Chaturbhuj vs Amar

T.P. Sharma, J.—This petition u/s 482 of the Code of Criminal Procedure is directed against the order dated 8-12-2004 passed by the 1st Additional Sessions Judge, Mahasamund in Criminal Revision No. 309/2003 reversing the order dated 19-6-2003 passed by the Judicial Magistrate First Class, Saraipali in Misc. Criminal Case No. 98/2002, whereby learned Judicial Magistrate First Class has dismissed the application for maintenance filed u/s 125 of the Code of Criminal Procedure by the Respondent. While reversing the order of the trial-Court, learned Additional Sessions Judge has allowed the petition on the ground that the Respondent is an illegitimate child of the Petitioner and awarded Rs. 700/- maintenance per month.

Order is challenged on the ground that without any prima facie evidence of long relation of the Petitioner with mother of the Respondent i.e. Vilasini or any factum of marriage, learned revisional Court has awarded maintenance and thereby committed illegality.

Brief facts leading to filing of this petition are that according to the case of the Respondent, mother of the Respondent namely Vilasini was having love affairs with the Petitioner and on the pretext of marriage, the Petitioner used to commit sexual intercourse with her and finally, the Petitioner has solemnized marriage with mother of the Respondent in a temple. She conceived as a result of physical relation with the Petitioner and when she requested the Petitioner for marriage, the Petitioner refused on which she lodged report against the Petitioner. Ultimately, sessions trial for the offence committed u/s 376 of the I.P.C. was tried and the Petitioner was acquitted of the charge. Mother of the Respondent delivered the Respondent. The Respondent tiled an application for maintenance as an illegitimate child of the Petitioner, through his mother. The Petitioner has contested the application. After affording opportunity of hearing, learned Judicial Magistrate First Class, Saraipali, dismissed the application for maintenance filed u/s 125 of the Code of Criminal Procedure. The present Respondent preferred a revision against the said order, the same was reversed and maintenance was granted vide the order impugned.

I have heard learned Counsel for the parties and perused the order impugned as also the records of the Courts below.

Learned Counsel for the Petitioner argued that mother of the Respondent has not married the Petitioner. This is not the case of long living together as husband and wife, even this is not the case of irregular or illegal marriage and this is not the case of monogamy. In absence of such material even in case of casual sexual intercourse, paternity for the purpose of award of maintenance cannot be fastened upon the Petitioner. Learned Counsel further submits that the Petitioner has not admitted any relation with mother of the Respondent, mother of the Respondent has failed to adduce any evidence to show that she was having long relation with the Petitioner and as a result of such long relation she conceived and gave birth to the present Respondent. Learned Counsel placed reliance in the matter of Khubchand v. Ayodhya 1987(1) MPWN Note No. 25 in which the M.P. High Court has held that the factum of parentage could be proved by resorting to appropriate action in the competent civil Court and not in a summary manner.

On the other hand, learned Counsel for the Respondent vehemently argued that the evidence adduced on behalf of the Respondent is sufficient for drawing inference that the Petitioner and mother of the Respondent were having physical relations for long time, as a result of such physical relations mother of the Respondent conceived and gave birth to the present Respondent and relation between mother of the Respondent and the Petitioner was not the one of monogamy sufficient for drawing inference that the Petitioner is father of the Respondent.

This is a petition u/s 482 of the Code of Criminal Procedure for exercising the inherent power. Exercise of power u/s 482 of the Code of Criminal Procedure in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

In order to appreciate the contentions of the parties and to examine legality and propriety of the findings of the Courts below, I have perused the statements of the witnesses adduced on behalf of the parties.

Mother of the Respondent Vilasini (AW-1) has examined herself and she has deposed in her evidence that present Respondent Amar is her son born through the present Petitioner. She has specifically deposed that she was having love affairs with the Petitioner and she used to meet the Petitioner. The Petitioner performed marriage with her in a temple. On his direction she used to visit his new house where he used to commit sexual intercourse with her and as a result of such sexual intercourse she conceived and gave birth to the present Respondent. When her pregnancy was about three months, she requested the Petitioner for marriage but he refused to marry her on which she convened the village meeting where the Petitioner refused to keep her with him, although she has specifically told the members of the meeting that she was having love affairs with the Petitioner. Thereafter, she lodged report against the Petitioner.

Punitram (AW-2) has deposed that on one day the Petitioner called mother of the Respondent in her shop, they went inside the room and closed the door, the Petitioner and mother of the Respondent were having relation. Ganda Rai (AW-3) has deposed that father of the Petitioner has told him to advise the Petitioner to keep mother of the Respondent with him, at that time, mother of the Respondent was pregnant. Nehru (AW-4) has also deposed relating to village meeting. He has deposed in his evidence that in the village meeting the Petitioner refused to keep mother of the Respondent with him. He has further deposed that there was talk in the village relating to relation between the Petitioner and mother of the Respondent and mother of the Respondent and the Petitioner used to meet.

The Petitioner has examined himself and has denied any relation with mother of the Respondent. His witnesses Raj Kumar Singh (NAW-2), Mangla (NAW-3) and Pyarelal (NAW-4) have also denied any relation of the Petitioner with mother of the Respondent.

In her cross-examination, mother of the Respondent has denied the suggestion that she was not having any relation with the Petitioner. Punitram (AW-2) has admitted in his cross-examination that he has seen the incident of one day. but other persons have seen both the persons. Ganda Rai (AW-3) has admitted that when father of the Petitioner has told him to advise the Petitioner to keep mother of the Respondent with him, case against the Petitioner was pending before the Court of Mahasamund. Likewise, Nehru (AW-4) has admitted in his cross-examination that he himself has not seen any relation between the Petitioner and mother of the Respondent but he has seen mother of the Respondent in the shop of the Petitioner several times for purchasing articles.

The Petitioner has not admitted any statement relating to relation with mother of the Respondent. He has also deposed that he is not having any knowledge about relation of mother of the Respondent with any other person. Other witnesses of the Petitioner have not substantially deposed in favour or against any party.

This is not the case of irregular, illegal or lawful marriage. This is not the case of living together for long time. But according to the case of mother of the Respondent, very often the Petitioner used to commit sexual intercourse with her and she conceived as a result of such sexual intercourse.

In the case of aforesaid kinds of allegations, mother of the alleged illegitimate child is required to prove the fact that relation between her and the Petitioner, the alleged father, is virtually one of monogamy and no second person was between her and the alleged father at the time of pregnancy.

Respondent''s witness Punitram (AW-2) has deposed about one occasion. Other witnesses Ganda Rai (AW-3) and Nehru (AW-4) have deposed that virtually they have not seen any relation or they are not having any personal knowledge of any relation, but the villagers know about the relation. The Respondent has not examined any other person to prove such knowledge. In the present case, mother of the Respondent was not residing with the Petitioner, but according to her statement she used to meet the Petitioner virtually without the knowledge of other persons.

On first occasion in a village meeting the Petitioner has not admitted any relation with mother of the Respondent and has refused relation with mother of the Respondent. Although mother of the illegitimate child is the best person to prove that as to who is father of the child, but her statement must be reliable and should be corroborated from independent sources. In the present case, the Respondent has not examined any person having personal knowledge of the facts. Statement of mother of the Respondent has not been admitted or supported by the Petitioner.

This is a summary proceeding u/s 125 of the Code of Criminal Procedure for award of maintenance to the illegitimate child which does not decide the final rights and claim of the parties, they are required to avail remedy before the appropriate forum. Evidence of mother of the Respondent and her witnesses is not sufficient to prove the fact of any relation of mother of the Respondent with the Petitioner or relation of such nature which can be termed as virtually one of monogamy. In absence of such evidence, award of maintenance by the revisional Court is not sustainable under the law and to secure the ends of justice it requires interference in exercise of inherent jurisdiction.

Consequently, the petition is allowed. Order impugned is hereby set aside and the maintenance awarded by the revisional Court is hereby quashed.