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Madhya Pradesh High Court · body

2009 DIGILAW 406 (MP)

PREMLAL v. LEELABAI

2009-03-31

N.K.MODY

body2009
Judgment ( 1. ) BEING aggrieved by the order dated 7th January 2008 passed by 1st Additional Sessions Judge, Shajapur in Cr. R. No. 193/07 whereby the order dated 09/08/07 passed by Chief Judicial Magistrate, Shajapur in Criminal case No. 113/06 whereby the application filed by the respondents U/s 125 Cr. P. C. was allowed in part and the maintenance was awarded @ Rs. 500/- per month to the respondent No. 2 was maintained, the present petition has been filed. ( 2. ) SHORT facts of the case are that the respondents filed a petition U/s 125 cr. P. C. for grant of maintenance alleging that the respondent No. 1 is the wife of petitioner. It was alleged that petitioner married with respondent no. 1 without disclosing the fact that he is already married to some one else. It was alleged that after the marriage respondent No. 1 came to know that petitioner was already married to Gulab Bai. It was alleged that out of the wedlock respondent No. l has delivered a son Sandeep respondent No. 2 herein. It was alleged that respondent no. l was subjected to cruelty and was compelled to leave the house. It was alleged that respondents are unable to maintained themselves, while petitioner is able to maintain them. It was prayed that petition be allowed and the maintenance @ Rs. 3,000/- per month be awarded. Petition was contested on various grounds by the petitioner including on the ground that respondent No. l is not the wife of the petitioner and respondent No. 2 is not son of the petitioner. It was alleged that respondent No. 1 is the wife of one Rajaram from whom respondent No. 1 is having two children. It was also alleged that petitioner is married to Gulab Bai and is also having children from her. It was alleged that since the respondent No. l is wife of rajaram and respondent No. 2 is not the son of petitioner, therefore, petition filed by the respondent be dismissed. After holding summery inquiry learned Trial Court dismissed the application filed by the respondent No. 1 but allowed the application filed by respondent No. 2 and awarded maintenance @ Rs. 500/- per month, against which a revision petition was filed which was dismissed, hence this petition. ( 3. ) MR. After holding summery inquiry learned Trial Court dismissed the application filed by the respondent No. 1 but allowed the application filed by respondent No. 2 and awarded maintenance @ Rs. 500/- per month, against which a revision petition was filed which was dismissed, hence this petition. ( 3. ) MR. MANISH Vijayvargiya, learned counsel for petitioner argued at length and submits that the impugned order passed by the learned Courts below is illegal and deserves to be set aside. It is submitted that since the respondent no. 1 was married to one Rajaram and no divorce took place between them, therefore, it has to be presumed under law that the respondent No. 2 is the son of respondent No. 1 from her husband Rajaram. For this contention reliance is placed on Section 112 of indian Evidence Act. It is submitted that in the facts and circumstances of the case the impugned order passed by the learned Courts below are illegal, incorrect and deserves to be set aside. Learned counsel placed reliance on a decision in the matter of Mrs. Raji Bai Ammal Vs. Mohamed Nathar Sahib, Reported in AIR (29)1942 Madras 251 wherein Madras High Court has observed that in a petition for maintenance by a married woman against a third person as mother and guardian of minor child alleged to have been born out of illegal intimacy with that third person all admissions of paternity by that third person are irrelevant if the woman fails to prove that she and her husband had no access at the time when the child could have been begotten. Further reliance is placed on a decision in the matter of raghavan Pillai Vs. Gourikutty Amma, Reported in AIR 1960 Kerala 119, wherein it was held that in an application under Section 488 by a woman against her paramour for the maintenance of their alleged child, where the husband of the woman is living and their marriage is not dissolved, the woman must prove the non-access of the husband with her during the relevant period. Further reliance is placed on a decision in the matter of Mrs. Raji Bai Ammal Vs. Further reliance is placed on a decision in the matter of Mrs. Raji Bai Ammal Vs. Mohammed Nathar sahib, Reported in AIR (29) 1942 Madras 251 wherein Madras High Court has held that in a petition for maintenance by a married woman against a third person as mother and guardian of minor child alleged to have been born out of illegal intimacy with that third person all admissions of paternity by that third person are irrelevant if the woman fails to prove that she and her husband had no access at the time when the child could have been begotten. ( 4. ) ON the strength of aforesaid decisions learned counsel for petitioner prays that the petition filed by the petitioner be allowed and the impugned order passed by the learned Courts below be quashed. ( 5. ) MR. VS. Chhabra, learned counsel for respondents submit that after recording of evidence learned Courts below has come to the conclusion that the respondent no. 2 is son of the petitioner which is a finding of fact and no interference can be made by this Court while exercising the jurisdiction U/s 482 Cr. P. C. It is submitted that the petition filed by the petitioner be dismissed. ( 6. ) SECTION 112 of Evidence Act reads as under: -Birth during marriage, conclusive proof of legitimacy:-The facts that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be show that parties to the marriage had no access to each other as time when he could have been begotten. ( 7. ) FROM perusal of the record it appears that while awarding the maintenance, the learned Courts below were impressed with the statement of Leelabai wherein she has stated that she is wedded wife of Premlal. The learned Revisional Court was further impressed with the statement of Narayan who was the son of maternal uncle of Leelabai who has supported the statement of Leelabai and the statement of Narayan who also happens to be brother-in-law of Premlal. The learned revisional Court has further observed that why Leelabai has not filed the petition for maintenance against Rajaram with whom the marriage of the respondent was solemnized earlier. The learned revisional Court has further observed that why Leelabai has not filed the petition for maintenance against Rajaram with whom the marriage of the respondent was solemnized earlier. So far as presumption of legitimacy of the son U/s 112 of the indian Evidence Act is concerned, the learned Court below has observed that since it is a summary inquiry for maintenance U/s 125 Cr. P. C, therefore, the petitioner is not entitled for any relief on that account. ( 8. ) WHILE deciding the application for maintenance, it is necessary for the Court to come to the conclusion that Sandeep is legitimate or illegitimate son of the petitioner. So far as Section 112 of the Indian Evidence Act is concerned, the presumption is in favour of Premlal, petitioner. However, it could have been rebutted by the evidence that Rajaram had no access to Leelabai at any time when Sandeep could have been begotten. Such evidence must be strong, distinct, clear satisfactory and conclusive. Proof perse that Leelabai was living with the paramour Premlal is no evidence of non access by Rajaram. It appears that on this issue neither any evidence was adduced by the respondents nor any effective cross examination has been made by the petitioner. ( 9. ) IN the facts and circumstances of the case, the impugned order passed by the learned Courts below holding the respondent No. 2 as son of the petitioner is set aside and the case is remanded back to the learned Trial Court to record the evidence of both the parties on this aspect of the case after framing a point of determination and to re-decide the case afresh. It is made clear that while re-deciding the case, the petitioner shall continue to pay the maintenance as an interim measure as awarded by the learned Trial Court and affirmed by the revisional court. ( 10. ) PARTIES are directed to remain present before the learned Court below on 30/04/2009. ( 11. ) WITH the aforesaid observations, petition stands disposed of. Petition disposed of.