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1994 DIGILAW 356 (ORI)

MADHAB PRADHAN v. KETAKI PRADHAN

1994-11-23

ARIJIT PASAYAT

body1994
ARIJIT PASAYAT, J. ( 1 ) IN this revision application under S. 19 of the Family Courts Act, 1984 (in short, the 'act'), order passed by learned Judge, Family Court, Rourkela accepting prayer for maintenance in respect of daughter of opposite party is the subject-matter of challenge. ( 2 ) KETAKI (opposite party) lodged a claim under S. 125 of the Code of Criminal Procedure, 1973 (in short, the 'code') claiming maintenance of Rs. 1,000. 00 per month from petitioner Madhab for herself and her daughter alleging that she and petitioner had entered into wedlock and the daughter was their off spring. Her stand in short was as follows : she and Madhab belong to same village, Madhab was doing carpentry work along with her brothers, illicit sexual relationship developed between them, and they got married by exchanging garlands inside the jungle, Madhab led her to believe that they would be living together as husband and wife, persuaded her for sexual intercourse with him on several occasions, subsequently she became pregnant and gave birth to a child. When Medhab refused to accept her as his wife, she made a grievance before the villagers and several meetings were convened. But Madhab denied to accept her as his wife. She claimed maintenance on the ground that she was unable to maintain herself and the child, and Madhab having sufficient means was neglecting to maintain them. Madhab denied the allegations, and stated that he was not in visiting terms with Ketaki, and took a definite stand that Ketaki being of loose morals was involved in sexual affairs with several other persons, and might have conceived through any one of them. ( 3 ) THE learned Judge, Family Court, Rourkela considered the evidence of three witnesses examined in support of Ketaki's plea, and evidence of five witnesses examined to lend support to Madhab's stand. Ketaki was examined at P. W. 3, while Madhab was examined as O. P. W. 1. On consideration of respective stands and materials on record, the learned Judge, Family Court came to hold that Kataki was not entitled to maintenance because Madhab had earlier entered into a legal and valid marriage. He, however, observed that the child though illegitimate was entitled to maintenance. ( 4 ) MR. On consideration of respective stands and materials on record, the learned Judge, Family Court came to hold that Kataki was not entitled to maintenance because Madhab had earlier entered into a legal and valid marriage. He, however, observed that the child though illegitimate was entitled to maintenance. ( 4 ) MR. Samareswar Mohanty, learned counsel appearing for Madhab, submitted that the evidence on record falls short of the requirement in law that one who claims that a child was born out of illicit sexual relationship, and a particular person is the father has to establish it. The Court has a duty to see that the evidence of the woman who claims maintenance in respect of a minor child gets corroboration, direct or circumstantial. This requirement in law arises because the claimant is a highly interested person. Reliance is placed on a decision of this Court in Smt. Ahalya Bariba alias Berihani v. Chhelia Padhan (1991) 72 Cut LT 476. Mr. Mohanty submitted that there is no material to show that Madhab and Ketaki had any access to each other. Mr. D. P. Das, learned counsel for Ketaki on the other hand submitted that the evidence of O. P. N. 1 and four other witnesses examined to land support to his stand clearly establish about the access. Even Madhab's own witnesses have stated about his going to the house of Ketaki. Since the relationship was illicit, it is not normal to expect that any direct evidence would be available. Very fact, that three meetings were convened where Ketaki pointed out at Madhab to be the culprit, itself is a circumstance which has been duly considered. In a remote village of Sundargarh district, a woman would not normally bring disrespect to her by making false allegations against any person who is known to her and her family members, particularly when the person concerned is a married person and is not possessed of sufficient means, which would provide motive to make such accusations. He submits that refusal to grant maintenance to Ketaki is also not in accordance with law. ( 5 ) SO far as claim of Ketaki is concerned, the learned Judge, Family Court has rightly refused maintenance to her. Clause (a) of Sub-Section (1) of S. 125 refers to a wife unable to maintain herself. "wife" means a legally wedded wife. He submits that refusal to grant maintenance to Ketaki is also not in accordance with law. ( 5 ) SO far as claim of Ketaki is concerned, the learned Judge, Family Court has rightly refused maintenance to her. Clause (a) of Sub-Section (1) of S. 125 refers to a wife unable to maintain herself. "wife" means a legally wedded wife. No woman can give herself a status of wife unless she is legally and validly married to the other. The term "wife" however does not include a woman whose marriage is void. Under Explanation (b) to S. 125 (1), "wife" includes a person who has been divorced by, or has obtained a divorce from, her husband and has not remarried. A woman cannot be granted maintenance order against a man unless she proves herself to be his legally married wife according to his personal law. Since Ketaki has herself accepted that Madhab had a legally married wife and that they entered into so-called marital relationship by exchange of garlands subsequent to the first marriage, her marriage if any is not sanctioned in law and, therefore, she cannot be called to be a wife. ( 6 ) SO far as minor children are concerned, law makes a departure and a child whether legitimate or illegitimate, whether married or not, if a minor, has been given a protection if it is unable to maintain itself. In the case of a illegitimate child also, if not a married daughter, protection is given. Further, if the child by reason of physical or mental abnormality or injury is unable to maintain itself, even a major child (not being a married daughter) is extended the protection. The object of S. 125 of the Code is to provide a summary remedy to save dependants from destitution and vagrancy. It is intended to serve a social purpose, apart from and independent of the obligations of the parties under their personal law. The right of the child, legitimate or illegitimate, under the Code is an individual right of the child in his or in her own right, independent of the mother. When a woman claims maintenance on behalf of a minor child out of wedlock against his alleged putative father, the ones is on her to show that the child could only have been born through the alleged father under the circumstances of an exclusive relationship. When a woman claims maintenance on behalf of a minor child out of wedlock against his alleged putative father, the ones is on her to show that the child could only have been born through the alleged father under the circumstances of an exclusive relationship. As pointed out in Smt. Ahalya Bariha's case (1992 Cri LJ 493) (Orissa) (supra) the woman being a highly interested person, the Court has a duty to see that her statement gets some independent corroboration, direct or circumstantial, that the claimant could have conceived the child when she and the alleged father had access to each other. ( 7 ) IN the case at hand the evidence of O. P. W. 3 and the court witness, who happened to be elder brother of claimant Ketaki go a long way to show that both Ketaki and Madhab had access to each other. As rightly submitted by Mr. Das it would be almost impossible to got direct evidence of anybody witnessing the actual act of sexual intercourse. So, circumstances unerringly pointing to it can be considered. Added to this is the evidence of witnesses examined both by Madhab and Ketaki. All of then have accepted about the meetings where Ketaki claimed about fatherhood of Madhab. Though in all cases, such meetings would not be sufficient to throw light on the claims of the parties, yet in a given case Court can consider the effect of decision taken in the meeting, and the conduct of parties in the meeting. There is no dispute that three meetings were held and in fact the witnesses examined to lend support Madhab's case, have also accepted about holding of meetings, Court below has elaborately dealt with that aspect and has considered it to be a corroborative factor. I do not find the conclusion to be unreasonable to take a different view. ( 8 ) CONSIDERING the limited power exercisable by a revisional court, I find no scope for interference in this revision application. Further, quantum awarded by the learned Judge, Family Court does not appear to be unreasonable to need variation. The revision application is dismissed. Application dismissed. .