Fazal Ali (MD.) vs Swarupjan Begum (MUSTT.)

V.D. Gyani, J.—This revision petition is directed against the revisional order dated 23.8.90 passed by the learned Sessions Judge, Nalbari in Criminal Motion No. 4(N-1)/89, thereby confirming the grant of maintenance allowance to the Respondent wife and their minor son by the Magistrate, 1st Class, Nalbari vide order dated 31.12.88 passed in Misc. Case No. 7/87.

Placing reliance on Madhu Limaye Vs. The State of Maharashtra, learned Counsel appearing for the Petitioner contended that the present revision petition is maintainable in view of the fact that otherwise the Petitioner would be without any remedy.

It is significant to note that the instant case arose out of maintenance proceedings instituted a decade back in 1987, as is evident from the number of Misc. Case 7/87, wherein the order of panting maintenance was passed. Learned Counsel appearing for the petitioner is not in a position to make any statement as regards any payment made by the Petitioner to his minor son. It is a matter of common knowledge that currently our criminal Courts excel in slow motion and the motions become much slower when summary proceedings for grant of maintenance u/s 125 Code of Criminal Procedure are made a prestige issue. The parties going to any extent, so much so, even denying paternity of innocent minor children solely with a view to ward off the liability of payment of maintenance allowance which may eventually be granted. In the instant case, the Respondent wife has not been awarded any maintenance allowance. It was only for the minor son that an amount of Rs. 100/- per month was fixed as back as in 1988 and the order is stay remains a paper relief, in face of the interim order of stay passed on 14.9.90 which continues to be operative.

Adverting to the case relied upon by the learned Counsel for the Petitioner, the facts provided a contrast. A "press hand-out" issued by the Petitioner was considered to be defamatory and the then Law Minister of the Government of Maharashtra and the State Govt. decided to prosecute the Petitioner for alleged offence punishable u/s 500 IPC. It was this prosecution which was challenged by the petitioner Madhu Limaye. Learned Counsel has placed the following three principles, as laid down by the Supreme Court:

That the power is not to be resorted to if their is a specific provision in the Code for the redress of the grievance of the aggrieved party;

That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

The point that arose for consideration in Madhu Limaye''s case (supra) was that the sanction given by the Chief Secretary of the State Govt. for prosecution on behalf of the State, could not be construed as sanction accorded by the State Govt. and this point was turned down by the trial Court. A revision filed, was objected to on the ground that it was an interlocutory order and it was in this context that the Apex Court held that if a plea or objection raised by a party, when accepted will conclude the particular proceeding, it cannot be said to be an interlocutory order, and in that view of the matter, the petition was held to be entertainable. No such point in fact arises in the present petition, inasmuch as, it was never raised by either party, so much so, even before this Court not only the seeond revision, in face of the statutory bar contained in Section 397(3) was entertained and admitted but an interim order of stay was also granted on 14.9.90. The Petitioner cannot derive any support from Madhu Limaye''s case which turn on its own facts. In contrast, what is sought to be urged in the present petition is that the Courts below erred in not appreciating the statements made by witnesses as regard the age of the Petitioner and the statements relied upon are not the statements made in the present proceedings but in some other connected proceedings. When confronted with Section 145 of the Evidence Act, learned Counsel for the Petitioner submitted that the whole case racord was exhibited as East. "Ka". It does not fulfil the minimal requirement of probing a contradictions as required by Section 145 of the Evidence Act. Even then, taking the statements as urged by the learned Counsel on their face value, where does it lead? The crucial question was the age of the Petitioner. Discarding the rule of best evidence, without making any attempt of producing the reliable evidence, such as, Certificate of Date of Birth from the Registrar of Birth or from the Scholar Register, Admission Register of School, what has urged is go by the oral statement and determine the age of the Petitioner. As such, in a revision petition reappraisal of evidence is neither necessary nor desirable and this is the second revision petition against a revisional order. The age as stated by witnesses is merely a rough assessment or approximation of age or events, such as, marriage, birth etc. on their part. Relying on the same learned Counsel contended that the age of the Petitioner could not have been more than 7 or 8 years at the time when the Respondent-wife, alleges the cohabitation as claimed to have taken place. Without going into the merits, suffice it to say, that such statements do not provide a reliable basis for determining the age of either party. Legitimacy of a child when called in question, is to be viewed and considered in the light of the provisions as contained in Clause (c) of Sub-section (1) of Section 125. Even if it is assumed that the child is an illegitimate one. Clause (c) of Sub-section (1) of Section 125 provides for maintenance even in respect of illegitimate child. Learned Counsel urged that by foisting the paternity of child, the Petitioner''s social reputation is at stake. This is one side of the coin, the other side is the fate of the innocent child who has been denied his paternity, thereby denouncing him as a bastard in the society, that can also be not overlooked. By series of decisions, the Apex Court has in such proceedings not only allowed the grant of maintenance but also deprecated the practice in raising such pleas as in Smt. Dukhtar Jahan Vs. Mohammed Farooq, where maintenance granted to an illegitimate child was called in question. That apart in Sumitra Devi Vs. Bhikan Choudhary, the Supreme Court has sounded a word of caution as to what should be the role of lawyers in such proceedings, and what should be the role of Courts in dealing with such matters of maintenance either under the personal law or u/s 125 Code of Criminal Procedure. The following observations of the Apex Court can be quoted with advantage:

The role of the Court is not that of silent spectator or of a passive agency, when a dispute is brought before the Court, particularly one of the type with which we are concemed, where maintenance of a neglected wife or a minor child is in issue, the Court must take genuine interest to find out the truth of the matter... We must point out that it was the duty of the lawyer appearing for the Appellant also to have played his role properly at the right time. A lot of time has been lost and if the Appellant is entitled to maintenance she has been deprived of it for all these years.

Learned Counsel insisted for invoking the inherent powers of the Court u/s 482 Code of Criminal Procedure. Such powers cannot be invoked in face of the statutory bar contained u/s 39(3) Code of Criminal Procedure. If authorities are needed Rajan Kumar Machananda Vs. State of Karnataka, Dharam Pal Vs. State of Punjab, Deepti alias Arati Rai Vs. Akhil Rai and Others, (Deepti v. Akhil Rai, may be referred to.

In face of these judgments, the petition should have been dismissed at the threshold as not maintainable, but the indulgence is shown because of the stay order passed. The petition is dismissed.