Syed Ahamed Sheriff vs Rajinamani and others

David Annoussamy, J.—This revision is by the husband. The respondents herein filed an application under S. 125, Crl. P.C., claiming

maintenance to the tune of Rs. 400 in all against the petitioner herein. The petitioner''s case was that the first respondent herein was not his legally

wedded wife and that the two children (respondents 2 and 3) were not born to them. The Magistrate, finding that there was a marriage agreement

between the parties, Ex.P1, held that there was a legal marriage. As for the children, on a consideration of the marriage agreement, the evidence of

the mother and the birth certificates issued by the Corporation of Trichi, Ex.P3 and P4, he held that they were children born to the petitioner herein

and accordingly ordered payment of maintenance to the tune of Rs. 125 per month in favour of the first respondent (wife) and Rs. 50 each per

month in respect of the children. This order is challenged by the petitioner in this revision petition.

The learned counsel appearing for the revision petitioner contended that the marriage between a Christian and a non-Christian, the first

respondent herein being a Christian and the petitioner being a Muslim, has necessarily to be solemnised as per the provisions of Indian Christian

Marriage Act, and that otherwise it would be void as per the provisions of S. 4 of the Act. It is not shown that the marriage has been celebrated in

accordance with the Act. It is true that according to the strict Mohammadan Law, a marriage between a Muslim and a non-Muslim, especially a

Christian, is perfectly allowed and valid. But that position of law will prevail if Mohammadan Law is only to operate. In India Mohammadan Law

in that field is corrected and modified by the Indian Christian Marriage Act as far as the marriage of Muslim and Christian is concerned. Therefore,

no relief can be afforded to the petitioner in this case.

As far as the maintenance to the children is concerned, it is contended by the learned counsel for the revision petitioner that if paternity is not

adequately proved, one is barred from launching proceedings under S. 125 , Crl. P.C. To deal with this contention it is necessary to bear in mind

that proceeding before the Magistrate is a summary one, that is finding is not res judicata, that he has to afford emergent relief to people in need.

He cannot embark upon an elaborate enquiry on the matter of paternity. It is not necessary that the marriage is established beyond reasonable

doubt. It is enough for the Magistrate that a prima facie case is made out in order to afford the immediate and speedy relief to the suffering party

under S. 125, Crl. P.C., while leaving open to the aggrieved party the right to agitate his plea before the civil court, if he is so advised. In the

present case, the Magistrate had before him the marriage agreement Ex.P1, which would lead to the presumption that the parties have been living

together, the evidence of the mother that the children were born to the petitioner and the birth certificates Exs.P3 and P4, they were sufficient to

show that the petitioner is the father. It is open to the petitioner to challenge the entries in the certificates and it he succeeds in that, he will no longer

be bound to pay any maintenance. Till such time, the order of the Magistrate is perfectly justified. In the result, the revision case is allowed in part,

the order of the Magistrate allowing maintenance to the first respondent (wife) is set aside. The order of the Magistrate allowing maintenance to

respondents 2 and 3 (children) is confirmed.