Sant Kumar vs Neera Bai and Others

T.P. Sharma, J.—By this petition for invoking inherent jurisdiction, the applicant has challenged legality and propriety of the order dated 1 -10-2001 passed by the 2nd Additional Sessions Judge, Baloda Bazar in Criminal Revision No. 280/2001, affirming the order dated 11-5-2001 passed by the Judicial Magistrate First Class, Baloda Bazaar in Miscellaneous Criminal Case No. 107/95, whereby both the Courts below have awarded maintenance u/s 125 of the Code of Criminal Procedure, 1973 (for short ''the Code'') to non-applicant No. 3 Pappu.

The order is challenged on the ground that Pappu is neither legitimate child nor illegitimate child of the applicant and has begotten & born after non-applicant No. 1 left the matrimonial house, i.e., the residence of the applicant and there was no occasion of physical relation between the applicant & non-applicant No. 1.

I have heard learned Counsel for the parties, perused the petition and the orders impugned.

Vide order dated 11-5-2001 passed in Miscellaneous Criminal Case No. 107/95, the Judicial Magistrate First Class, Baloda Bazaar has awarded maintenance to the non-applicants u/s 125 of the Code. The applicant, who is father of non-applicant Nos. 2 and 3 and husband of non-applicant No. 1, has not challenged the order awarding maintenance to non-applicant Nos. 1 and 2, but has challenged the order awarding maintenance to non-applicant No. 3. After appreciating the evidence available on record, learned Judicial Magistrate First Class has awarded maintenance to all the non-applicants and the same was affirmed in criminal revision.

Learned Counsel for the applicant submitted that non-applicant No. 1 gave birth to non-applicant No. 3 after two years of leaving the house of the applicant and there was no occasion for any physical relation between the applicant and non-applicant No. 1. Non-applicant No. 1 herself has admitted in her evidence recorded on 7-1-97 that she had left the house of the applicant two years before her statement, and the birth certificate of non-applicant No. 3 shows that non-applicant No. 3 was born on 18-11-95. The applicant has specifically made allegation in his reply that non-applicant No. 3 is not legitimate or illegitimate child of the applicant and he is not liable for maintenance to non-applicant No. 3. However, the non-applicants have not adduced any evidence to establish that non-applicant No. 3 is the legitimate child of the applicant and even after leaving the house of the applicant by non-applicant No. 1 there was opportunity of access to each other at the time of alleged pregnancy of non-applicant No. 1 in relation to the birth of non-applicant No. 3.

On the other hand, learned Counsel for the non-applicants opposed the petition and submitted that the applicant & non-applicant No. 1 are legally wedded wife & husband, non-applicant No. 2 is daughter of the applicant and non-applicant No. 3 is son of the applicant. Non-applicant No. 3 came into existence and born during the subsistence of marriage of the applicant & non-applicant No. 1. There is presumption that non-applicant No. 3 is legitimate child of the applicant in accordance with Section 112 of the Indian Evidence Act, 1872. Learned Counsel further submitted that this is a summary proceeding to save minor children from destitution and vagrancy and the applicant may avail remedy before the Competent Civil Court, however, he is under obligation to maintain non-applicant No. 3. Learned Counsel placed reliance in the matter of Smt. Dukhtar Jahan Vs. Mohammed Farooq, , in which the Apex Court has held that child born within 7 months'' time after marriage is not sufficient for raising any presumption that child is not legitimate, refusal of maintenance to such child is not proper. Learned Counsel also submitted that at the time of reply to the application filed u/s 125 of the Code, the applicant has specifically admitted the allegation relating to paternity of non-applicant No. 3 in Para 3 of his reply, but subsequently after lapse of three years on 20-7-99, the applicant has amended his reply and made allegation that probably Pappu @ Munna (non-applicant No. 3) is not the legitimate or illegitimate son of the applicant, even after recording of the evidence of non-applicant No. 1 on 7-1-97, i.e., after 2 1/2 years and no opportunity to rebut the same has been given to non-applicant No. 1.

This is a petition u/s 482 of the Code for quashment of maintenance awarded to non-applicant No. 3. Though the jurisdiction u/s 482 of the Code exists and is wide in its scope, but it is a rule of practice that it will only be exercised in exceptional cases. The powers u/s 482 of the Code are to be exercised sparingly and not as an Appellate/Revisional Court. In the case of Arun Shankar Shukla Vs. State of Uttar Pradesh and Others, , the Supreme Court observed:

It is true that u/s 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But the expressions "abuse of the process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extra-ordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well neigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code.

In the instant case, copy of the petition filed u/s 125 of the Code and its reply shows that maintenance for non-applicant No. 3 was claimed on the basis that non-applicant No. 3 is the legitimate child of the applicant. Contents of Para 3 of the application of the non-applicants relating to paternity of non-applicant No. 3 was admitted by the applicant in Para 3 of his reply dated 29-6-96, but after the statement of non-applicant No. 1 the present applicant has amended his reply and additional allegation has been made as Para 3 (a) wherein it has been alleged that non-applicant No. 3 is not the son of the applicant and he was born during the course of adulterous life of non-applicant No. 1. The present applicant has amended his reply on 20-7-99 after three years of his filing reply. Averments relating to paternity in the application filed on behalf of the non-applicants are as follows:

;g fd vukosnd lardqekj ds rjQ ls vkosfndk uhjkckbZ ds xHkZ ls vukosnd dks pkj oS/kkfud larku nks iq=h ,oa nks Ikq= yds''ojh ckbZ mez 7 o"kZ] mek iq=h mez 3 o"kZ] iq= Hkjr mez 5 o"kZ ,oa uk-ck- iq= eqUuk mez yxHkx ,d ekg iq=h yds''ojh ,oa iq= Hkjr vukosnd ds ikl jg jgk gS ,oa iq=h mek 3 o"kZ ,oa ,d ekg dk iq= uk-ck- eqUuk firk lardqekj vkosfndk ds lkFk jg jgs gS A

Reply/admission of the allegations and subsequent explanation by amendment of the applicant are as follows:

;g fd vkosfndkx.k ds vkosnu i= dh dafM+dk&3 dk dFku lR; gS] blfy, Lohdkj gS A

3 d ;g fd dafM+dk 3&d dsoy bruh ckrsa lR; gS fd yds''ojh ckbZ] mekckbZ] iq= Hkjr vukosnd dh rjQ ls oS/kkfud larkus gSa ,oa eqUuk dk tUe tkjrk dh n''kk esa gqvk gS bl dkj.k vukosnd dk iq= ugh gS] bl dkj.k eas rF; badkj gS fd eqUuk vukosnd dk iq= gS^^ A

The applicant has specifically admitted in Para 3 of his reply relating to paternity of non-applicant No. 3, but subsequently, he has made additional allegation explaining paternity and alleged that non-applicant No. 3 was born during the course of adulterous life of his mother, i.e., non-applicant No. 1. The present applicant has not withdrawn his previous admission of paternity. Para 3 and Para 3 (a) of his reply are self-contradictory. Para 3 of his reply is supported by the allegation of the non-applicants and also by the evidence adduced on behalf of the non-applicants, however, factum of birth of non-applicant No. 3 during the course of adulterous life of non-applicant No. 1 is not corroborated by any ocular or documentary evidence of the present applicant. In absence of any evidence to prove the allegation made in Para 3 (a) of the reply of the applicant, it is difficult to hold that non-applicant No. 3 was born during the period of adulterous life of non-applicant No. 1 and in absence of such proof it may be safely inferred on the basis of admission of the applicant in Para 3 of his reply, allegation of the non-applicants and their evidence that non-applicant No. 3 is the legitimate child of the applicant, he is not residing with the applicant and is entitled for maintenance from his legitimate father u/s 125 of the Code.

Both the Courts below, after appreciating the evidence available on record and after considering the law applicable, have awarded maintenance to non-applicant No. 3. The Courts below have not committed any illegality resulted into miscarriage of justice. The order impugned does not warrant any interference in exercise of inherent jurisdiction. Consequently, the petition is liable to be dismissed and it is hereby dismissed.