JUDGMENT
M. Karpagavinayagam, J.
1. The appellants are the defendants 1 and 2.
2. The first respondent (first plaintiff) – Jaini Bai is the second wife of the first appellant – Solomon. The second appellant (second defendant) – Mary Mathia Mathelena is the first wife of the first appellant (first defendant) — Salomon. Since the second appellant did not beget any child through the first appellant, the first appellant married the first respondent, the first plaintiff, as second wife on 15.1.1984. After the marriage, they lived together as husband and wife in the house of the first appellant. Out of their wedlock, Salomi, the second respondent (second defendant) was born on 11.2.1985. On the instigation made by the first defendant’s (first appellant) sister, both the appellants/defendants deserted the respondents/plaintiffs and therefore, the respondents came and joined the parents. The first appellant is not maintaining the plaintiffs from 4.3.1985. Inspite of repeated demands, the first defendant has not given any amount as maintenance. Hence, the second wife, on her behalf and on behalf of her minor daughter, filed the suit for maintenance.
3. The trial Court ultimately decided that the plaintiffs are entitled to the reliefs claimed by them, granting maintenance to both of them. Aggrieved by the judgment and decree of the trial Court, the defendants 1 and 2 filed an appeal before the lower appellate Court, which in turn partly allowed the appeal, holding that the first plaintiff would not be entitled to maintenance, since her marriage with the first appellant, the first defendant, is null and void due to existence of the first marriage, but however held that the second plaintiff, the minor daughter, would be entitled to maintenance. Having not satisfied with the judgment and decree of the lower appellate Court, the defendants have preferred this second appeal.
4. Learned counsel for the appellants Mr.Amalraj, on the strength of the judgment (Muthu Goundar vs. Poosari @ Palaniappan), would contend that both the Courts below have not appreciated the evidence in proper perspective, and when the Courts below failed to consider the relevant evidence in proper perspective, this Court is entitled to re-consider the evidence and re-appreciate the same. According to learned counsel for the appellants, the plaintiffs have failed to prove the marriage as well as the birth of the child through the marriage between the first plaintiff and the first defendant.
5. I have gone through the judgment cited supra and also the judgments rendered by both the Courts below.
6. Though the trial Court held in favour of both the plaintiffs, holding that they are entitled to maintenance, the lower appellate Court found that though the marriage between the first plaintiff and the first defendant was proved, the said marriage becomes null and void, in view of the existence of the earlier marriage of the first defendant with the second defendant. This finding has not been challenged before this Court.
7. It is strenuously contended by learned counsel for the appellants that the evidence relating to the marriage has not been clearly proved, in view of the fact that P.W.2 would not tell the correct date of marriage. It is contended that P.W.2, an independent witness in whose presence the marriage was performed, would state in a place of evidence that the marriage was held on 15th August and in another place that the marriage was held on 15th January, 1984 and as such, the evidence relating to the performance of the marriage has to be rejected.
8. I am unable to countenance the said argument for the reason that the Courts below would deal with this factual situation and hold that the evidence of both P.W.1, the first plaintiff and P.W.2, the independent witness, would clearly indicate that the marriage was held on 15.1.1984 in the presence of elders including P.W.2.
9. Though P.W.2, by mistake would refer to the date of marriage as 15th August, he explained in the cross-examination that there was a mistake and the marriage took place only on 15.1.1984.
10. According to the defendants, on the date, i.e. on 15.1.1984, the first defendant was on a duty at Karunagappalli and therefore, he could not have been present in the place of marriage on the alleged date. Both the Courts below rejected the case of the defendants on the reason that the alibi evidence produced by the first defendant has not been properly proved.
11. It is also noticed that when the application was filed on behalf of the plaintiffs to take the blood test to prove the paternity, the first defendant did not give his consent for subjecting himself to the blood test. As a matter of fact, D.W.1, the first defendant himself in his cross-examination, stated that he was not prepared to undergo the blood test.
12. Of course, it is true as laid down by the Supreme Court in Goutam Kundu vs. State of West Bengal that no person can be compelled to give sample of blood for analysis against his will and no adverse inference can be drawn against him for this refusal.
13. However, it is held in the very same judgment of the Supreme Court , that there must be a strong prima facie case in that the husband must establish the non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. Admittedly, this requirement has not been complied with by the husband, the first defendant. In that fact situation, the lower appellate Court correctly held that the child was born through the first plaintiff and the first defendant out of their wedlock, though the said marriage has to be held null and void in view of the subsistence of the first marriage of the first defendant and the second defendant. This factual finding in my view, cannot be said to be wrong.
14. This Court, in (cited supra) would of course hold that under Section 100 C.P.C., this Court is entitled to take into consideration the question whether the material evidence was considered by the lower Court, whether the finding of the lower appellate Court is based on evidence and whether the evidence is based on pleadings and if the findings of the Courts below are based only on surmises and not based on the evidence, then this Court is entitled to interfere with the findings.
15. Such a complaint cannot be made in the present case. Both the Courts below have elaborately considered the evidence of P.Ws.1 and 2 and also the evidence of D.W.1 and relevant documents, and the lower appellate Court found that only the second plaintiff is entitled to maintenance.
16. As such, there is no substantial question of law in the second appeal and the same is dismissed. No costs.