1. This revision petition is directed against the lower court's order in M. O. No. 10/ 1956 on the file of that court. That was a case filed by the mother and her three children, under Section 488 of the Code of Criminal Procedure, for an order against the respondent to pay maintenance for the three children alleged to be born to him in the first petitioner. According to the 1st petitioner, she is the legally wedded wife of the respondent and petitioners 2 to 4 are the children born of that union. The respondent has subsequently married another lady and thereafter he has been neglecting to maintain these petitioners.
The first petitioner, however, has not claimed anything for her maintenance from the respondent. The claim for maintenance has been put forward only on behalf of the minor children who are petitioners 2 to 4. On behalf of the petitioners the first petitioner as Pw. 1 gave evidence in support of her case that she is the legally wedded wife of the respondent and that petitioners 2 to 4 are the children born to her from the respondent. Exts. P1 to P5 were also produced to prove the case of her marriage with the respondent.
The learned Magistrate discarded this evidence as insufficient to prove the marriage between the first petitioner and the respondent. He further found that when the marriage between the first petitioner and the respondent is not proved 'there is no scope in this case for a finding that the counter-petitioner is the father of the children on whoso behalf maintenance is claimed.' consistent with such a conclusion, the petition filed on behalf of these children was dismissed. The petitioners have therefore come up in revision.
2. Even if the learned Magistrate was right in holding that the marriage between the first petitioner and the respondent has not been proved by any independent evidence, his further conclusion that in the absence of such proof there is no scope for finding that the respondent is the father of petitioners 2 to 4, will not necessarily follow. For sustaining a claim for maintenance on behalf of the minor children it is not necessary to prove that they were born to the respondent as the result of a legal marriage. Even if it is proved that these children were born to him as the result of an illegitimate union, the father is bound to maintain them.
Apart from this aspect it has to be stated that the learned Magistrate came to the conclusion that the marriage between the first petitioner and the respondent has not been proved, without a proper appreciation of the evidence already referred to and without examining the witnesses whom the first Petitioner wanted to examine. The question of the marriage between herself and the respondent was agitated in a prior proceeding to which both of them were parties. It was a case of bigamy initiated by the first petitioner against the respondent. Ext. P 4 is copy of the order in that case and it shows that it was definitely found that the first petitioner had been legally married by the respondent.
The learned Magistrate was not right in ignoring this finding altogether and in holding that he can decide the question of the marriage between these parties only on the basis of the evidence adduced in the present case. The finding in Ext. P 4 has to be given its due weight in the appreciation of the evidence in the present case. Exts. P 1 to P 3 are also relied on by the first petitioner to corroborate her sworn statement that the respondent had married her. The respondent was for some time in military service and Ext. P 3 is his service book. This service book is in the possession of the first petitioner and she has produced it in this case.
The fact that this book has been in the possession of the first petitioner is certainly a circumstance in support of her case that the respondent and herself were living as husband and wife. Exts. P 1 and P 2 are said to be letters sent by the respondent to the first petitioner. These letters also go in support of her ease of the relationship between them. The letters, though not signed by anybody, are stated to be in the handwriting of the respondent. He has not gone into the witness-box to deny these letters, in the circumstances of this case the lower court should have examined him.
If he deliberately declines to go into the box, such a conduct would justify the necessary adverse inferences being drawn against him. Since the first petitioner wanted to examine some witnesses on her side, the lower court should have taken the necessary steps for getting at those witnesses to give evidence in the case. The summary manner in which the case was disposed of without taking the necessary steps in that direction, cannot be said to have been proper in the circumstances of this case. I think that the case has to be sent back to the lower court for fresh disposal after examining the petitioner's witnesses and the respondent also, if possible.
3. In the result this revision petition is allowed and the order of the lower court is set aside. The case is sent back to the lower court for fresh disposal in accordance with law and in the light of the observations made above.