Girish Ch. Medhi vs Kalpana Medhi

P.G. Agarwal, J.—Heard Mr. P. Upadhyay, learned Counsel for the Petitioner and Ms B. Bhuyan, learned Counsel for the Respondent.

Respondent Kalpana Medhi filed an application u/s 125, Code of Criminal Procedure, being Misc. Case No. 209/97 before the Chief Judicial Magistrate, Nalbari stating interalia that she is the legally married wife of the Petitioner Girish Medhi and they lived as husband and wife and she gave birth to a female child on 5.9.97. However, she was driven out from the husband''s house while she was carrying pregnancy and the husband refused maintenance to her and her child. Petitioner contested the proceeding denying all the allegations of marriage and paternity of the child. After recording the evidence learned Chief Judicial Magistrate vide order dated 23.3.99 refused to grant maintenance whereby the Respondent preferred CM. Case No. 16/99 before the Sessions Judge, Nalbari. Vide impugned judgment dated 8.10.99 learned Sessions Judge refused to grant maintenance to the wife; but directed the Petitioner to pay maintenance to her illegitimate child. Hence the present '' revision by the Petitioner father.

Learned Counsel for the Petitioner submits that there is no evidence on record that the daughter was born to Kalpana through the Petitioner. Learned Sessions Judge has quoted the evidence of the Respondent 1st party and I have perused the evidence on record, wherein the Respondent has categorically stated that she had sexual relationship with the Petitioner prior to the marriage and thereafter the marriage was solemnised before the Sub-Registrar and subsequently before the villagers. They lived as husband and wife and while she was under pregnancy, she was driven out. It seems that the learned Chief Judicial Magistrate failed to appropriate the evidence on the point and as such the learned Sessions Judge in view of the materials on record granted maintenance to the minor child. Therefore, the submission of the learned Counsel for the Petitioner that the finding is not supported or based on evidence on record has got no force.

Learned Counsel for the Petitioner further submits that in order to grant maintenance to the child, paternity must be established and the burden is on the mother to establish the same and no maintenance can be granted without conclusive proof regarding the paternity of the child. In order to support the same, learned Counsel for the Petitioner has referred to a decision of this Court in a case reported in (1986) 1 GLR 167 and a decision of the Orissa High Court in the case of Ahalya Bariha v. Chhelia Padhan reported in 2 1992 CCR 1670.

In the case of the Rathiram v. Barbora reported in (1971) 4 SCC 923 the Apex Court had observed that Section 125, Code of Criminal Procedure does not finally determine the status, rights and obligations of the parties and the decision of the criminal Court docs not operate as a decision as in a civil proceeding. In a later case in the case of Smt. Dukhtar Jahan Vs. Mohammed Farooq, the Apex Court observed that in exercise of power u/s 482, Code of Criminal Procedure, the High Court should sustain the order of maintenance and direct the husband to seek declaration in a civil Court that the child was not born through him and as such he is not legally liable to maintain it.

The following observations of the Apex Court in the case of Kirtikant D. Vadodaria Vs. State of Gujarat and Another, may be reproduced :

While dealing with the ambit and scope of the provision contained in Section 125 of the code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation. Having regard to this special object the provisions of Section 125 of the Code have to be given a liberal construction to fulfil and achieve this intention of the legislature.

In Dwarika Prasad Satpathy Vs. Bidyut Praya Dixit and Another, the Apex Court had the occasion to consider all its earlier decisions in the matter and laid down guidelines in the matter of standard of proof in a proceeding u/s 125, Code of Criminal Procedure.

In view of the foregoing discussions, the order granting maintenance to the illegitimate child on the basis of the evidence on record need not be interfered in this revision petition. The revision Petitioner shall continue to pay maintenance as ordered by the Court below. Petitioner will be at liberty to approach the civil Court for relief, if any and till the declaration by such civil Court that the child was not born through the Petitioner, he shall be liable to maintain.

In the result, the revision petition stands dismissed. Interim order, if any, stands vacated. Send down the records.