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2012 DIGILAW 275 (GAU)

Sahed Ali (Md. ) v. Mahela Begum

2012-02-29

UJJAL BHUYAN

body2012
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. R. Ali, learned counsel for the petitioner and also heard Mr. A.R. Sikdar, learned counsel appearing for the respondent. The respondent as the first party had filed a petition against the petitioner in the Court of the learned SDJM (S), Barpeta, under Section 125 Cr.P.C. seeking maintenance for her minor daughter, whom she claimed to be the illegitimate child of the petitioner. 2. The said petition was registered as Case No. 254/07. The petitioner, who was arrayed as the second party, contested the said case by filing his written statement, where he denied that the respondent was his wife and also denied that her child was his illegitimate child. 3. The first party examined 3 (three) witnesses to prove her case. On the other hand, the second party adduced the evidence of 2 (two) witnesses. 4. On consideration of the materials on record, the learned Magistrate framed the following two issues for determination:-- 1. Whether the daughter of the first party is the illegitimate daughter of the second party? 2. whether the daughter of the first party is entitled to get maintenance from the second party? 5. After considering the evidence adduced by both the sides, the learned Magistrate took the view that the evidence of both the witnesses of the second party were not trustworthy and could not be relied upon. 6. The learned Magistrate took the view that the minor child of the first party was born to the second party and recorded the finding that the second party i.e. the petitioner herein is the father of the daughter of the first party. 7. Regarding the second issue, the learned Magistrate came to the conclusion that the daughter of the first party is entitled to get maintenance from the second party. 8. By the judgment and order dated 10.07.2009, the learned Magistrate directed the second party to pay monthly maintenance of Rs. 600/- to the minor daughter of the first party from the date of filing of the maintenance petition. 9. The petitioner challenged the aforesaid judgment and order in revision before the learned Sessions Judge, Barpeta. The revision petition was registered as Criminal Motion Case No. 24/2009. 10. The learned revisional Court below by the judgment and order dated 16.09.2010, affirmed the order of maintenance passed by the learned Magistrate and dismissed the said revision petition. 11. 9. The petitioner challenged the aforesaid judgment and order in revision before the learned Sessions Judge, Barpeta. The revision petition was registered as Criminal Motion Case No. 24/2009. 10. The learned revisional Court below by the judgment and order dated 16.09.2010, affirmed the order of maintenance passed by the learned Magistrate and dismissed the said revision petition. 11. The aforesaid judgment of the learned revisional Court below has been challenged by the petitioner before this Court by way of an application under Section 482 Cr.P.C. 12. The learned counsel for the petitioner submits that, there is no evidence at all to arrive at the finding that the petitioner had fathered the minor child of the respondent. He submits that in the absence of any such material, the learned Courts below were not justified to come to the conclusion that the petitioner is the father of the daughter of the respondent Referring to a decision of this Court dated 20.01.2006 passed in Criminal Revision No. 708/2002: Smt. Alia Khatun Vs. Md. Khursed Ali, learned counsel for the petitioner submits that the burden was on the first party to lead evidence in support of her claim. The first party had failed to discharge the burden which was on her and, therefore, the same has vitiated the judgments of both the Courts below. The learned counsel, there five, prays for setting aside the aforesaid judgment. 13. Resisting the above submissions, Mr. Sikdar, learned counsel for the respondent, on the other hand, submits that this petition is not maintainable in as much as though the same has been filed under Section 482 Cr.P.C., the same for all intent and purpose is an attempt at second revision which is statutorily barred. On merits, learned counsel submits that a proceeding under Section 125 Cr.P.C. being of a summary nature, the strict rules of evidence are not applicable in such a case. In support of his contention, the learned counsel relies on the decision of the Apex Court in the case of Smt. Dukhtar Jahan Vs. Mohammed Farooq, reported in AIR 1987 SC 1049 . 14. The submissions of both the parties have received the due and anxious consideration of the Court. 15. Section 125 Cr.P.C. mandates amongst others, a person having sufficient means to maintain even his illegitimate minor child, unable to maintain itself. A proceeding under Section 125 Cr.P.C. is of a summary nature. Mohammed Farooq, reported in AIR 1987 SC 1049 . 14. The submissions of both the parties have received the due and anxious consideration of the Court. 15. Section 125 Cr.P.C. mandates amongst others, a person having sufficient means to maintain even his illegitimate minor child, unable to maintain itself. A proceeding under Section 125 Cr.P.C. is of a summary nature. The order passed on an application under Section 125 Cr.P.C. does not finally deter-mine the rights and obligations of the parties. The said provision is meant to achieve a social purpose and has been enacted to provide speedy relief to a wife or a child, whether legitimate or illegitimate, the underlying object behind Section 125 Cr.P.C. being to prevent destitution and vagrancy. Considering the nature of the proceeding, the learned Magistrate is expected to pass orders on prima-facie satisfaction. It is obvious that the said decision will be a tentative one and, therefore, in any such proceeding, some amount of guesswork would be inevitable. Of course, it should not be unreasonable or fanciful. As indicated above, since the trial Court is to take a prima-facie view of the matter, it is not necessary to enter into the matrimonial or other dispute between the parties in great detail. 16. Coming to the present case, the learned Magistrate on perusal of the evidence on record disbelieved the contention of the second party that he is not the father of the child. On an overall consideration of the materials on record, the learned Magistrate took the view that the second party is the father of the minor child. 17. In the opinion of this Court, on the materials on record, the view taken by the learned Magistrate that the second party is the father of the first party's child is a plausible view and cannot be said to be totally absurd or perverse. The learned Magistrate had further come to the conclusion that the second Party had refused to maintain his daughter and that the daughter is entitled to get maintenance from the second party. 18. On revision, the learned revisional Court below once again examined the evidence on record and, thereafter, recorded the finding that the first party was able to prove that the child was born of the second party. 18. On revision, the learned revisional Court below once again examined the evidence on record and, thereafter, recorded the finding that the first party was able to prove that the child was born of the second party. The learned revisional Court below also recorded the finding that the second party has got land property and he is a businessman. Under such circumstances, the learned revisional Court below affirmed the order of the learned Magistrate and dismissed the revision. 19. The decision of this Court in the case of Smt. Alia Khatun (supra) has to be examined in the factual context of that case. It was a case where the first party claimed maintenance for the illegitimate child contending that the child was born out of commission of an act of rape on her by the second party. Though the maintenance claim was allowed by the trial Magistrate, the same was reversed in revision by the revisional Court. In that case, the second party was tried for an offence of rape, but he was acquitted by the Criminal Court. In the context of that case, this Court found that even a prima-facie case was not made out by the applicant to claim maintenance. 20. The facts and circumstances of the present case are totally different from the facts in the case of Smti. Alia Khatun (supra) and, therefore, I am of the view that the decision in the aforesaid case is not applicable to the facts of the present case. 21. On the other hand, the Apex Court in the case of Smti. Dukhtar Jahan (supra) had disapproved interference with the concurrent findings of the Courts below in a proceeding under Section 125 Cr.P.C. for maintenance of the child. 22. Considering the above, I find no merit in this petition and the same is accordingly dismissed. 23. However, notwithstanding dismissal of this petition, it will be open to the petitioner to seek an appropriate declaration in the Civil Court that the child was not born to him and as such he is not legally liable to maintain it. No cost. Petition dismissed.