Syed Ahamed Sheriff vs Rajinamani and Others

David Annoussamy, J.—This revision is by the husband. The Respondent herein filed an application u/s 125 , Code of Criminal Procedure, claiming maintenance to the time 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. P-1, 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. P-3 and P-5, he held that they were children born to the Petitioner herein and, accordingly, ordered payment of maintenance to the tune of Rs. 125 PM in favour of the first Respondent (wife) and Rs. 50 each PM 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 solemnized as per the provisions of Indian Christian Marriage Act and that, otherwise, it would be void as per the provisions of Section 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 Mohammedan Law, a marriage between a Muslim and non-Muslim, especially a Christian, is perfectly allowed and valid. But the position of law will prevail if Mohammedan Law is only to operate. In Indian Mohammedan Law in that field is correctly 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 proceeding u/s 125 , Code of Criminal Procedure. 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 u/s 125 , Code of Criminal Procedure, 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.P-1, 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. P-3 and P-4; 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, if 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.