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2004 DIGILAW 6 (GAU)

Nirmal Nath v. Maneka Das

2004-01-05

P.G.AGARWAL

body2004
ORDER P.G. Agarwal, J. 1. Heard Mr. N. Choudhury, the learned Counsel for the Petitioner. 2. The Respondent applicant filed an application Under Section 125 Code of Criminal Procedure before the Judicial Magistrate, 1st Class, Karimganj claiming maintenance for herself and her child. The petition was resisted by the present Petitioner on the ground that there was no marriage between the parties and he is not the father of the child. The trial Court vide impugned order granted maintenance for the applicant as well as for her child. The Petitioner thereafter approached the Sessions Judge, Karimganj in Criminal Revision No. 59(4) of 2002 and the learned revisional Court dismissed the revision petition vide order dated 13.11.03. Hence, the second revision. 3. Admittedly, the second revision is barred Under Section 397(3) Code of Criminal Procedure. The only submission made by Mr. Choudhury is that although the Petitioner approached the revisional Court for DNA test to ascertain the paternity of the child, the impugned order is altogether silent on the point. 4. In the case of S. Sethurathiam Pillai v. Barbara reported in (1971) 3 SCC 923 , the Apex Court had observed that an order Under Section 125 Code of Criminal Procedure does not finally determine the status, rights and obligations of the parties. The above decision was reiterated in the case of Dwarika Satpathy v. Bidyut Prava Dixit reported in (1999) 7 SCC 675 . In the case of Kirti Kant v. the State of Gujarat reported in (1996) 4 SCC 479 the Apex Court observed as follows: The dominant purpose behind the benevolent provision contained in Section125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation. Having regard to this special object the provisions of Section 125 of the Code have to be given a liberal construction to fulfil and achieve this intention of the legislature. 5. Relying on the above decision, the Apex Court in the case of Guptar Jahan v. Md. Faruk, reported in AIR 1987 SC 1049 held that "even in exercise of power Under Section482 Code of Criminal Procedure, the High Court should sustain the order of maintenance and direct the husband to seek declaration in civil Court after full trial that the child was not born through him and as such he is not liable to pay maintenance." 6. This Court in a catena of decisions held that the husband who disputes the marriage or paternity of the child is always at liberty to approach the civil Court for a declaration to that effect and till such declaration is given in favour of the husband Petitioner, he is liable to pay maintenance as per the order of the Court below. The trial Court as well as the revisional Court has held against the Petitioner and as such in this second revision, we do not propose to interfere and provide that the husband Petitioner shall pay the maintenance as directed by the Court below and he will be at liberty to approach the competent civil Court for a declaration that he is not the husband of the Respondent applicant or that he is not the father of the child concerned and till such declaration is given by the competent civil Court, the Petitioner shall continue to pay maintenance as directed. 7. With the above observations the revision petition stands dismissed.