HARIMAYA TAMANG v. STATE OF SIKKIM — 1988 DIGILAW 2 (SIK)

J. K. MOHANTY, J. ( 1 ) THIS Criminal Revision is directed, against the order dated 10/11/1987 passed by the Judicial Magistrate (East and North) Sikkim at Gangtolc in Criminal Misc. Case No. 1 of 1986 dismissing the application form maintenance under section 488, Code of Criminal Procedure (1898) filed by the petitioner claiming maintenance for herself and children (including minor daughter Sangita Chhetri ). ( 2 ) THE petitioner claims that she was the legally married wife of opposite party Chandra Bahadur Chhetri. They were married about twelve years back and out of their wedlock they had three sons and a daughter. Out of them. One son is dead. It is alleged that in the night of 2/8/1985, the husband (opposite party) came to the house at about 8 p. m. under influence of alcohol, assaulted her and drove her away from the house. At that time, she was in advance stage of pregnancy. She went to her fathers place and remained there where she gave birth to a female child after about four-months. She has claimed maintenance of Rs. 300, - for herself and the newly born daughter and another Rs. 200/- for the two sons now in the care of the opposite party. ( 3 ) THE opposite party took the plea that she was living in adultery and the baby was born out of the adulterous connection and she is not his daughter. ( 4 ) IN the Court below, the petitioner only examined herself and on behalf of the opposite party, the Secretary and President of the Local Gram Panchayat were examined and the opposite party also examined himself. The learned Court found that the petitioner was living in adultery and that the paternity of the child, who was born after she was driven out, has not been established In fact, he has drawn inference that the child was born out of the illicit connection with another person, who is described as Birendra Bengali. ( 5 ) THE petitioner is represented by her father Partiman Tamang and the opposite party is present in person. The matter was taken up with their consent and they were heard. I have also perused the Judgment and the evidence produced in this case. No doubt, it has been established that the petitioner had illicit connection with Birendra Bengali. ( 5 ) THE petitioner is represented by her father Partiman Tamang and the opposite party is present in person. The matter was taken up with their consent and they were heard. I have also perused the Judgment and the evidence produced in this case. No doubt, it has been established that the petitioner had illicit connection with Birendra Bengali. In fact, this was admitted before the Panchayat, which is also corroborated by the statements of one Mohanlal Chhetri (D. W. 2) and another K. B. Gurung, Secretary of the Local Gram Panchayat (D. W. 3), who were examined by the opposite party. D. Ws. Nos. 2 and 3 havet stated that the fact of having illicit connection with Birendra Bengali was admitted before the Panchayat. So, in view of this evidence, the petitioner is not entitled to any maintenance as she is living in adultery. However, in case of the minor daughter, it is there in evidence that the petitioner was in the stage of advance pregnancy when she was driven out of the house and the child was born within four months from the date she left her husbandts place This Tfact is also admitted by the opposite party who is present in Court. Since the child was conceived during the time the petitioner was living with the opposite party, in the absence of any evidence it will be presumed that the child (Sangita Chettri) was born out of the wedlock and as such is entitled to maintenance. In course of the hearing, the opposite party also agreed to maintain the child and prayed that the child be handed over to him for taking care of like the other two sons who are living with him. But it appears that the child is only two years old and she should not be separated from the mother. ( 6 ) AFTER hearing the parties and in the facts and circumstances of the case, I think it appropriate that the opposite party Chandra Bahadur Chettri shall pay maintenance at the rate of Rs. 150. 00 per month to the minor child Sangita Chettri. The first installment of the payment shall start from 20th of May 1988 and shall be paid by the twentieth of every succeeding month. The opposite party has no objection for the payment of maintenance. 150. 00 per month to the minor child Sangita Chettri. The first installment of the payment shall start from 20th of May 1988 and shall be paid by the twentieth of every succeeding month. The opposite party has no objection for the payment of maintenance. The minor daughter shall also be entitled to a lumpsum amount of Rs. 1,000. 00 as maintenance from the date of the application till the date of this order. This amount shall be paid in instalments of Rs. 50. 00 per month in addition to Rs 150. 00 per month. The opposite party Chandra Ball. adur Chettri has also volunteered to pay the above amou nts. ( 7 ) IT appears, in the petition under section 488, Code of Criminal Procedure, the minor has not been made a party but I find from the prayer made in the petition that maintenance has been claimed with respect to the minor child Sang it a Chettri. The same mistake has cropped up in the Criminal Revision Petition. Surprisingly, the learned counsel for the petitioner did not apply his mind to the case and has unnecessarily made State of Sikkim through the Chief Secretary as a party. Anyway, in the interest of justice, this should not be a ground for denying maintenance to the minor, who is entitled to the maintenance. Since the State of Sikkim has been made a party and the learned counsel for the State has appeared on behalf of the State, I direct that the petitioner shall pay Rs. 100. 00 as costs to the learned counsel for the State. This payment should be made on or before 20th of April 1988 and the receipt for the same be filed in the Court. The Revision is allowed in part. --- *** --- .