Kalpana Chakravaty and Another vs Milan Kumar Bhaduri

B.L. Hansaria, J.—The suit out of which this appeal arises is an off-shoot, of a proceeding which was initiated against the Plaintiff-Respondent u/s 488, Code of Criminal Procedure, on 30.10.72. In that proceeding, Appellant No. 1 had claimed maintenance from the Plaintiff for a male child born on 3.9.72 on the allegation that she had conceived the child in the course of an illicit sexual intercourse with the Plaintiff. The learned Magistrate being satisfied that the child, who was impleaded as Defendant No. 2 in the suit, was the legitimate issue of the Plaintiff awarded a month sum of Rs. 75/- for the maintenance of the child. The Plaintiff did not get any relief by approaching the learned Sessions Judge at well as this Court in revision. The present suit came to be filed thereafter in which the Plaintiff preyed for declaration that Defendant No. 2 was not a child begotten through the Plaintiff and that the Defendants be restrained by permanent injunction to execute the aforesaid order of maintenance. Defendant No. 1 challenged the jurisdiction of the Civil Court in entertaining the suit and stated that the suit was not maintainable. Averments in the plaint were also denied.

The learned trial court decreed the suit in its entirety. On appeal being preferred, the learned Assistant District Judge upheld the decree declaring the Plaintiff tot to be the father of the Defendant No. 2, but dismissed the suit in so far as it related to the prayer of permanent injunction.

The Defendants are the Appellants before this Court. In assailing the impugned judgment, Shri D.N. Choudhury has advanced three submissions: (1) the Civil Court''s jurisdiction in the matter was barred; (2) the Plaintiff not having asked for the declaration that the order of maintenance was had in the eye of law, the suit was bit by Section 34 of the Specific Relief Act; and (3) the finding arrived at by the learned court below that Defendant No. 1 had not conceived the child through the Plaintiff is unreasonable and has been arrived at by placing wrong onus and by misreading relevant evidence, and as such is not maintainable.

In so far as the question of jurisdiction is concerned, the contention of Shri Choudhari is that the right to claret maintenance having flowed from Section 488 Code of Criminal Procedure remedy provided for in the Code alone can be resorted to by an aggrieved person and no other forum would be available for this purpose. support of this submission reliance has principally been placed on the The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, This decision has referred with approval to Burraclough v. Brown 1597 AC 615. That caw had dealt with a special statute which had given a right to recover expenses in a court of Summary Jurisdiction from a person who was not otherwise liable at common law. It was held by the House of Lords that there was no right to go to the High Court for a declaration that the Appellant had a light to recover the expenses in a court of Summary Jurisdiction, the person concerned could take proceeding only in the latter Court, Lord Watson had put the matter than:

The right and the remedy are given uno fiatu, and the one cannot be dissociated from the Other.

After adverting to other decisions on the point the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute was summarised in para 23 of the aforesaid judgment. The one which is pressed into service by Shri Choudhury is point No. 3 which reads:

If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to tee suitor is to get an adjudicateion under the Act.

Shri Choudhury contends that as the right to claim maintenance was conferred by Section 488 Code of Criminal Procedure, the remedies available to the parties have to be found within the four corners of the Code, and the doors of a Civil Court cannot be knocked for this purpose. We have, however, to remember that it is a settled principle that exclusion of jurisdiction of a Civil Court is not to be readily inferred, which principle has been taken notice of by Premier Automobiles (supra), also. Reference may be made here to Section 9 of the Code of Civil Procedure, which states that a Court has jurisdiction to try all suits of civil nature excepting those of which cognizance is either expressly or impliedly barred. There are a catena of cases of the Apex Court dealing with this aspect of the matter. It shall be sufficient to refer to Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, whore the Court after noting various pronouncements on this subject laid down seven principles in para 32 rega, According exclusion of jurisdiction of Civil Court. Of these principles, (1) and (2) are relevant for our purpose which read as below:

(1) Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of Judicial procedure.

(2) Where there in an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the- inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.

Reference to section 488, Code of Criminal Procedure, and the related provisions which had pound place in Chapter XXXVI of the old Code of Criminal Procedure shows that the order of the criminal Court has not been specifically made final. It may be stated that similar is the position in the new Code wherein Sections 125 to 128 finding place in Chapter-IX has dealt with the question of granting of maintenance to wives, children and parents. What is more important to paint out is that far from there being an express bar to the jurisdiction of the Civil Court in a matter dealt by the aforesaid provisions of the Code of Criminal Procedure, Section 489(2) of the old Code, as well as Section 127(2) of the new Code, clearly permits approach to Civil Court inasmuch as these provisions have stated that where it appear as to the Magistrate that "in consequence of a decision of any competent Civil Court" any order of maintenance "should be cancel'' led or varied, he shall cancel the order or, as the Case may be, vary the same accordingly.

This being the position, it cannot be held that Civil Court has no jurisdiction in a case of the present nature. I may not labour on this point more, in view of the decision in S. Sethuroihinom v. Barabarn Dolly 1970 UJ (SC) 505 wherein the Supreme Court had been approached against an order of maintenance granted by the High Court of Madras after letting aside the order of the Magistrate refusing Maintenance order wider Section 488 Code of Criminal Procedure inter alia because the marriage in question was not proved. According to the High Court, however, the marriage between the parties was valid The Supreme Court having been informed that a civil suit had been filed for decision on the factum and validity of marriage, observed as below in para 3:

We do not think it necessary in this case to decide the case on merits. The order passed in an application filed u/s 488 of the Code of Criminal Procedure is a summery order which does not finally determine the rights and obligations of the parties thereto, It is an order made in a proceeding under a provision enacted with a view to provide a summitry remedy for providing maintenance, and for preventing vagrancy. The decision of the criminal court that there was a marriage between Barabara and Sethuralliam and that it was a valid marriage will not operate as decisive in any civil proceeding between the parties for determining these questions.

Not only this, on being submitted that the impugned order was bound to influence the judgment of the Civil Court, the Apex Court observed that" the Civil Court in hearing the proceeding...will decide it on the evidence which may be produced before the Court uninfluenced by the decision of the High Court as to the factum of the ceremony of marriage....

It may be stated hero that though tae question relating to the jurisdiction of the Civil Court had not come up for examination in the above case, that is not material, as, what is binding under Article 141 of the Constitution is the law declared by the Supreme Court. For this purpose it is the ratio of the decision which matters, and not the reasons therefor. I may refer here to. Fuzlunbi Vs. K. Khader Vali and Another, wherein after noting that the interpretation of Section 127(3)(b) Code of Criminal Procedure. the Supreme Court in Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, had not been Followed by the High Court, it was stated in para 7 that:

no judge in India except a larger bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio thereof.

(Emphasis mine)

A decision of the Apex Court does not lose its authority because of the mere fact that some relevant provisions were not brought to the notice of the Court, as pointed in para 4 of Ballabhadas Mathurdas Lakhani and Others Vs. Municipal Committee, Malkapur,

It may be of some interest to state here that as early as 1907, the Madras High Court had also held in Deraje v. Marati ILR 30 Madras 400 that in such cases civil courts'' jurisdiction is not taken away, as a suit of the present nature is really not to set aside the order of Magistrate, and so the suit which was filed after the first Defendant had obtained an order of maintenance u/s 488, claiming a declaration that the fine Defendant was not the wife of the Plaintiff and the second Defendant not his son was held as maintainable.

As to the decision in Smt. Gauri Devi Vs. Bishwanath Banerjee, noted by the learned Assistant District Judge, I would first like to state that the view taken in that case that an order of the Magistrate u/s 488 could be challenged on the ground of fraud has to be received with reservation inasmuch as a suit of the present nature is not one for getting declared the order of the Magistrate set aside (as accepted by the learned Judge), but really is for getting declaration of the status of the person in question as accepted in Deraje (supra)" with which view, I am in respectful agreement because (1) this would be more in consonance with the notion of comity which exists between civil and criminal courts, (2) the suit would then really come within the fold of Section 34 of the Specific Relief Act, 1963, hereinafter the Act, and (3) would fit in better with what has been stated by the Supreme Court in Sethurathinam (supra).

Secondly, in Gauri Devi the learned Judge did not fully examine the question of exclusion of civil court''s jurisdiction in the light of observations made in Firm of Firm and Illuri Subbayya Chetty and Sons Vs. The State of Andhra Pradesh, which was noted by the Court along with two other decisions: Nafess Ara v. Asif AIR 1963 All. 193, and Jahnson v. Sarasamma AIR 1956 T&C 204 upholding the jurisdiction of the Civil Court In such a matter) because the order before it having been challenged on the ground of fraud, the learned Judge felt satisfied about the jurisdiction of Civil Court at, according to him, in order of maintenance obtained by playing fraud upon the Court could always be questioned by way of a suit as that order affects the right of the parties relating to status, money and property.

In view of what has been stated above, it cannot he held that the jurisdiction of the Civil Court was barred. This takes us to the second contention advanced by Shri Chodhuri which is about the suit being not maintainable on the ground that the Plaintiff had rot asked for a declaration that the order u/s 488 Code of Criminal Procedure was had in the eye of law. The question of maintainability has been raised because the proviso to Section 34 of the Act states that the Court shall Dot make any declaration where the Plaintiff, being able to seek a further relief than a mere declaration of title, omits to do so .

In support of this part of his submission, Shri Choudhury has referred to M.K. Rappal v. Jhon 1969 (2) SCC 550 and Ram Saran v. Ganya Devi AIR 1972 SC 2693 . These cases are not very relevant as they had dealt with this matter in be context of the Plaintiff not having asked for possession in a suit for declaration of his right over the property in question. The case more to the point is Jugraj Singh and Another Vs. Jaswant Singh and Others, wherein the Plaintiff had sued for declaration that the Defendants are neither owners of land nor they have got the right to get the tame as per certain order of the Sub-Divisional Officer, but had neither asked for cancellation of the order, nor for any injunction. Such a suit was held to be hit by the aforesaid proviso. In the present case, the Plaintiff did ask for an injunction. Of course, the learned Assistant District Judge, has refused this prayer became, according to him, Section 4(d) of the Act did not permit granting of this prayer. Whether the prayer of Injunction was rightly refused or not, needs no determination In this case because no objection has been taken for disallowing of this prayer. It may, however, be pointed out that in a suit of the present nature, Civil Court cannot grant in iujunction restraining the Magistrate from enforcing the order of maintenance: what is permissible is for the Plaintiff to ask the Magistrate to abstain from giving further affect to his order after the Civil Court has decided in favour of the former. Section 489(2) of the old Code and Section 127(2) of the new Code permit the Plaintiff to do so. This was the view first expressed in Mohd. Abid Ali v. Ludden ILR (1887) Cal 276, which decision was followed in Deraja (supra); Maddu v. Kamireddi ILR (1923) Mad 721 and U. Arzeina v. Ma Kyin AIR 1940 Rang 298.

What remains for consideration is the third submission of Shri Choudhury which is that the finding in question is unreasonable and has been arrived at inter alia, by misreading, the relevant evidence. To appreciate this, let it be first seen what the learned Assistant District Judge has to say about the evidence led by the Plaintiff:

This survey of the Plaintiff''s evidence inclines me to the strong impression that the Plaintiff has tried in vain to shake off his acquaintance, familiarity and perhaps intimacy with Defendant No. 1 like a hot potato. It would further appear that be had all the opportunity to commit what is alleged to have been committed by him on Kalpana.

After having stated thus, It was observed that the Plaintiff had in fact been placed in an unhappy position of having to prove a negative, and the learned court below then went into the evidence of Defendant No. 1 Kalpana and other witnesses to find out if she had been able to establish who was the father of Defendant No. 2, as she alone could have had special knowledge regarding the matter. The case of the Defendants was ultimately rejected mainly on the ground that all the four acts of sexual intercourse between the parties had taken place before Durga Puja (of 1971) whereas the child had been born on 3.9.72. According to the learned Assistant District Judge, as the Doctor (P.W. 1) had opined that the conception in the present case had taken place sometime in December 1971, it was held that Defendant No. 2 could not have been conceived through the Plaintiff as Durga Puja tekes place either in the month of September or October, as observed by the learned trial Court.

I have checked this Court''s Calendar of 1971 and I find that in that year the Durga Puja was from September 27th to 30th September, Shri Choudhari however, submits that learned Assistant District Judge had misread the evidence both P.W. 1 P.W. 2 in having stated that all the acts of intercourse had taken place "before Durga Puja". and that the conception, according to the doctor had taken place sometime in December, 1971. A reference to the evidence of D.W. 1 shows that according to her out of the four acts of coitus, three (1) during the time of Jatra Can, (2) when she had been called to powder spice in the house of the Plaintiff; and (3) when her father had given a new dress had taken place before Durga Puja. But the fourth act was during Puja. What P.W. 2 had deposed in examination-in-chief was relating to some factual matters connected with his examination of Kalpana in 1972 when the witness was a doctor in Dhipdhepi State Dispensary. According to this part of the evidence, on 5.5.72 Kalpana had stated about irregular menses. On 8.5.72 Kalpana came again and on examination it was found to be a ease of stoppage of menstruation. On 10.5.72, a note was made in the register of the dispensary that her was a case of suspected pregnancy. In cross-examination the witness stated that normally it is taken that one conceives within 7 days of the last menstruation, and that if the child was born on 3 9.72, conception ought to have been on 3 12.71. So, what P.W. 2 had deposed was about what is normally taken according to him, to be the date of conception.

But then a reference to Standard books on Medical Jurisprudence shows that there conduct be any rule of thumb regarding the period of gestation. In Modi''s Medical Jurisprudence and Toxicology, the learned author while dealing with the subject of "The Maximum Period of Pregnancy" has stated at pages 326 and 327 (20th Edition) that in the divorce case of Gaskill v. Gabson the Lord Chancellor had accepted 331 days as a period of protracted gestation. It bet been further opted that from very careful investigations carried on 15,629 births, Mckeown and Gibson had found that the longest period of gestation were 319, 320, 321, 325 and 323 days. In two cases the period of gestation was reliably thought to be 339 and 359 days, respectively. These investigators had concluded that for medico-legal purposes, approved of 354 days from coitus to the birth is not impassible. On the other hand, the House of Lord by a majority had allowed the appeal of the habited Who had brought a divorce suit on the ground that a baby born after 360 days after the possible date of conception was not his chilld. In Taylor''s "Principle of Medical Jurisprudence" it has been stated at page 37 of Volume-II (11th Edition) that a period of 331 days was not regarded as impossible in the state of knowledge prevailing when Gaskell''s case (1921). 425 was decided. In Wood v. Wood 1947 (2) All ER 95, the Divisional Court took the same view of a period of 346 days without the assistance of doctor. Hadlum v. Hadlum (1948) 2 All ER 412, raised this period to 349 days. Limit had, of course, to be set and in Preston-Jones v. Preston Jones 1951 (1) All ER 124, a period of 360 days was ultimately rejected in this regard by a majority of four to one in the House of Lords.

In the present case, if the date of birth is counted from the last coitus, which was during Durga Puja of 1971 (27th September to 30th), the delivery of child was within 339 to 342 days. The finding that the child could not have been conceived through the Plaintiff cannot, therefore, be held to in consonance with the correct medico-legal position.

It may be stated before proceeding further that the aforesaid medical views had come to my notice while preparing the judgment after the hearing was once over, it was deemed apropriate by me that the learned Counsel for both the sides should be apprised of the aforesaid medico-legal position to enable then to mike their sub-missions in this regard. The case was accordingly heard further on 24.1.86.

Shri Sarma''s sole submission on this score was that as this Court is in seisin of the case in second appeal, the finding that the child was not conceived through the Plaintiff cannot be disturbed, even if the same be grossy erroneous or Inexcusable. He referred in this connection to D. Pattabhiramaswamy v. S. Hanyamayya AIR 1959 SC 57 ; Bholaram Vs. Ameerchand, and E. Mahboob Saheb Vs. N. Sabbarayan Chowdhary and Others, These decisions would bear the submission of Shri Sarma only partially, as a finding based on a clear error of law, or an unreasonable finding can be set aside even by a second appellate court as stated in Bhola Ram and Mahbaob (supra). This is not all. The cases cited by Kakumanu Peda Subbayya and Another Vs. Kakumanu Akkamma and Another, R. Ramachandran Ayyar Vs. Ramalingam Chettiar, ; Gurbaksh Singh Vs. Nikka Singh, ; Sonawati and Others Vs. Sri Ram and Another, and 1970 JLJ 66 (SC) have further laid down that a finding of fact can be interfered in second appeal where, inter alia, the lower Court had misunderstood the real point for determination, or where a wrong onus was placed on the party, or a finding has been arrived at without considering the impact of relevant provisions of law or by ignoring important evidence on record, or where some vital evidence was left out on a wrong appreciation of the legal position.

The above shows that a finding of fact arrived at by a first appellate Court is fortified, but is not fully impregnable; though it is not easily assailable, but is not untouchable. I am of the view that if a finding is arrived at by misreading evidence, the same shall meet its sad end even in second appeal. So also, if a finding like the one at hand is based on misconception of true medico legal position, the same would be amenable to interference even in second appeal, because such a finding has to be viewed as unreasonable.

In the present case the evidence of D.W. 1 was misread, as according to the learned Assistant District Judge all the four acts of coitus (as per the witness) had taken place before Durga Puja, whereas her correct evidence is that of the four such acts, three (of which details have been given above) were before Durga Paja and one was during the Puja. This makes and big difference for the case at hand, as the birth of the child was between 339 to 342 days of coitus taking place during the Puja: and this length of time is within the period of gestation accepted as possible in the medical world. This apart, the rejection of the case of the Defendant on the ground that the conception of the child had taken place in December 1971 is based on misconception of the true medico legal position because of what has been (Sic)ed by Modi and Taylor in their well-known works of medical jurisprudence-the crux of which has been noted above; and to this finding against the Defendants has to be regarded a unreasonable, as any person duly instructed and posted with the correct medical opinion would not have arrived at the same it may be stated here that P.W. 2 (relying on whose evidence the month of conception was taken as December 1971 by the Court below) had really not been examined as an expert in the ease, He had been produced to testify certain facts which had come to his knowledge on examining Kalpana in the State Dispensary in Question. Prom his evidence, he cannot also be taken to be an expert in the line. Further, what be had deposed was about normal understanding in this regard-he did not propose to lay down any inexorable rule, whereas the Court below took it to be so, which provides another instance of misreading of evidence. It may also be mentioned that opinion of experts are only relevant (see Section 45 of the Evidence Act); and a court may not rely on it by giving cogent reasons.

In view of all the above, I hold that the finding of the learned Assistant District Judge that it was "physiologically impassible that Defendant No. 2 would have been the product of" any of the intercourses between the Plaintiff and Defendant No. 2 cannot be sustained, and is therefore set aside, Then, as the learned Assistant District Judge himself has stated that the Plaintiff had " all the opportunity to commit what is alleged to have been committed by him on Kalpana", which finding has not been assailed before me, it is held that the case of the Plaintiff that Defendant No. 2 was not born through him cannot be accepted.

The appeal is, therefore, allowed. The impugned judgment and decree are set aside and the suit is dismissed. The parties are, however, left to bear their own costs throughout.

May I state before parting that in being able to come to the assistance of a poor illegitimate child in getting for it a monthly maintenance allowance of Rs. 75.00 from a person who tool, to business after giving up his teaching profession, this Court has upheld the cause of social justice as well, which in our constitutional setup demands protection of the weak, meek and neglected by all tine instrumentalities of the State.