Abdul Khadar Munwar vs Mohd. Iqbal Pasha and State

B.K. Somasekhara, J.—In this revision case, the order of the learned III Additional Sessions Judge, Kakinada in Crl.R.P. No. 22/93 is challenged. That was the order passed by the learned Additional Sessions Judge setting aside the order of the learned IV Additional Judicial Magistrate of 1st Class, Kakinada in M.C. No. 2/89 dated 25.1.1993. The matter arose out of a proceeding u/s 125 of the Code of Criminal Procedure filed by the present petitioner and two other persons viz., Mohammed Raheemunnisa, Ghousia and Kareemulla Mujakkir. The learned Magistrate allowed the petition and awarded maintenance to two other persons, but rejected it in regard to one petitioner in the Trial Court. The rate of maintenance allowed was Rs. 200/- per mensem to petitioner No. 2 and at the rate of Rs. 150/- per mensem to petitioner No. 3 who is the present revision petitioner. The matter was taken in revision before the learned Sessions Judge whb while allowing the petition of the respondent rejected the maintenance claimed and granted in regard to the present petitioner.

The correctness, legality and propriety of the order of the learned Sessions Judge stand challenged on several grounds. It is contended that there was no justification for the learned Sessions Judge to reverse the well considered order of the Trial Court, that the reasons given by the learned Sessions Judge are not convincing that the Sessions Judge had no reason to reject the evidence of the petitioner that he was born within 9 months from 6.8.87 when his parents separated, that the reasons of the learned Sessions Judge are not base on evidence that the learned Sessions Judge threw the burden of proving the date of birth of the petitioner on him and it is finally contended that the order of the Sessions Judge cannot be maintained whereas the order of the learned Magistrate deserves to be restored.

The petitioner No. 1 Mohammed Raheemunnisa was the legally wedded wife of respondent No. 1 Mohammed Iqbal Pasha. Petitioner No. 2 Kareemulla Mujakkir in the maintenance petition, is the son born to Mohammed Raheemunnisa and respondent No. 1. Claiming that petitioner No. 3 Abdul Khader Munawar in the maintenance petition, who is the petitioner in this case, was refused and neglected to maintain along with others, the original petition for maintainance was filed.

Respondent No. 1 denying the allegations of refusal and neglect to maintain his wife and the son Kareemulla Mujakkir, he denied that the present petitioner is his son, as he was born subsequent to the date of severance of the status of husband and wife between him and Raheemunnisa. Respondent No. 1 also raised several contentions and in particular challenged the right of the petitioners in the petition to claim the maintenance at any rate much less the rate claimed by them. The learned Magistrate after holding an enquiry into the controversy between the parties, came to the conclusion that the present petitioner is the legitimate son born to Raheemunnisa and respondent No. 1 born out of their lawful wedlock. He also held that respondent No. 1 had refused and neglected to maintain the petitioners in the Trial Court However, in view of the divorce and the separation of Raheemunnisa and respondent No. 1 on 14.8.87 and in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986), no relief was granted to Raheemunnisa, whereas he ordered maintenance in favour of the children of the respondent No. 1, including the present petitioner at the rate stated supra. In the revision proceedings the learned Sessions Judge while confirming the finding of the learned Magistrate regarding the rights of the two petitioners viz,. Raheemunnisa and Kareemulla Mujakkir disbelieved the evidence of the petitioners about the legitimacy of the present petitioner to have been borne out of the lawful wedlock of Raheemunnisa and respondent No. 1 and came to the conclusion that the finding of the learned Magistrate in this regard is wrong and consequently allowed the revision petition of respondent No. 1 and set aside the order of the learned Magistrate.

In this revision petition, we are only concerned in examining whether the order of the learned Sessions Judge setting aside the order of the learned Magistrate is justified either on facts or in law, in interfering with the order of the learned Magistrate directing the payment of maintenance to the petitioner by respondent No. 1. From the evidence and the finding of the learned Magistrate which is not challenged, it is apparent that Raheemunnisa the mother of the petitioner and respondent No. 1 her husband, lived together as husband and wife till 14.9.1987 when he admittedly divorced her by pronouncing Talaq in the presence of the elders wherein Mehr amount of Rs. 2,525/- and also maintenance during the period of Iddat was fixed at the rate of Rs. 100/- per mensem. It is also held that petitioner No. 2 Kareemulla Mujakkir was born to them on 2.8.86 while they were still continuing in the legitimate relationship of husband and wife. P.W. 1 is the mother of the petitioner and P.W. 2 is her father. On behalf of the petitioners in the Trial Court, evidence was produced in support of their stand that the present petitioner was born on 7.4.88. It appears from the evidence on behalf of the petitioners and in particular P.Ws. 1 and 2 that the mother of the petitioner-Mohammed Raheemunnisa was pregnant when she was sent home to her parents'' house on 14.9.87 after pronouncing Talaq. Accepting such an evidence, the learned Magistrate has come to the conclusion that since the present petitioner was born within 9 months of the gestation period after the date of divorce, he must be accepted to be the legitimate son of Raheemunnisa and respondent No. 1. The learned Sessions Judge by re-assessing the evidence in the case has come to the conclusion that the date of birth of the present petitioner is not at all proved on behalf of the petitioner as stated by them and the witnesses P.Ws. 1 and 2; and under the circumstances in which the husband and wife separated, it is difficult to believe that the petitioner was born within the gestation period. The evidence of P.W. 1 the mother of the petitioner bears out that while she was with respondent No. 1, she was being insulted by the parents of her husband and sister-in-law, she tolerated them since she got first child and in the meanwhile, she became pregnant again and that is how, the present petitioner was born. During the last stages of the pregnancy it appears that she went to her parents house for delivery and in the meanwhile they separated by pronouncing Talaq. P.W. 2 her father corroborated her testimony in this regard. According to him, the present petitioner was born to them. The learned Sessions Judge found the evidence to be contradictory regarding the manner in which the mother of the petitioner was sent to her parents house and the circumstances under which the petitioner was born. He has further stated that except the testimony of P.Ws. 1 and 2, the petitioner and her father, there is no documentary evidence in regard to the proof of the date of birth of the petitioner and the hospital records are not produced, and in view of the denial of the legitimacy of the same by respondent No. 1, the proof of legitimacy cannot be accepted. On a careful consideration of the reasons given by the learned Magistrate and that of the learned Sessions Judge, this Court feels that the former are more convincing than the latter, in view of the evidence produced in the case.

The best person to state about the birth of a child is the mother because that will be the positive evidence. Such evidence has been corroborated by P.W. 2 the father of P.W. 1 who had the occasion and reason to know about it, since the child was born in his place. It is true that the documentary evidence displaces oral evidence and would be better in its expression for appreciation and acceptance. But the documentary evidence is not always warranted when a fact is possible to be proved by oral evidence. The learned Sessions Judge has pointed out that P.W. 2 worked in P.W. Department for 29 years and his son is working as Assistant in R.T.O.''s office and therefore, if the present petitioner was born in a hospital, they would have taken care to obtain some records from the hospital authorities and they would have got municipal records in proof of the date of birth of the petitioner. That appears to be a total imagination and a surmise to presume that there were records either in the hospital or in the municipality in regard to the proof of the birth of the petitioner on 7.4.1988. It was easy for the respondent No. 1 and his witnesses to deny what the mother of the petitioner or her own father deposed in regard to his birth in spite of their personal knowledge about it. Since the petitioner in the Trial Court produced positive evidence regarding the date of birth of the present petitioner, it was for respondent No. 1 to verify either from the hospital or from the municipality or elsewhere and to produce some evidence to disprove the same. In regard to the probability in the evidence of the petitioners in the Trial Court, the learned Magistrate has given very convincing and cogent reasons in para 32 of his order based on evidence. In particular it is pointed out that the divorce or Talaq given by respondent No. 1 to his wife Md. Raheemunnisa was not on the ground of her questioned character or unchastity, but it was on some other reasons like her adamant attitude, quarrelsome nature, etc.

The learned Sessions Judge has not even adverted to such a strong circumstance in favour of the petitioner''s mother and respondent No. 1 having no reason to avoid the access till the date his mother was sent away to her parents house and till Talaq was pronounced. The learned Sessions Judge appears to have taken certain minor contradictions in the testimony of P.Ws. 1 and 2 to hold the legitimacy against the petitioner. Therefore, the appreciation of the evidence in the case as between the learned Magistrate and the learned Sessions Judge, the former appears to be more satisfactory than the latter.

It was rightly contended on behalf of the petitioner that under the circumstances and having due regard to the admitted relationship between the petitioner''s mother and respondent No. 1 and having due regard to die probability that the petitioner was born within the period of gestation from the date of pronouncement of Talaq, the learned Sessions Judge was in error in throwing the burden of proving the legtimacy on the petitioners, therein. It is surprising that the learned Sessions Judge has not even adverted to the law relating to burden of proof in such a case by virtue of Section 112 of the Evidence Act. It is nobody''s case that respondent No. 1 had no access to his wife viz., the mother of the petitioner at least till the Talaq was pronounced and she went to her parents house. The law appears to be that the burden of showing that the parties to the marriage had no access to each other, is on the person who challenges the legitimacy of a child. In this case, it was on the respondent No. 1. It appears that the legal implication of Section 112 of the Evidence Act regarding access or non-access is not actual physical access, but mere opportunity to have access. The law appears to go to the extent of pronouncing that in the absence of evidence of non-access, the child must be deemed to be legitimate even though, the wife was living apart and leading an unchaste life. The law is beyond dispute that the legitimacy being the rule of procedure is applicable to Mohammedans also and Section 112 of the Evidence Act applies to all classes of persons in the country and no exception is made in favour of Muslims. Based on the precedents settling the legal principles, this Court had the occasion to conclude as above in a latest pronouncement in Bodananu Khadaraiah v. Badrapu Siddaruna, A.S. No. 911/82, dated 2.9.94. In view of the conclusive proof of legitimacy of a child born during the continuance of a marriage in the absence of proof of no access, the petitioner was entitled to the benefit of Section 112 of the Evidence Act.

If the learned Sessions Judge had examined the evidence in the light of Section 112 of the Evidence Act, the only legal inference would have been in favour of legitimacy of the petitioner. Admittedly, the mother of the petitioner and respondent No. 1 lived together till 6.8.87. On behalf of the petitioner, some evidence was produced to show that the petitioner was born on 7.4.88 which was within gestation period from 6.8.87. Wisely enough and in view of the gynaecological science, Section 112 of the Evidence Act contemplated the duration of pregnancy of 280 days or 9 months and 10 days. Therefore, the maximum outer period of the pregnancy or gestation in case of the petitioner should have been till 21st June, 1988. In such a situation it was possible for the respondent No. 1 to inquire and produce evidence to show that the petitioner was born after June, 1988 to put him out of the period of gestation and the evidence u/s 112 of the Evidence Act. Even then both the science and law in regard to period of gestation appears to be something different. Two hundred and eighty days as the possible duration of pregnancy appears to be not an invariable rule. Actually it may be more and in several cases, the birth could be beyond that period. Although fertilization generally takes place at the time of coitus, there will be some interval between insemination and fertilization when the sperm during its journey meets the ovum. The medical evidence appears to be that such interval may be as long as 21 days. The child born after 305 to 346 days after the last sexual intercourse or the access for sexual intercourse has been held to be legitimate, having due regard to the facts and circumstances of particular cases (page 1017 of Sarkar on Evidence, 13th Edn.). From the posssibility that the child was born on 7.4.88 pushing back the minimum period of gestation from 7 to 9 months, the petitioner was definitely born to the mother of the petitioner-Md. Raheemunnisa and respondent No. 1-Md. Iqbal Pasha, while they are till husband and wife and his legitimacy is thus conclusively established. The learned Sessions Judge has totally ignored these facts and circumstances and also the settled legal principles and landed himself into a total error leading to injustice to the petitioner. The finding of the learned Sessions Judge is not only incorrect and improper and the ultimate order in denying the maintenance by allowing the appeal of respondent No. 1, would be total illegal and deserves to be interfered with by this Court in this revision case.

The Revision Petition is allowed. The order of the learned Sessions Judge is set aside. The order of the learned Magistrate is restored. The respondent No. 1 shall pay the costs of the petitioner throughout. The petitioner shall be entitled to recover and draw all the amounts deposited in Court.