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2002 DIGILAW 110 (JK)

Mohd. Rashid v. Jahangir Ahmad

2002-04-19

B.L.BHAT

body2002
1. This motion of revision is aimed at revising the order of learned Session Judge. Poonch dated 9-7-2001, whereby he came to dismiss the revision petition titled Mohd. Rashid versus Jahangir Ahmad affirming the order of learned Chief Judicial Magistrate, Poonch granting maintenance of Rs. 200/- per month from the date of application in favour of respondent applicant in an application under section 488 Cr. P. C 2. It appear that on 1st of July 1986 respondent applicant Jahangir Ahmad ( minor) under the next friend of his mother Mst. Sharifa Bibi came to approch the Inquiry Magistrate for the grant of maintenance allowance from the petitioner. This petition came to be registered as misc. no. 13 of 1-7-1986 and decided on 2-12-1986 by virtue of compromise arrived at in between the next friend of minor respondent applicant whereby it was agreed that the petitioner non/applicant shall pay Rs 50/- as maintenance allowance to the respondent/applicant. After arriving at said compromise it appears that the petitioner never paid said amount of maintenance up to November 1988 to the respondent applicant and thereafter again neglected to maintain him. It also appear that the petitioner started another round of litigation by filing a fresh application for grant of maintenance on the ground that respondent/applicant is bron out of the wedlook of Sharifa and petitioner and Mst . Sharifa who stands divorced by the petitioner/ non-applicant. That prior to this application the respondent applicant had filed an application for grant of maintenance under section 488 Cr. P.C. which ended into compromise wherein the petitioner non-applicant had agreed to pay Rs. 50/-per month to the respondent/applicant for two years pursuant to that he paid only upto november 1998. That the respondent/applicant is minor and the petitioner/hon-applicant is employed in CRPF and is drawing a monthly salary of Rs. 1500/-. The petitioner/non-applicant resisted the petition by filing objection where in he has interalia stated that the respondent/applicant is not his son and he is bron from Mst. Sharifa his divorcee during the period when he had no acess with her. 1500/-. The petitioner/non-applicant resisted the petition by filing objection where in he has interalia stated that the respondent/applicant is not his son and he is bron from Mst. Sharifa his divorcee during the period when he had no acess with her. After recording the evidence of parties and their witnesses, the Inquiry Magistrate came to award an amount of Rs 200/- as monthly maintenance to the respondent/applicant from the petitioner non-applicant after holding that the respondent/ applicant is the son of petitioner/ non-applicant who is a person of sufficient means and has neglected to maintain his son. 3. Aggrieved by this order the petitioner has challenged the same before the learned Sessions Judge, Poonch who by virtue of impugned order has not found any illegality or impropriety in the order and has came to dismiss the same after affirming the order of Inquiry Magistrate heard the learned counsel for parties. 4. The proceedings under section 488 Cr. P.C. are intended for ensuring some supply of food cloths and shelter to the deserted wives and childen whatsoever the case may be from their respective husbands, fathers provided such a husband or father is a person of sufficient means and has neglected or refused to maintain his wife or child legitimate or illegitimate who is unable to maintain itself. This section does not provide for full and final determination of the status of the parties and their personal rights to claim maintenance but, at the same, time the person approching the court under this section is under an obligation to prove his status of being the wife or child, legitimate or illegitimate whatsoever the case may be by preponderence of evidence as these proceedings are civil in nature. While a person claming himself as a child of a person having sufficient means is enable to maintain itself, the opposite party denying his status of being his father the Judicial Magistrate has a jurisdiction to decide the question of paternity of such a child. Even an illegitimate child is entitled to get maintenance provided that such a child was born during the period when his her mother had a cohabitation or a chance of cohabitation with the person from whom statutory maintenance is claimed. Even an illegitimate child is entitled to get maintenance provided that such a child was born during the period when his her mother had a cohabitation or a chance of cohabitation with the person from whom statutory maintenance is claimed. To decide the paternity the evidence of mother of a child alone is not the sufficient evidence but the same shall be corroborated by other circumstances that is to say the date of birth certificate of the child, the admission of the person from whom maintenance is claimed and other evidence pointing that in all reasonable probability none else except the person from whom maintenance is claimed could have fathered the child. Having regard to this law, from the perusal of the record of case as indicated it is clear that prior to the proceeding in question, an application under section 488 Cr. P.C. came to be filed by the respondent-applicant under the next friend of his mother seeking maintenance before the Inquiry Magistrate, which came to be registered as Misc. file no. 13 of 1-7-1986 in which parties have entered into compromise. The certified copy of the same is on the file which reveals that petitioner / non-applicant has acknowleged respondent /applicant as his son and has undertaking to pay Rs. 50 /- as monthly maintenance to him for two years and after this period to take him to his own house. Till then he will continue to remain with his mother Mst. Sharifa. It also appears that Mst. Sharifa, the next friend of minor and his witnesses Mohd Akber and Sakhi Mohd have with one voice deposed that the respondent / applicant was born during the subsistence of marriage in between Sharifa and petitioner and Mst. Sharifa now stands divorced by the petitioner, this evidence of the petitioner re-enforced is force by the extract copy of birth register of police station Poonch, where the date of birth of petitioner is shown as 2-6-1986 and his parents are shown as Mohd Rashid the father and Mst . Sharifa as mother. Mohd Rashid the petitioner in his evidence before the inquiry magistrate has tried to prove that the respondent / applicant was born during the period when he had no access with his mother Mst. Sharifa by deposing that he was married to Sharifa bi in the year 1981 who continued as his wife till 4-4-1986. Sharifa as mother. Mohd Rashid the petitioner in his evidence before the inquiry magistrate has tried to prove that the respondent / applicant was born during the period when he had no access with his mother Mst. Sharifa by deposing that he was married to Sharifa bi in the year 1981 who continued as his wife till 4-4-1986. He had arrived on leave in his house in the month of March 1985 thereafter one year again he came on leave, and this is on April 4, 1986 he pronounced talk to his wife Mst Sharifa and also during this period he had no access with his wife Mst. Sharifa. This assertion of the petitioner that he had no access with his wife from march 1985 up till 1986 is not corroborated by his witnesses namely Mohd Shabir and the witnesses examined under section 540 Cr. P.C. in the case. Moreover when as indicated the petitioner has admitted in earlier proceeding under section 488 Cr. P.C. which was pending in between the parties that the respondnt/applicant as his son. In this behalf the court below have rightly relied on section 58 of the Evidence Act which interalia provides that a fact admitted by one party need not be proved. In view of the aforesaid discussion I find no illegality or improprity in the impugned order and the order recorded by the learned Inquiry Magistrate therefore the revision fails the same is dismissed.