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Judgment
In this criminal revision case, the order dated 22-7-1998 passed by the Family Court at Vijayawada in MC No.203 of 1995 is sought to be challenged.
Respondent No. 1 herein is the wife of the petitioner herein. They were married on 16-5-1986 in accordance with the customs prevalent in Christian Community. Respondent Nos.2 and 4 are said to be minor sons and respondent No.3 is minor daughter of the petitioner born during the wed-lock with respondent No. 1.
On her behalf and on behalf of the above said minor children, the respondent No.1 filed a petition u/s 125 of Cr.PC for maintenance in the Family Court at Vijayawada on the ground that the petitioner herein has treated respondent No.l with cruelty and he demanded additional dowry and thus forced her to leave the marital home and go to her parents house along with her children. Thereafter, the petitioner neglected to maintain the respondents inspite of having means and that the respondents have no sufficient means to maintain themselves, and claimed maintenance of Rs.400/- per month for each of them. The petitioner herein opposed the petition and filed his counter stating that his marriage was performed according to Hindu rites and he challenged the paternity of respondent No.4, the youngest son, stating that she left his house in the first week of June, 1992 and since then she had been staying with her parents and he had no access to respondent No.1 at any time when the respondent No.4 could have been begotten.
According to the petitioner''s defence, respondent No. 1 left for her parents house on her own and thus deserted the petitioner. Reconciliation efforts also failed. The allegations of cruelty and demand of dowry are denied. It was then pleaded that he has been eking out his livelihood by working as wage earner at Rs. 15/- per day and the claim of maintenance is excessive.
On behalf of the respondents, respondent no. 1 has been examined as PW1 and her mother has been examined as PW2. On behalf of the petitioner herein (respondent in the M.C.), he examined himself as RW1 and examined RWs,2 and 3 on his behalf. Postal acknowledgment and office copy of the notice issued on behalf of the wife have been marked as Exs.Al and A2.
On behalf of the respondents, certified copy of the counter in OP No.159 of 1995, xerox copy of Birth Register extract of respondent No.4, certified copy of petition in OP No.159 of 1995, true extract of the order in IA No.49 of 1995 in OP No.159 of 1995, photostat copy of summons in OP No.70 of 1994 and photostat copy of postal acknowledgment have been marked as Exs.B1 to B6 respectively.
On this material, the learned Judge of the Family Court held that inspite of having means, respondent in the OP (petitioner herein) neglected to maintain the respondents herein and accordingly allowed maintenance at the rate of Rs.400/-per month to the first respondent and at Rs.100/- each to respondents 2 to 4 herein from the date of filing of the maintenance case. It is this order which is now challenged in this revision petition.
The question for consideration is whether the order granting maintenance to the respondents herein suffers from any error, illegality, irregularity or impropriety ?
The learned Counsel for the petitioner-husband challenges this order firstly by contending that inasmuch as the Family Court has already passed an order in IA No.261 of 1998 in OP No.159 of 1995 on its file under which a sum of Rs.500/-was granted to respondent No.1 herein as interim maintenance. This order passed on 22-7-1998 in the MC is erroneous. It appears that the petitioner herein filed OP No.159 of 1995 for dissolution of marriage u/s 33(1)(1a) and (ib) of Hindu Marriage Act taking plea of cruelty and desertion and in that O.P. the said order granting interim maintenance was passed on the application filed by the respondent No.1-wife. There is nothing on record to show that this fact of an earlier application was brought to the notice of the Court when the impugned order was passed on 22-7-1998. At any rate, mere passing of an order for interim maintenance under the provisions of the Hindu Marriage Act in itself cannot be a bar for passing an order for maintenance u/s 125 of Cr.PC.
The order of maintenance granted pendents lite u/s 24 of the Hindu Marriage Act by its very nature lasts during the pendency of the main proceedings before the Court. Such a grant of interim maintenance in itself cannot be a ground for rejecting a petition filed u/s 125 of Cr.PC for maintenance. However, if passing of an order granting maintenance u/s 24 of the Hindu Marriage Act calls for any alteration of the quantum of maintenance allowed u/s 125 of Cr.PC or justifies its cancellation during the period of pendency of the main proceedings before the Family Court, it is for the petitioner to approach the Court u/s 127 of Cr.PC for alteration in the maintenance ordered u/s 125 Cr.PC.
In this case as the order u/s 125 of Cr.PC was passed two days after the granting of maintenance u/s 24 of the Hindu Marriage Act, the petitioner could have brought to the notice of the Court and taken appropriate pleas before the Family Court before passing an order u/s 125 of Cr.PC. At any rate, the mere fact of an order having been passed u/s 24 of the Hindu Marriage Act does not divest the jurisdiction of the Court to pass an order u/s 125 of Cr.PC.
The other ground on which the impugned order is challenged is in regard to award of maintenance to respondent No.4 the youngest son of respondent No.1.
The learned Counsel for the petitioner contends, even according to respondent No.1''s case, that in view of the evidence that respondent No.4 was born after the wife respondent No.1 had left her matrimonial home, it ought to have been held that he was not the son of the petitioner and the petitioner was not liable to maintain him.
The learned Counsel for the petitioner refers to the evidence of RWs.1 to 3 examined by the petitioner in this behalf. I have carefully gone through the discussion of judgment of trial Court on the evidence of the petitioner as RW1 and RWs.2 and 3. I have no manner of doubt that the evidence scarcely satisfies the requirement that there should have been non-access between the petitioner and respondent No. 1. When a child is born during the continuance of valid marriage between the husband and wife, the conclusive presumption is that the child so born is the legitimate child of a man and his wife unless it has been shown that the parties had no access between them. For proving non-access a far higher standard of proof is required. Mere fact that respondent No.1 is said to have left the house of the petitioner can scarcely constitute evidence of non-access specially when even after separation the husband was living at Vijayawada and the wife at Lankapelli in the same district. The contention of the learned Counsel for the petitioner that in proceedings u/s 125 of Cr.PC, when a father disputes paternity of the son on the ground that he was born after the wife left the matrimonial home, maintenance in favour of that son would not have been granted. There is no substance in this contention. It may be mentioned that presumption of legitimacy would also arise in an application u/s 125 of Cr.PC.
The learned trial Judge has discussed the evidence in this regard and accepted the evidence of PW1 that when she was driven out of the house of the petitioner herein, she was pregnant by four months and she gave birth to the fourth respondent in October, 1994. In view of this evidence, the contention that the petitioner had no access to her at the time when the child could have been conceived has no legs to stand.
It is then contended by the learned Counsel for the petitioner that the learned trial Judge entirely mis-appreciated the evidence in holding that the petitioner had neglected to maintain the respondent inspite of having means.
The learned Counsel for the petitioner refers to certain anomaly in the evidence, namely, that the record relating to service of summons in OP No.70 of 1994 on respondent No.l would show that it was served on 27-3-1994 but according to the averment of respondent No.l in her maintenance petition, she left for her parents house is in the month of April, 1994. No evidence has been adduced on the specific point that the notice in question was in fact served on 27-3-1994 except marking a photostat copy of summons in OP No.70 of 1994 and postal acknowledgments as Exs.B5 and B6 during the evidence of the petitioner. This is wholly inadequate to prove the averment of the petitioner in this regard. At any rate, the order under revision would disclose that the learned Judge of the Family Court had examined the evidence adduced by the parties thoroughly and came to the conclusion that the petitioner herein had neglected to maintain the respondents in spite of having means. The learned Family Court Judge came to this conclusion on proper appreciation of evidence on record.
The learned trial Judge particularly emphasised the fact that the petitioner for the purpose of avoiding an order against him has gone to the extent of stating that their marriage was performed according to Hindu Rites whereas the photographs taken at the time of marriage show the respondent No.l in Christian bridal dress and they also show that the Pastors were performing rituals under a tent. He has also observed that the petitioner has gone to the extent of making an allegation that respondent No.l was living in adultery though such a plea was not taken in his petition for dissolution of marriage filed in OP No.159 of 1995.
Thus, the learned Counsel for the petitioner has been unable to show that the conclusions of the learned Family Judge are erroneous, illegal, irregular or improper in any way. The conclusions are supported by evidence on record.
As to the quantum of maintenance granted, the learned trial Judge has discussed the probable income of the petitioner who has been working as professional fisherman. He believed the version as to income as stated by respondent No.l as PW1 and her mother as PW2 and disbelieved the petitioner''s version as given by RWs.1 to 3. After an elaborate discussion, the learned Family Judge has held that the petitioner''s income would not be less than Rs.2,500/-per month. The maintenance was awarded on this basis. I am unable to agree that the quantum of maintenance awarded is excessive or highly disproportionate to the income of the petitioner.
In view of the above, I find that there are no merits in the revision petition and it is dismissed accordingly. But, under the circumstances without costs.