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Madhya Pradesh High Court · body

2010 DIGILAW 504 (MP)

Chandra v. Sanjay Chouhan Criminal

2010-04-30

N.K.MODY

body2010
ORDER 1. Being aggrieved by the order dated 4.12.2008 passed by II Additional Family Court, Indore in Criminal Case No. 785/2008 whereby the petition filed by the petitioners for grant of maintenance was dismissed, the present petition has been filed. 2. Short facts of the case are that petitioners filed a petition for grant of maintenance on 4.8.2008 under section 125 of CrPC wherein it was alleged that petitioner No.1 is the wife of respondent and the marriage of petitioner No.1 was solemnized with respondent on 13.5.2006. It was alleged that at the time of marriage certain articles were given as gift by the parents of petitioner No.1 as per their status. It was alleged that petitioner No.1 was kept well by the respondent for a period of 4 months approximately and thereafter petitioner No.1 was subjected to cruelty by her maternal aunt-in-law, etc. and on account of demand of dowry she was abused. It was alleged that upon refusal by petitioner No.1 she was threatened for divorce and also for dire consequences. Further case of the petitioner No.1 was that on 13.1.2001 respondent dropped the petitioner No.1 at her parents house on the eve of Sankranti and thereafter respondent never turned up to take her back. It was alleged that petitioner No.1 was blessed with a daughter who is petitioner No.2 herein on 28.11.2007. It was alleged that for their needs petitioners are having no means while respondent is a man of means and is earning Rs. 8,000/- per month. It was prayed that the petition filed by the petitioners be allowed and the maintenance be awarded @ Rs. 5,000/- per month. 3. The petition was contested by the respondent by filing the reply wherein all the allegations made in the petition were denied. It was denied that petitioner No. 1 was subjected to cruelty on account of demand of dowry. On the contrary it was alleged that character of petitioner No.1 is doubtful as petitioner No.1 was in contact with one Santosh who was not the relative of petitioner No.1. It was alleged that petitioner No.1 was receiving the phone calls from Santosh at the residence of Latif Bhai. It was alleged that upon asking her not to receive the phone calls of Santosh at the residence of Latif Bhai, petitioner No.1 was abusing and threatened for committing suicide. It was alleged that petitioner No.1 was receiving the phone calls from Santosh at the residence of Latif Bhai. It was alleged that upon asking her not to receive the phone calls of Santosh at the residence of Latif Bhai, petitioner No.1 was abusing and threatened for committing suicide. It was alleged that petitioner No. 1 left the matrimonial house on 13.1.2007 and thereafter petitioner No.1 never came in contact with respondent. It was alleged that on 3.2.2007 parties entered into an agreement whereby it was decided that petitioner No.1 and respondent shall live separately and the agreement was executed in the presence of parents of petitioner No.1. It was alleged that petitioner No.1 is not a lady of good character. It was alleged that petitioner No.1 is living an adulterated life. It was alleged that since the petitioner No.1 delivered a daughter on 28.11.2007 while as per agreement dated 3.2.2007 petitioner No.1 is not living with the respondent, this itself shows that the petitioner No.2 is not the legiti:-1ate child of petitioner No.1 from the respondent. It was alleged that in the facts and circumstances of the case respondent is not liable for payment of maintenance. It was prayed that the petition filed by the petitioners be dismissed. After holding summary inquiry learned trial Court dismissed the petition filed by the petitioners against which the present petition has been filed. 4. Mrs. Anita Gour learned counsel for the petitioners argued at length and submit that the impugned order passed by learned trial Court is illegal, incorrect and deserves to be set-aside. It is submitted that in the facts and circumstances of the case, there was no justification in holding that the petitioner No.1 is living a life in adultery. It is submitted that burden to prove was on the respondent that the petitioner No.1 is living a life in adultery but there was no evidence on the basis of which it could have been found proved. It is submitted that even if it is assumed that petitioner No.1 was living in adultery, then too, maintenance could not have been refused to petitioner No.2. It is submitted that even if it is assumed that petitioner No.1 was living in adultery, then too, maintenance could not have been refused to petitioner No.2. Learned counsel placed reliance on a decision in the matter of Maganlal Budhaiabhai Patel v. Bai Dahi AIR 1971 Gujrat 33 wherein Gujrat High Court had a occasion to take into consideration the word "living in adultery" and observed that living in adultery means following an almost continuous course of adulterous conduct and not ~v a single lapse from virtue, one or two lapses of virtue would no doubt be acts of adultery but are insufficient to show that the respondent was "living in adultery" and therefore, the appellant has to prove a course of conduct over some period with repetition of acts of adultery, with one of more persons. With the use of the continuous present tense for attracting the operation of the phrase "is living in adultery" it would not be enough for the spouse who was living in adultery for some time in the past and it has to be shown that the period during which the wife was living an adulterous life was so related, in proximity of time to the filing of the petition, that one can reasonably infer that the petitioner has a fair ground to believe, about the time of the filing of the petition that the spouse was living in adultery. Further reliance is placed on a decision of Hon 'ble apex Court in the matter of Smt. Dukhtar Jahan v. Mohammed Farooq AIR 1987 SC 1049 wherein the child born within 7 months time after marriage and there was no claim that it was prematurely born Hon'ble apex Court held that on the sole ground that the child had been born in about 7 months' time after the marriage it could not be concluded that the child should have been conceived even before the marriage. Giving birth to a viable child after 28 weeks' duration of pregnancy is not biologically an improbable or impossible event. The refusal of the claim for maintenance for the child was therefore improper. It was also against the rule of evidence contained in S. 112 of the Evidence Act. The wife was a rustic and illiterate woman and as such her opinion that the child was not born prematurely could suffer from error of judgment. The refusal of the claim for maintenance for the child was therefore improper. It was also against the rule of evidence contained in S. 112 of the Evidence Act. The wife was a rustic and illiterate woman and as such her opinion that the child was not born prematurely could suffer from error of judgment. Further reliance is placed on a decision in the matter of Chaturbhuj v. Sita Bai 2008 (2) JLJ 70 = (2008) 2 SCC 316 wherein Hon'ble apex Court has observed that where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under section 125 CrPC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. The wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself' does not mean that the wife must be absolutely destitute before she can apply for maintenance under section 125 CrPC. On the strength of aforesaid position of law learned counsel for the petitioners submit that the petition filed by the petitioners be allowed and the impugned order passed by learned trial Court be set -aside. 5. Mr. Arvind Gokhale learned counsel for the respondent submits that after taking into consideration all the facts and circumstances of the case and keeping in view the fact that petitioner No.2 is not the legitimate son of the respondent, learned trial Court has rightly rejected the petition filed by the petitioners. It is submitted that undisputedly the petitioner No.2 born on 28.11.2007 while the petitioner No.1 was living separately w.e.f 11.1.2007. It is submitted that in the facts and circumstances of the case learned trial Court has rightly held that the petitioner No.2 is not the son of the respondent. It is submitted that respondent has also filed a suit for declaration about the legitimacy of petitioner No.2. It is submitted that in the facts and circumstances of the case learned trial Court has rightly held that the petitioner No.2 is not the son of the respondent. It is submitted that respondent has also filed a suit for declaration about the legitimacy of petitioner No.2. Learned counsel placed reliance on a decision in the matter of Hargovind Soni v. Rarndulari 1986 MPLJ 105 wherein this Court has held that proof of adultery generally based on circumstantial evidence. Further reliance is placed on a decision in the matter of Rajendra Agrawal v. Smt. Sharda Devi 1993 JLJ 649 = AIR 1993 MP 142 wherein while dealing with in a case of adultery, this Court observed that solitary instance of voluntary sexual intercourse by wife with other person is enough for grant of decree of divorce. It is submitted that in view of the aforesaid position of law and keeping in view the evidence on record the findings of learned trial Court is in accordance with law which requires no interference. It is submitted that the petition filed by the petitioners be dismissed. 6. Section 112 of Evidence Act reads as under: Birth during marriage. conclusive proof of legitimacy:- The fact 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 can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. 7. In the matter of Premlal v. Leelabai, 2010 (2) MPHT 126 this Court has held that presumption of legitimacy of the son, is rebut-table for which evidence must be strong, distinct, clear, satisfactory and conclusive. In the matter of Poorti @ Usha Sharma (Smt.) v. Vinay Kumar 2009 (3)JLJ 33 = 2010 (2) MPHT 166 Divisional Bench of this Court has held that the words "conclusive proof' occurred in section 112 of the Act, which is defined under section 4 of the Act that when one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it: 8. In the present case reliance is placed by the respondent on the discharge card Ex. P/1 of the petitioner which was issued by M.Y. Hospital, Indore. In Ex. P/1 while mentioning menstrual history, last menstrual period is mentioned as 13.2.07. In the evidence it has come that the petitioner was living separately with the respondent w.e.f. 13.1.07, while the petitioner gave birth to the child on' 28.11.07, therefore, it is submitted that it is proved that the respondent is not father of the petitioner. 9. From perusal of the record it appears that respondent and the petitioner has appeared in evidence and no other evidence was addued by any of the parties. In the opinion of this Court learned trial Court has not taken into consideration various important aspects of the case, which are as under:- i. Petitioner in her examination-in-chief has stated that after giving the birth to child intimation was sent to her matrimonial house and her maternal aunt-in-law and sister-in-law (Mami & Nanad) came to see newly born baby. There is no cross-examination on the petitioner in this regard. Thus, this piece of evidence is the uncrossed testimony of the petitioner ii. Allegation against the petitioner No.1 was that the petitioner No.1 is having illicit relation with one Santosh, for whom the petitioner has stated that Santosh is like her brother and is married having three children. There is no cross-examination on this part of the statement as well. iii. Only allegation against the petitioner is that the petitioner No.1 was receiving phone calls from Santosh, which were being received by the petitioner No.1 at the house of the neighbours of the respondent. No member of the family and the respondent could courage to come in witness box to say that the petitioner No.1 was living in adultery and the petitioner No. 2 is not legitimate son of the petitioner No.1. 10. It is settled position of law that the presumption of legitimacy is a presumption of law. When a child is born out of a wedlock, there is a presumption in favour of his legitimacy and presumption of legitimacy largely depends on the presumed fact that the parties to a marriage have necessary access to each other. 11. 10. It is settled position of law that the presumption of legitimacy is a presumption of law. When a child is born out of a wedlock, there is a presumption in favour of his legitimacy and presumption of legitimacy largely depends on the presumed fact that the parties to a marriage have necessary access to each other. 11. Since strong, distinct, clear, satisfactory and conclusive evidence has not been adduced by the respondent to rebut the presumption, then only on the basis of the fact that the petitioner has stated in her statement that petitioner lived with the respondent lastly in the month of January, 2007 and then there was no relationship between them, it cannot be said that the petitioner No.2 is not the ligitimate son of the respondent, specially when the petitioner No.1 is not much educated. In the opinion of this Court, where the legitimacy of a child is questioned, it is the duty of the Court to examine the evidence with a view that the evidence adduced is enough to rebut the presumption. The Court has to keep it in mind the net result because it is a question of the status of son/daughter. The moment Court decides that child is illegitimate, he will be treated as bastard in the society. 12. In the present case, petitioner No.1 is woman of category of below poverty line. The petition could only be filed by the petitioner through legal aid committee with a delay of 204 days. In spite of making all the efforts Smt. Anita Gaur who is counsel for the petitioners could not communicate the petitioner No.1 to remain present in Court at the time of hearing in spite of giving number of adjournments. Counsel for the petitioners submit that the she met petitioner No.1 lastly when the petition was filed and she was having hardly any money to survive. 13. In the facts and circumstances of the case and after reappreciation of evidence on record, this Court is of the view that the learned Court below committed error in dismissing the petition filed by the petitioners and also in holding that the petitioner No, 2 is not the legitimate child of the respondent. 14. So far as amount of maintenance is concerned, petitioners have stated that the income of respondent is Rs. 14. So far as amount of maintenance is concerned, petitioners have stated that the income of respondent is Rs. 7-8 thousand per month, while respondent has stated that the respondent is driver by profession and is earning Rs.1,800/per month. Statement of respondent is unbelievable. Nowadays minimum income of a driver is Rs. 4-5 thousand per month. 15. In the facts and circumstances of the case, petition filed by the petitioners is allowed and the impugned order passed by the learned Court below is set aside holding that the petitioners are entitled and the respondent is liable to pay maintenance @ Rs. 1,500/- per month w.e.f. 4.12.08 when the trial Court dismissed the petition. Since the amount of arrears is sizable, therefore, it is directed that respondent shall pay a sum of Rs. 2,000/- per month, out of which Rs. 500/- shall be towards arrears. In case respondent fails to pay the amount regularly, then the petitioners shall be entitled to take 1.ppropriate steps to recover the entire amount. 16. With the aforesaid observations, petition stands disposed of.