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2004 DIGILAW 215 (JK)

Parvez Ahmed v. Safeena Bi

2004-07-22

S.K.GUPTA

body2004
The petitioner (non-applicant) has assailed the correctness of the order dated 22.12.2003 propounded by the learned Sessions Judge, Poonch, by virtue of which the revision preferred by him against the order of learned Chief Judicial Magistrate, Poonch, dated 24.7.2003 has been dismissed. 2. Facts relevant for the disposal of this revision may tersely be noticed; Respondent (applicant) Safeena Bi (minor) through her mother has initiated an application, seeking maintenance allowance under section 488 Cr. P.C. against her father in alleging therein that she was born out of the illicit sexual relationship between her mother and the petitioner (non-applicant). It is stated that her mother and the petitioner (non-applicant) were studying together in the School and it was at the time the non-applicant promised to marry with her mother and developed illicit sexual relations with her mother as a result of which she was born on 28.4.2003. The petitioner (non-applicant) has now refused to marry with her mother and also neglected and refused to maintain the respondent, applicant (minor) the illegitimate child born out of illicit relationship, having sufficient means which compelled the respondent (applicant) to approach the Court through her mother and claim maintenance of Rs. 2,000/- per month as the mother with whom she is residing is unable to maintain her on account of financial constraints. An application simultaneously was also preferred by the respondent (applicant) for an interim maintenance on the grounds explicitly delineated in the main petition, claiming maintenance allowance from the petitioner (non-applicant). The learned Chief Judicial Magistrate, Poonch having found on the basis of an affidavit, a prima facie case to the grant of prayer for interim maintenance from the petitioner (non-applicant), the natural father possessing agricultural land and he having sufficient means but neglected and refused to maintain the applicant-respondent, awarded a monthly allowance of Rs. 800/- till final disposal of the petition, vide his order dated 24.7.2003. This order was challenged in revision before the learned Sessions Judge, Poonch by the non-applicant, petitioner (father), but without any success and his revision petition stood dismissed by the impugned order dated 22.12.2003 of the learned Session Judge, Poonch which became the subject matter of this revision. 3. I have heard the learned counsel appearing for the respective parties in extenso and gone through the relevant provisions of law touching the matter in controversy. 4. 3. I have heard the learned counsel appearing for the respective parties in extenso and gone through the relevant provisions of law touching the matter in controversy. 4. It may be pointed out at the first flush that the object of section 488, Cr.P.C. is to provide a summary remedy to save dependants from destitution and vagrancy and this is 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 on her own right, independent of the mother. When a woman claims maintenance on behalf of a minor child out of wedlock against his/her alleged putative father, what is required to be seen is that the child could only have been born through the alleged father under the circumstances of an exclusive relationship. Further, the provisions of section 488, Cr.P.C. aims not to provide further vagrancy, by compelling those who are capable, to support those who are unable to support themselves and have a moral claim to support and not to punish for the past. It is paternity of the child and not legitimacy which has to be seen while deciding the case of entitlement. However, this is a matter which is to be determined on the basis of the affidavits to be let in by the parties in support of and rebuttal thereof in the main petition. 5. In the application for an interim maintenance during the currency of the main petition under section 488, Cr.P.C., it is specifically pleaded on the affidavit that the birth of the child was from the illicit sexual relationship of her mother with putative father which in view of the judgment of the Apex Court rendered in Savitri Devi v. Gobind Singh Rawat, AIR 1986 SC 984 is to be granted on the basis of the affidavit sworn by the applicant before the Court without any legal impediment in making out a prima facie case in favour of the applicant. 6. Mr. 6. Mr. R.P. Bakshi, learned counsel appearing for the revisionist, non-applicant, submitted that in order to draw an inference about paternity of illegitimate child, it must be shown that at or about the time child was conceived, the particular person was frequenting the society of the woman and vice versa, and thereby had access to her. The submission made by Mr. Bakshi, learned counsel appearing for the petitioner (non-applicant) in my view is not of much consequence though it may be so in the main petition while adducing the evidence as the application for an interim maintenance is to be granted on the basis of an affidavit by the Magistrate, in view of the judgment of the Apex Court rendered in Savitri Devi referred supra, and also in view of the object of provisions of section 488 Cr.P.C. to serve social purpose and to save from further vagrancy. 7. When the minor child claims maintenance through her mother on having been born out of the wedlock against his/her alleged putative father, the onus is on her to show that the child could only have been born through the alleged father and there are exclusive relationship by adducing evidence. His further submission is that this is a mandatory requirement before the grant of maintenance to the minor child, as such order dated 24/7/2003 formulated by the learned Chief Judicial Magistrate, Poonch and upheld by the learned Sessions Judge, Poonch vide order dated 22-12-2003 suffers from palpable illegalities and deserves to be set-aside. I, do not find any substance in the submission made by Mr. R. P. Bakshi, learned counsel appearing for the petitioner (non-applicant) in view of the observations of the Apex Court made in Savitri Devis case referred supra. This is a matter which, however, can be gone in the main petition and the interim maintenance can be granted on the basis of the affidavit sworn by the applicant and on having made out a prima facie case in her favour. 8. In the above view of the matter, this revision possessing no merit is, hereby, dismissed.