Rajesh Kumar vs Suresh Kumar

Dev Darshan Sud, J.—The Petitioner challenges the order of maintenance u/s 125 of the Code of Criminal Procedure, (hereinafter referred to as the `Code'') filed by Respondent Suresh Kumar.

The application was resisted by the Petitioner herein on the ground that a valid and subsisting marriage was not proved with Smt. Jinda Devi, mother of the Respondent. She died during the pendency of proceedings before the learned trial Court and her name was deleted from the array of parties. On the evidence and pleadings of the parties, three questions were framed by learned trial Court, namely, as to whether Respondent was entitled to monthly maintenance on the facts pleaded, whether the petition is maintainable and the quantum of maintenance.

At the time when the petition was tried, the Respondent was aged only about 12 years and was questioned by the Court to ascertain as to whether he understood the import of the evidence which he was swearing before the Court. On being satisfied that he understood the nature of the proceedings and meaning of giving testimony on oath, he was allowed to testify. The Respondent has stated that he along with his mother, Smt. Jinda Devi, had been living in Naldehra and the Petitioner herein was looking after them being elder member of the family and had been incurring expenditure for the daily necessities including the studies of the Respondent. At the time when his statement was recorded he stated that he was living with his aunt Bindu, who is the sister of his mother.

PW-2. Smt. Bindu Devi, stated that her sister late Smt. Jinda Devi, fell in love with the Respondent (Petitioner herein) and they got married. The Respondent bought clothes and ornaments etc. for her and lived as husband and wife happily. The Respondent also produced evidence to establish that he was never married and that there was no question of providing maintenance to the Petitioner (Respondent herein). The case at best when considered and even accepting that he was never married Smt. Jinda Devi was allegation of illegitimacy of the Respondent. Even if that be accepted, (which I am not doing so in the present case) Section 125 of the Code is clear that even an illegitimate child has to be maintained. There is no denying the fact that the Petitioner herein had open access to Smt. Jinda Devi and that the Respondent was born to both of them. This stand is established from the facts on record which are based on sound appreciation of evidence. The evidence having been thoroughly considered by the learned trial Court, I do not deem it to be an appropriate case for interfering in this revision petition which is dismissed. There shall be no order as to costs.