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2013 DIGILAW 1013 (AP)

Potu China Musalaiah v. Potu Yallamanda

2013-11-14

L.NARASIMHA REDDY

body2013
JUDGMENT The respondents herein filed O.S.No.213 of 2010 against the petitioner in the Court of Principal Senior Civil Judge, Narasaraopet, for partition and separate possession of the suit schedule properties. They pleaded that the petitioner is their father, and in spite of repeated requests made by them, he did not effect partition of the suit schedule properties. The petitioner filed a written-statement, opposing the suit. He disputed his relationship with the respondents. According to him, he married the mother of the petitioners, by name, Ramakotamma, but within few years after the marriage, they started living separately, and that he is not the father of the respondents. 2. The petitioner filed I.A.No.849 of 2012, under Section 45 of the Indian Evidence Act, with a prayer to send the blood samples of himself and respondents to a laboratory, to determine the parentage of the respondents. The application was opposed by the respondents. They pleaded that M.C.No.23 of 1995 was filed by them and their mother, in the Court of Additional Junior Civil Judge, Addanki, against the petitioner, and though similar plea, which is raised now; was taken in the M.C also, the trial Court rejected the same. They pleaded that M.C.No.23 of 1995 was allowed on 27-03-1996, and that the order passed therein became final. 3. The trial Court dismissed the I.A., through order dated 10-07-2013. Hence, this revision. 4. Sri Posani Venkateswarlu, learned counsel for the petitioner submits that the petitioner went in illatam to the house of his parents-in-law, and on finding that the atmosphere is not congenial there, returned to the parental home, within a short time. He contends that the petitioner was sure that he is not the father of the respondents, and to establish that, he filed the present application. Learned counsel submits that the finding recorded in the M.C., filed under Section 125 of Cr.P.C., cannot be treated as final, since the proceedings therein are summary in nature, and that the trial Court was not justified in dismissing the application, particularly when the 1st respondent herein as PW-1, stated that he has no objection for sending the blood samples to a laboratory. 5. 5. Sri K.S. Murthy, learned counsel for the respondents, on the other hand, submits that the petitioner raised a totally objectionable plea, telling upon the very status of the respondents, with an oblique motive to deprive them of the share in the joint family properties. He contends that the petitioner raised similar plea in the M.C.No.23 of 1995, and after thorough discussion, the trial Court therein repelled that contention and allowed the M.C. He submits that the maintenance under Section 125 of Cr.P.C. can be awarded against a person only in favour of his wife, or children and the very fact that the maintenance was ordered in favour of the respondents discloses that the petitioner was found to be their father. Learned counsel submits that the contention of the petitioner that the proceedings in maintenance case are summary in nature, is not correct. 6. The respondents herein, claiming to be the son and daughter of the petitioner; filed the suit for partition. The petitioner does not dispute that he married the mother of the respondents. However, his case is that he is not the father of the respondents. It is a serious allegation, and if accepted, would bastardize the respondents. Therefore, the foundation of such a plea must be strong, and the Court cannot permit it to be taken, unless it is fairly acceptable. 7. In case the occasion to raise the plea has arisen for the first time in the present suit, and the petitioner has raised it, it would have certainly needed adequate attention of the Court. That, however, is not the case. Way back in the year 1995, the respondents and their mother filed M.C.No.23 of 1995 in the Court of Additional Junior Civil Judge, Addanki, under Section 125 of Cr.P.C. The petitioner raised the same plea, as in the present suit, about his relationship with the respondents. The trial Court rejected that plea and allowed M.C.No.23 of 1995, through order dated 27-03-1996. 8. The petitioner could have felt grievance about two aspects, viz., the quantum of maintenance, or the very obligation to pay it. Irrespective of the quantum of maintenance ordered by the trial Court, if the petitioner was able to establish that he is not under obligation to pay that at all, on the ground that the respondents are not his children, he was supposed to challenge the findings recorded in the M.C. 9. Irrespective of the quantum of maintenance ordered by the trial Court, if the petitioner was able to establish that he is not under obligation to pay that at all, on the ground that the respondents are not his children, he was supposed to challenge the findings recorded in the M.C. 9. Section 125 of Cr.P.C. is very clear and succinct in its purport. The maintenance can be ordered by a Court against a person only in favour of his wife, legitimate or illegitimate minor children, and parents. While the relationship with the wife comes into existence on account of marriage, the relationship with the children and parents is one, referable to sanguinity, or through blood. The said provision does not recognize any other kind of relationship for placing the person under obligation to pay maintenance. 10. A specific issue was framed in the M.C., and it was answered against the petitioner. The plea that the proceedings under Section 125 of Cr.P.C are summary in nature; cannot be accepted. The reason is that the trial Court must record specific findings, not only about the existence of relationship, but also the aspect of negligence. Apart from that, the necessity of the persons, claiming maintenance, on the one hand, and the financial status of the person, against whom it is claimed, on the other hand; are required to be determined succinctly. That, in turn, needs recording of evidence. When such is the state of affairs, the proceedings cannot be said to be summary in nature. 11. The very fact that the petitioner was made to pay maintenance to the respondents 1 and 2 discloses that he was treated as their father, and by permitting the order to become final, the petitioner had admitted that relationship. He cannot be permitted to re-open the same, when the suit for partition was filed. The trial Court has taken correct view of the matter. 12. Whatever may be the permissibility for a party to raise same questions in different proceedings, the one, relating to parentage cannot be permitted to be pleaded, repeatedly. That would tell upon the status of the persons, whose parentage is disputed. 13. The C.R.P is accordingly dismissed. 14. The miscellaneous petition filed in this C.R.P shall also stand disposed of. There shall be no order as to costs.