no objection was raised by the respondent side. The first petitioner has given evidence with regard to the photographs taken at the time of their marriage and her evidence in this regard was not at all shaken during cross examination," said the court.
The court also noted that when cell phone records and copies of WhatsApp messages were produced by the woman, he initially admitted that the messages were sent from his cell phone and subsequently said that he had lost his phone. However, the trial court noted that the messages were sent in 2019 and thus, his submission loses significance.
The court also noted that when a question was put forward as to whether he was ready to take a DNA test to prove paternity, he specifically said he was not willing.
Thus, the court was satisfied that the couple were living together as husband and wife and from this relationship, their child was born.
“As rightly observed by the learned trial Judge, the respondent's deliberate cheating and fraudulent intention can very well be gathered from the stand of the respondent that he did know the first petitioner before filing of the maintenance case and that there was no relationship between him and the petitioners,” the court added.
The court also noted that though the man had argued that his salary was only Rs. 11,500, he had not produced any salary certificate or pay slip or any document from the employer to prove his income. Considering the same, the court noted that the trial court’s order of monthly maintenance of Rs 10,000 each for the woman and their child was not excessive.
Thus, the court dismissed the petition.
Case Title: Loyola Selva Kumar v Sharon Nisha
Citation: 2023 LiveLaw (Mad) 192
Counsel for the Petitioner: Mr.H.Arumugam
Counsel for the Respondents: Mr.A.Mohamed Hasim