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Madhya Pradesh High Court · body

2002 DIGILAW 492 (MP)

Gopal Singh v. Krishnabai

2002-05-04

S.L.KOCHAR

body2002
Judgment ( 1. ) THE applicant-husband has questioned the order dated 12. 2. 2002 passed by Addl. Sessions Judge, Shujalpur in Crl. Revision No. 174/99 arising out of the order passed in M. Cr. C. No. 21/98 by Judicial Magistrate First Class, Shujalpur on 20. 8. 1999 reversing the order of the Trial Court regarding refusal of maintenance to the wife/non-applicant No. 1 and son/non-applicant No. 2, by filing this revision petition. ( 2. ) THE non-applicants had filed an application for grant of maintenance on the ground that the non-applicant No. 1 is the legally married wife of the applicant and after marriage out of their wedlock, non-applicant No. 1 Ravikumar born. The applicant was illtreating her for demand of dowry. When the non-applicant was pregnant, as per customs she was taken for her delivery by her father from her matrimonial house. The non-applicant Ravi Kumar born at the house of her father. After the birth of non-applicant No. 2, the applicant-father did not take any care of the non-applicants. Therefore, they filed an application Under Section 125 of the Cr. P. C. for grant of maintenance which was, after contest by the parties, dismissed by the Court below against which the non-applicants went up in revision and the lower Revisional Court allowed the same directing payment of maintenance at the rate of Rs. 400/- to each of the non-applicants. ( 3. ) THE contention of the Counsel for the applicant is that there was a mutual divorce between the applicant and non-applicant No. 1 regarding which the document Ex. P/1 was written on 29. 4. 1993. It has also been contended by the Counsel for the applicant that the non-applicant No. 1 was not his son and he has born after more than one and half years of leaving his house by his wife/non-applicant No. 1. The Counsel has also raised grievance about the" document Ex. D/2 showing earning of the non-applicant No. 1. This is a document shown to be issued by the Project Officer, Child Development Project, Shujalpur. According to the applicant, non-applicant was working as Aanganwadi worker and drawing Rs. 350/- as honorarium. Counsel for the applicant is relying on the judgments reported in AIR 1982 SC 1057 , AIR 1980 SC 1259, AIR 1967 SC 1269 , AIR 1981 SC 1481 , and AIR 1971 SC 173 . Her contention is that Ex. According to the applicant, non-applicant was working as Aanganwadi worker and drawing Rs. 350/- as honorarium. Counsel for the applicant is relying on the judgments reported in AIR 1982 SC 1057 , AIR 1980 SC 1259, AIR 1967 SC 1269 , AIR 1981 SC 1481 , and AIR 1971 SC 173 . Her contention is that Ex. D/2 is a public document and without proving the same, it should not have been admitted and considered as legal evidence. For the date of birth of non-applicant No. 2, his horoscope was filed, but the same is not showing the date of birth of the non-applicant No. 2. ( 4. ) AS against this, the Counsel for the non-applicants has submitted that first of all the applicant has failed to prove the mutual divorce vide Ex. D/1 by adducing any evidence. This document does not bear any signature or thumb impression of non-applicant No. 1. This document is showing the signature of her father Mangilal, but the same was not got proved by examining him and even the scribe of this document has not been examined. This document is not bearing the signature of the applicant and in the Trial Court, the non-applicant No. 1 has denied the execution of such document. ( 5. ) THE learned Revisional Court has rightly held in para 6 of its order that without proving the document Ex. D/1, in accordance with law, the same cannot be considered in favour of the applicant for the purpose of mutual divorce. Learned Counsel also submits that according to the statement of the applicant, she had gone to her fathers house for delivery and at that time she was carrying pregnancy of two months. This statement of the non-applicant No. 1 and her other witnesses have not been demolished in cross-examination as well as by adducing other evidence by the applicant. The applicant has not even gave clear suggestion to the non-applicant No. 1 in cross-examination that the non-applicant No. 2 was not his son and is an illegitimate child. Counsel for the non-applicants has relied on the judgments reported in AIR 1965 SC 365, AIR 1980 SC 1041, 1997 MPWN (2) 687, 1995 MPWN (2) 162, and 1996 MPWN (1) 128. It has also been contended that according to Section 125 (4) the non-applicant Nos. 1 and 2 are entitled for maintenance. ( 6. Counsel for the non-applicants has relied on the judgments reported in AIR 1965 SC 365, AIR 1980 SC 1041, 1997 MPWN (2) 687, 1995 MPWN (2) 162, and 1996 MPWN (1) 128. It has also been contended that according to Section 125 (4) the non-applicant Nos. 1 and 2 are entitled for maintenance. ( 6. ) HAVING heard the learned Counsel for the parties and also perusing the record, this Court is of the opinion that no illegality, irregularity or impropriety has been committed by the Revisional Court by granting maintenance to the non-applicants. In para 6 of the impugned order, the Revisional Court has rightly held that the document Ex. D/1 has not been proved by examining the relevant witnesses of the said document. Therefore, the same cannot be accepted as a document of mutual divorce. Since mutual divorce is not proved, in these circumstances, as per provisions of Section 112 of the Evidence Act, the burden is on the applicant husband-father to prove that the non-applicant 2 was not his son. The applicant has failed to discharge this burden. Learned Counsel for the applicant as well as the non-applicants have read out the statements of the applicant and non-applicant No. 1 and there is absolutely nothing in the statements of both these persons to come to the conclusion that the non-applicant was not the son of the applicant. There is consistent and reliable evidence on record showing that the non-applicant No. 1 had left the house of the applicant when she was carrying pregnancy. ( 7. ) AFTER excluding the horoscope and evidence in this regard there is sufficient material on record i. e. the statement of N. A. No. 1 and her witnesses to show that when she left the house of the applicant, she was pregnant and, thereafter, the non-applicant No. 2 was born at the house of his maternal grand-father. ( 8. ) TO prove that non-applicant No. 1 was serving as Aanganwadi worker, document Ex. D/2 was produced. But the same was not got proved by examining the relevant witnesses. The learned Revisional Court after discussing this issue in para 7 of its order in detail, held that the document cannot be consisdered in absence of its proof. ( 9. ) TO prove that non-applicant No. 1 was serving as Aanganwadi worker, document Ex. D/2 was produced. But the same was not got proved by examining the relevant witnesses. The learned Revisional Court after discussing this issue in para 7 of its order in detail, held that the document cannot be consisdered in absence of its proof. ( 9. ) LEARNED Counsel for the/ applicant relying on the aforesaid decisions contended that this document is a public document and mere its filing before the Court below is sufficient and the same need not be proved. First of all this document cannot be regarded as a public document and without its proof by the witnesses, the same cannot be considered in evidence. Reliance can be placed on a judgment reported in AIR 1970 Supreme Court 1029. Unproved and unexhibited school certificate cannot be relied upon, In the present case, Ex. D/1 is not a school certificate, but a certificate issued by the Project Officer whose name is not mentioned in the said certificate. There is no official seal as well as the same has also not been issued on official letter-head. So, there is no evidence that the record was maintained by the public servant in discharge of his official duty and the certificate of salary or employment of N. A. No. 1 was issued on the basis of such public document-record. ( 10. ) IN view of the aforesaid analysis of the factual and legal position, the order granting maintenance to the non-applicant Nos. 1 and 2 by the Revisional Court is liable to be and is hereby upheld.