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2004 DIGILAW 543 (PNJ)

Shiv Kumar v. Baby Sonam

2004-05-12

SATISH KUMAR MITTAL

body2004
Judgment Satish Kumar Mittal, J. 1. This judgment shall dispose of Criminal Revision No. 843 of 1997, filed by Shiv Kumar the husband and Criminal Misc. No. 22459-M of 1997, filed by Asha Rani - the wife and her daughter Baby Sonam, against the order dated 11.8.1997 passed by Additional Sessions Judge, Chandigarh. 2. Undisputedly, the marriage of Asha Rani with Shiv Kumar Sharma was solemnized on 7.12.1993. Baby Sonam was born out of this wedlock on 22.8.1994. On 6.6.1995, the wife and the minor daughter filed an application under Section 125 of the Code of Criminal Procedures (hereinafter referred to as the Code) for the grant of maintenance allowance by pleading that the husband was neglecting and refusing to maintain them and they were unable to maintain themselves. The husband contested the aforesaid application on the ground that the wife was living in adultery and was already pregnant at the time of her marriage and the female child was not born from his loins, therefore, they are not entitled for the maintenance. 3. During the pendency of the said proceedings, the husband filed a divorce petition on the ground of adultery and desertion, which was allowed on 21.5.1996 and an ex parte decree of divorce was granted in his favour. 4. Counsel for the wife states that the said decree of divorce has became final. 5. On the basis of the said ex parte decree of divorce, which was passed on the ground of adultery and also on the basis of the statement made by the wife before the Judicial Magistrate 1st Class, Chandigarh, under Section 164 of the Code, in which she admitted that she was having illicit relation with one Shish Pal Pujari before the marriage and she was pregnant at the time of the marriage, the Trial Court held that the wife was not entitled for maintenance as she was living in adultery. Regarding the minor daughter, the Trial Court held that when the wife was living in adultery with Shish Pal Pujari, then prima facie it seems that the minor was born from his loins, therefore, the husband is not liable to maintain her being not his child. 6. Against the aforesaid order, the wife and the minor daughter through her filed revision petition. The revisional Court allowed the revision filed by the minor daughter, but dismissed the claim of the wife. 6. Against the aforesaid order, the wife and the minor daughter through her filed revision petition. The revisional Court allowed the revision filed by the minor daughter, but dismissed the claim of the wife. It was held that the decree of divorce granted in favour of the husband by the wife under Section 164 of the Code admitting her relations prior to the marriage and after the marriage with a third person disentitled her from seeking maintenance. However, it was held that the finding recorded by the Trial Court that the minor daughter was not the child of the husband was absolutely illegal and without jurisdiction. It was held that the proceedings under Section 125 of the Code are summary in nature and in those proceedings such declaration about legitimacy of a child could not have been granted, particularly in view of the fact that the marriage between the parties took place on 7.12.1993 and the child was born on 22.8.1994. In view of Section 112 of the Indian Evidence Act, presumption regarding legitimacy of the child was raised. The revisional Court set aside the order qua the minor daughter and remanded the matter to the Trial Court for fixing the amount of maintenance in view of the financial status of the parties. 7. Against the aforesaid order, the instant two petitions have been filed. 8. I have heard the arguments of learned Counsel for the parties and have perused the record of the case. I do not find any merit in either of the petitions. Counsel for the husband vehemently argued that in view of the statement made by the wife under Section 164 of the Code before the Judicial Magistrate to the effect that at the time of marriage, she was having illicit relation with Shish Pal Pujari and she was also pregnant, the conclusion drawn by the Trial Court that the minor daughter was not born from the loins of the husband was correct and the revisional Court has acted illegally while setting aside the said conclusion. I do not find force in this contention. Undisputedly, the marriage was solemnized on 7.12.1993 and the child was born on 22.8.1994 i.e., after more than eight months of the marriage. In such a situation, a strong presumption under Section 112 of the Indian Evidence Act about the legitimacy of the child from the married couple was existing. I do not find force in this contention. Undisputedly, the marriage was solemnized on 7.12.1993 and the child was born on 22.8.1994 i.e., after more than eight months of the marriage. In such a situation, a strong presumption under Section 112 of the Indian Evidence Act about the legitimacy of the child from the married couple was existing. The question of legitimacy of a child is a serious question which should not be normally decided in summary proceedings. If the husband wanted a declaration to the effect that the minor daughter was not his child, then he should have filed a declaratory suit in this regard, so that this question can be authoritatively decided in a Civil suit on the basis of evidence. In the instant case, the husband is relying upon the statement made by the wife under Section 164 of the Code, which is not sufficient to rebut the strong presumption of legitimacy of the child born from the wedlock. Similarly, the contention of learned Counsel for the wife that the revisional Court has illegally affirmed the order of the Trial Court qua declining the maintenance to her is also devoid of merit. Therefore, I do not find any infirmity in the impugned order passed by the revisional Court. 9. In view of the aforesaid discussion, both the petitions are dismissed.