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2001 DIGILAW 302 (MP)

Manjeet Singh v. Meena alias Manpreet Kaur

2001-04-03

S.P.KHARE

body2001
Judgment ( 1. ) THIS is a petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the Code) challenging the order by which maintenance allowance has been granted to the respondents under Section 125 of the Code. ( 2. ) MANPREET Kaur was married to Sardar Manjcet Singh on 4-10-1987 and after the marriage she started living with him at Mathura (U. P. ). Sonu was born to her on 22-7-1988 at Mathura and Gudia on 3-11-1989 at Itarsi. She filed a petition under Section 125 of the Code stating therein that she has been driven out of the matrimonial home on 18-2-1991 and since then she is living with her parents at Itarsi. The husband denied that he is father of these two children. According to him Manpreet Kaur was earlier married to Amarjeet Singh and he is the father of these children. It has been stated that Manpreet Kaur has admitted this fact in the two affidavits dated 3-2-1990 and 9-2-1990 (Ex. D-3 and Ex. D-4) sworn by her at Mathura. The Trial Magistrate after appreciation of the documentary and oral evidence adduced by both the sides by his order dated 5-1-1998 held that Sardar Manjeet Singh is the father of the two children and granted maintenance allowance of Rs. 400/- per month to the wife and Rs. 300/- per month to each of the two children. A revision filed by the husband against that order has been dismissed by order dated 21-9-1998 and, therefore, he has filed the present petition assailing those orders. ( 3. ) IT has been argued on behalf of the petitioner that he is not the father of the two children and as his wife is living in adultery she is not entitled to maintenance allowance. As already stated there is a concurrent finding of fact of the two Courts that the petitioner is the father of the two children and the wife is not living in adultery with Amarjeet Singh. That finding being based on evidence on record cannot be disturbed by this Court in a proceeding under Section 482 of the Code. It has been pointed that this finding is contrary to the admissions made in the two affidavits referred to above and therefore it is perverse. That finding being based on evidence on record cannot be disturbed by this Court in a proceeding under Section 482 of the Code. It has been pointed that this finding is contrary to the admissions made in the two affidavits referred to above and therefore it is perverse. After going through the affidavits and other documentary and oral evidence on record this Court is also of the opinion that these affidavits have been obtained from the wife by undue-influence and fraud. She was the victim of mental and physical duress. The father of the wife immediately after returning from Mathura lodged a report supported by his own affidavit at Itarsi. She wrote a number of letters from Mathura to Itarsi during the period she was living there and the husband had access to her during the period the children were begotten. Amarjeet Singh was examined as a witness by applicant Manpreet Kaur and he deposed that he had no relation with her and he never married her. The finding of the two Courts regarding the paternity of the children is correct. ( 4. ) SECTION 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days of its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Thus the law presumes strongly in favour of legitimacy of the off-spring. A child born during the continuance of a valid marriage is legitimate unless non-access is proved by the husband. The proof of non-access must be strong, distinct, clear, satisfactory and conclusive. Unless absence of access is established presumption of legitimacy cannot be displaced. ( 5. ) IN Venkateshwarlu Vs. Venkatanarayana, AIR 1954 SC 176 , it has been held by the Supreme Court that the presumption, which Section 112 contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access connote existence and non-existence of opportunities for marital intercourse. Non-access can be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue, though, as the presumption of legitimacy is highly favoured by law, it is necessary that proof of non-access must be clear and satisfactory. ( 6. ) IN Dukhtarjahan Vs. Mohd. Farooq, AIR 1987 SC 1049 , it has been observed that this rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. Again in Goutam Kundu Vs. State of West Bengal, AIR 1993 SC 2295 , it has been stated that Section 112 requires the party disputing the paternity to prove non-access in order to dispel the presumption. "access" and "non-access" mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation. It is a rebuttable presumption of law under Section 112 that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. ( 7. ) IN view of the above discussion the two Courts below were right in their conclusion that petitioner Sardar Manjeet Singh is the father of the two children and the wife never lived in adultery. The grant of maintenance allowance to the wife and the children is just and proper. The quantum of maintenance allowance does not appear to be sufficient. They may apply for enhancement before the Trial Magistrate. ( 8. ) THE petition is dismissed.