JUDGMENT
D.J. Moharir, J.
1. This appeal under Section 19 of the Family Courts Act, 1984 is directed against the order passed by the learned Judge of the Family Court at Bombay on a petition under Section 125 of the Criminal Procedure Code.
2. The original petitioner Hulgawa claiming to be the wife of the original respondent Gangaram Yellappa Kunchikurve applied to the Court for grant of maintenance to herself as also the six children which were born to her from the respondent-husband. In her application she averred that she had been residing as the legally wedded wife of the respondent Gangaram, in a hut at Kumbharwada, Dharavi alongwith her children and this hut belonged to her. A few months before the presentation of the application under Section 125 of the Cr. P. C to the Metropolitan Magistrate at Bombay, the husband had started insisting upon selling away the hut. She had opposed this move which resulted in the commencement of her ill-treatment. The respondent-husband has taken another woman in his keeping and was living with her in another hut at a short distance from the petitioner’s wife’s hut, The petitioner alleged, this amounted to a refusal to maintain both as regards her and the children, at the instance of the respondent husband. In her application, dated 20-11-1984 to the Metropolitan Magistrate she therefore prayed for a monthly maintenance allowance for herself at the rate of Rs. 150 per month and at the rate of Rs 100 for each of the five children they being minors and the eldest child having by that time already attained majority.
3. The respondent-husband made some basic categoric denials. According to him, the petitioner was not at all his legally wedded wife. He had kept her as his mistress for a few months near about 1983. At that time he had already a legally wedded wife Yankamma. From the petitioner Hulgawa as the mistress two issues, both sons, were admittedly born to her. As regards the remaining four children, he disowns his paternity. No maintenance allowance can be claimed in the circumstances by and on behalf of the petitioner and the four minor children.
4. Part of the hearing on this application under Section 125 of the Criminal Procedure Code proceeded before the learned Metropolitan Magistrate. The evidence of the petitioner Hulgawa and one witness Dr. Raut came to be recorded by the learned Magistrate. By then the Family Courts Act, 1984 came into force and the Family Court having been established for Bombay, the matter was transferred to the Family Court. An examination of two more witnesses for the petitioner Hulgawa as also the evidence of the respondent Gangaram and one witness on his behalf came to be recorded by the learned Judge of the Family Court.
5. Upon consideration of the evidence as recorded, the learned Judge of the Family Court came to the conclusion that the marriage between the petitioner and the respondent is not proved and therefore the petitioner’s being the legally wedded wife of the respondent is a fact that she had been unable to establish. However, the fact that the two had lived together being admitted, the learned Judge accepted the further evidence that not only the two eldest sons Sankappa and Laxman but also the remaining four children were born to Hulgawa from the respondent-husband. Of these six children two had already come to attain majority. The remaining four children being minors and irrespective of their being no illegitimate issues as such, the liability to provide maintenance to them was still that of the respondent as a putative father. In respect of these four minor children, the learned Judge fixed the maintenance allowance at Rs. 60 for each of them as against the claim of Rs. 100 p. m. for each. Having regard to the fact that the petitioner-wife had no means to support herself and the children as also having regard to the respondent’s own earning capacity as a Sweeper employed in the Bombay Municipal Corporation.
6. The present appeal under Section 19 of the-Family Courts Act is therefore, directed against the two findings recited by the lower Court, namely (i) that the appellant was not a legally wedded, wife of the respondent and that the maintenance allowance was therefore not payable to her and (ii) that the monthly maintenance allowance as ordered to be paid to the minor children at the rate of Rs. 60 per month was indeed insufficient and inadequate, needing to be raised adequately.
7. We have heard learned Counsel for the parties and with their assistance we have also gone through the entire evidence on record. The first submission of learned Counsel Shri Bagwe is that the trial Court erred in holding that the appellant Hulgawa was not the legally wedded wife of the respondent-husband. The reasoning adopted by the learned Judge in this behalf was that there was no satisfactory evidence as to whether the marriage between the parties had taken place, who were the person i.e. the Priest who had solemnised this marriage and who were the persons who had actually attended and were therefore, witnesses to these marriage. Apart from the petitioner’s assertion on oath that she had come to be married to the respondent some 26 years before the date of her evidence which would be the year 1962, the only evidence led was that of one Elish PW 2. This witness was disbelieved by the trial Court for the reason that he did not belong to the community to which the parties belong and for the reason that he had not been knowing the parties prior to this marriage. Elish’s evidence was, therefore, considered doubtful. The petitioner’s brother Basanna PW 3 who could have been only four years old at the time of the elder, sister Hulgavva’s marriage in 1962 and could not have authentically testified to the fact of the marriage. It is in these circumstances and upon a categoric denial of the respondent of the factum of marriage also, that the trial Court rejected her claim of being a legally wedded wife Learned Counsel Shri Bagwe seriously criticised this reasoning adopted by the trial Court endeavouring to show that the entire evidence on record has come to be totally misappreciated and misconceived. He points out that the respondent having admitted the fact of co-habitation with the appellant definitely for a certain duration has to be found as a false witness on his own admissions in cross-examination. As was pointed out, the respondent’s case was that several years ago he had taken the appellant Hulagawa in his keeping for a certain period and that two children were admittedly born to him from her they being Sankappa and Laxman. At the stage of his evidence he indicated that he had taken Hulgawa in his keeping as a mistress only for a few months and that was about seven years prior to the date on which he gave evidence in the Court. His evidence was recorded in the year 1990. Therefore, according to him, the appellant was his keep from the year 1983 onwards for a certain period. If that were the truth, the eldest child born to him at the date of his evidence would only be seven years old. But he admits that both Sankappa and Laxman are his sons born from Hulgavva and there is no dispute that these two children are already majors. In the circumstances the appellant has clearly led to the Court in regard to the period and extent of his association with the appellant whether as a keep or as a wife. The appellant Hulgawa asserted that there was a marriage which was actually celebrated between her and the respondent while she was living with her parents and the younger brother Basanna. It was after the marriage that the respondent had taken up Yankamma as his mistress she being a woman deserted by her earlier husband by name Yallappa. As for the marriage, she admitted that there was no documentary proof and therefore relied principally on the evidence of the witness Elish. We hasten to note that the trial Court rejected the evidence of Elish solely on the ground that he did not belong to the community to which the parties belong. In the first place we find that there is no such statement made by Elish that he does not belong to the community to which the parties belong. Secondly one is not required to be a member of the same community as of the parties to the wedding to be a witness competent to testify to the fact of solemnisation of the marriage. Elish’s evidence as Shri Bagwe urges, deserves to be accepted when he states corroboratively enough that the marriage had taken place in the year 1962. He also describes with a certain generality no doubt, the ceremony as it took place, the erection of the pendal having two compartments for accommodating the guests from the side of the bride and the bridegroom respectively, witnessing the bride and the bridegroom garlanding each other and the feast partaken of thereafter. One important circumstance which he speaks about is that he was the agent of the Peerless Finance Company and Hulgawa was one of the subscribers paying Rs. 13 per week. That was how he came to be further associated with her as his customer and knew her to be the wife, living as such with the respondent Gangaram. Lending not very strong no doubt but some degree of corroboration is also the production of the documentary evidence by Dr. Raut. He produced an extract Exhibit 8 of the certified copy of the register of births and deaths, dated 20-8-1977 and the name of the child being mentioned as Sankappa. There is a second entry, dated 6-5-1981 about the child born to Hulgawa, a male issue. Now, it is interesting to note that the name of Hulgawa’s husband is recorded in this entry is being Gangaram Yellappa Kadar and that precisely is the name which the respondent gives of himself on oath when examined as a witness. The further support to the co-habitation of the appellant and the respondent as wife and husband comes to be testified by her brother Basanna. It is with him that she had been living and he asserts that he treats Hulgawa’s children as his nephews born to her from the respondent Gangaram. The most important, significant and to a degree crucial also, is one more significant admission made by the respondent’s mother Sunkama. She has stated that her son Gangaram’s wife is one Yankamma. From her three sons and four daughters were born to him. She also admitted the fact, only guardedly, that the appellant-petitioner used to come and meet her son Gangaram quite often, though she also hastened to say that the woman never lived’ with him. On cross-examination she revealed that the appellant Hulgawa was in fact the daughter of her cousin, a relationship indeed close enough. With that fact disclosed Shri Bagwe argues and very rightly that the association between these two persons who are cousins, as being yet of a man keeping a mistress has to be considered as entirely inconceivable. The learned Judge of the trial Court, as Shri Bagwe therefore argues, kept himself oblivious of these facts and circumstances confining himself to a narrow expectation of a strict proof of the fact of marriage. Shri Bagwe has therefore relied on a decision in 1981 Cri LJ NOC 48, Mohit Kumar Mukherjee v. Smt Hera Mukherjee and others, where with reference to Section 50 of the Evidence Act, it was observed :
…To form an opinion as to the relationship of one person to another the Court may entertain the opinion, expressed by Conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject….
Therefore the evidence of Hulgawa’s brother Basanna that in his opinion his sister and Gangaram were wife and husband because he found them conducting themselves as such can be taken into consideration by the Court. The learned Judge, in our opinion, fell into an error in brushing away Basanna’s testimony only because he had not actually witnessed the marriage between his sister and Gangaram, He also relied on the decision of this Court in State v. Vithabai Laxman, 1973 (75) Bom, L.R. 447, wherein it was observed that :
Under Section 488 of the Criminal Procedure Code, 1898, a prima facie case to support a claim that the applicant is the legally married wife of the non-applicant has to be established by the applicant. Evidence tendered on oath by both the parties, circumstances relating to the conduct of parties, their previous admissions, their movements prior to coming in Court are all valuable guides in such matters. Preponderance of probabilities, therefore, may indicate that the applicant’s claim is trustworthy. That is sufficient to enable the Court to act under Section 488 of the Code.
The burden, in the matrimonial cases or when the matter is with regard to punishment to the accused upon the proof of the marriage, is not the same as is under Section 488 of the Code. It is a quasi-criminal jurisdiction. The probabilities involved in the case can be collected together to find out whether the applicant has made out a case that she is the legally married wife of the non-applicant.
More so in case as the present one where documentary evidence as such did not exist and could not be produced by the petitioner claiming to be the legally wedded wife. We may also observe that we carry indeed a very poor opinion of the respondent as a witness. We consider his denials properly unacceptable on the ground of the prevacatory stances which he is seen to have adopted throughout his deposition as a witness. To some of the other instances of his falsehood and engineering of reasons, we will refer when we consider the second question in issue about the quantum of maintenance to be paid.
8. Suffice it to say that the learned Judge could not have narrowed himself down, for rejecting the petitioner’s claim of being a legally wedded wife, to the premise that there was no documentary evidence in that behalf and on the premies-unfounded that the witness Elish was a person who did not belong to the community to which the parties belong or was not therefore competent to testify to the fact of the marriage solemnised between them.
9. Having accepted the appellant’s claim that she is therefore by preponderance of probabilities of this nature proved to be the legally wedded wife of the respondent, we proceed to consider her case that she has been, alongwith, her children neglected and refused to be maintained by the respondent-husband. This is more or less indisputable firstly for the indisputable reason and circumstance that the respondent himself admits that he has been living with the other woman Yankamma and that the children born to her are from him; that for years together, almost since before the year 1983 the appellant has been required to stay with her younger brother Basanna as testified to by him. “The other woman” being the preference of the respondent, the neglect and refusal to maintain the appellant-petitioner is not only established by her version but must even be obvious according to us when he also admits that, as many as seven issues have been born to him from this other woman Yankamma. A person who having admitted the fact of co-habitation with the appellant at a certain point of time, resiles from this statement of allegation and goes even to the extent of saying that he does not even know and has not even seen the woman at any time before the proceedings commenced can only be stamped by us as a stark liar. The respondent has stated that he has never lived with her and no issue was born to him from her and, then proceeds to admit in the next breath that the two young boys Sankappa and Laxman are issues born to her from him and they are already majors at the date of the present proceedings. Yet at the same time he proceeds to deny the paternity of the four others. What we therefore read between the lines is clearly that it does not put the petitioner to any loss in admitting the paternity of two eldest brothers Sankappa and Laxman for whom he would not be responsible for providing maintenance and yet denies the paternity in respect of the other four since they are minor ones. This, as we may surmise in simpler words is only a crooked approach. Reverting to the point for consideration on the basis of these indisputable facts we have no hesitation in coming to the conclusion that the appellant-petitioner has been neglected and refused to be maintained by the respondent-husband. As regards her inability to maintain herself, there can again be no question that indeed she is incapacitated, with the burden of undergoing as many as six conceptions during the short span of 12 years. The petitioner has also asserted that she is a totally illiterate person and has no means of livelihood whatsoever. Without suggesting the fact to her the respondent however stated that the petitioner makes grooms and sells them in the market and thus earns a living. There is no evidence in this behalf apart from the failure to suggest that factum to the petitioner herself. The petitioner has therefore claimed that she is entitled to maintenance not only for herself but also for the four minor children, which we hold were issues born to the Respondent from her as his legally wedded wife. The respondent has admitted that as a Safai Kamgar in the Bombay Municipal Corporation he earns Rs. 1,200 per month. This earning as we appreciate would have to go towards the maintenance of the respondent himself, his mother and the petitioner and the four children. We also appreciate that having concluded that the petitioner is a person who is legally wedded wife and that the children born to the respondent from Yankamma would therefore be illegitimate ones and to whom also the respondent would be liable to provide maintenance, and even in spite of our awareness of the somewhat inadequacy of it having regard to the escalating prices of the necessities of life also, Rs. 100 per month is the best that can be awardable to the appellant-petitioner by way of a maintenance allowance from the respondent-husband. It follows therefore that the award of maintenance at Rs. 60 per month to each of the four minor children would also have to be considered as quite in order.
10. In that view of the matter, we would have to allow the appeal. At this stage learned Counsel Shri Kakade made as feeble as futile an effort to urge that the matter should be remanded to the trial Court for a further enquiry in that assistance of competent legal aid had been denied to the parties. We note that the engaging of a counsel for conducting proceedings on behalf of them is not a matter of right for the parties in the proceedings under the Family Courts Act. We also note that the learned Judge of the trial Court has also been circumspect enough and cautious of these restraints in as much as he has, as far as possible, endeavoured to appreciate the material facts during the examination of both of the parties nor does it appear that the assistance of legal acumen was necessary in the present case by reason of certain complicated issues of law being involved. There was non-according to us. The submission of Shri Kakade for remanding the matter to the trial Court has therefore to be mentioned only to reject the same.
11. In the result, the appeal is allowed. We hold that the appellant-petitioner is the legally wedded wife of the respondent and is entitled to a monthly maintenance allowance which we fix at Rs. 100 per month from March, 1992 when an interim order to this effect was also passed by this Court. We reject the prayer of the appellant-petitioner for an enhancement in the monthly maintenance allowance so far as the minor children are concerned. Having regard to the financial capacity of the respondent husband we leave the parties to bear their own costs of this appeal.