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2013 DIGILAW 24 (JHR)

Damodar Thapa v. State of Jharkhand

2013-01-04

H.C.MISHRA

body2013
Order Heard learned counsel for the petitioner and learned counsel for the State as also learned counsel for the private opposite parties. 2. Petitioner is aggrieved by the order dated 12.6.2009 passed by the learned Principal Judge, Family Court, Hazaribagh, in Maintenance Case No. 36 of 2005, whereby the Court below has granted maintenance of Rs. 1,000/- each to the two minor children of the petitioner and has denied the maintenance to the wife of the petitioner. 3. The facts of the case lie in a short compass. The petitioner and the mother of the opposite parties were married according to the Hindu rites sometimes in the year 1989. The wife of the petitioner filed the application under Section 125 of the Cr.P.C., for maintenance of herself and two minor children. living with her, stating that she was the legally wedded wife of the petitioner and out of the wedlock four children were born and ultimately she was driven out of her matrimonial home alongwith her two minor children, as the petitioner had developed illicit relationship with his 'bhabhi'. The claim of the wife was denied by the petitioner in the Court below alleging that she was living in adultery with one Sanjay Bahadur and the two children, for whom the maintenance was claimed by his wife, were born out of her illicit relationship with Sanjay Bahadur. With this dispute between the parties, both the parties entered into the evidence in the Court below. 4. It appears from the impugned order that from the evidence it transpired that Sanjay Bahadur, with whom it is alleged that the wife of the petitioner was having illicit relationship, is the son of the sister of the petitioner's wife. It also appears from the evidence on record that the documents were proved from the side of the petitioner to show that the petitioner's wife was having illicit relationship with Sanjay Bahadur, and she had admitted this fact in one Panchayati and her signature on her statement recorded in the Panchayati was proved and the said statement was also proved in the Court below, though it was claimed by the wife of the petitioner that the said statement was never read over to her. On the other hand, the wife of the petitioner had proved the birth certificate of the youngest child issued by the West Bokaro Hospital, where the child was born on 6.8.2000, and the evidence had been adduced in the Court below to show that the petitioner's wife was admitted for delivery of the youngest daughter by the petitioner himself and the expenses of the delivery were borne by the petitioner. The impugned order shows there is nothing in the cross-examination of the witnesses on this point to discredit their testimony and the Birth Certificate of the child, which was proved as Ext.-1, was not disputed. The Court below has discussed the entire evidence on record from both the sides and has come to the conclusion that the wife of the petitioner namely, Anita Devi was living separately since 4.8.2002 at her own desire and has accordingly, denied the maintenance to the wife of the petitioner. However, the Court below found that two children, one son and one daughter living with their mother, are the legitimate children of the petitioner born out of the wedlock and directed the petitioner to make the payment of maintenance of Rs. 1,000/- per month each to both these children until they attained the age of majority. 5. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal and has placed his reliance on the evidence adduced on behalf of the petitioner in the Court below, and on document relating to the Panchayati, in which it had come that the wife of the petitioner was living in adultery. It is submitted by the learned counsel that the two children living with the wife of the petitioner are not the children of the petitioner and accordingly, the petitioner is not entitled to make any payment of maintenance to both the children. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law. 6. Learned counsel for the private opposite parties, has submitted that there is no illegality in the impugned order, inasmuch as Section 125 of the Cr.P.C. clearly mandates that even the illegitimate children are entitled to maintenance. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law. 6. Learned counsel for the private opposite parties, has submitted that there is no illegality in the impugned order, inasmuch as Section 125 of the Cr.P.C. clearly mandates that even the illegitimate children are entitled to maintenance. Learned counsel accordingly, submitted that, even if on the basis of the evidence on record the Court below has found that the mother was not entitled to maintenance, but the children have been rightly given maintenance by the Court below. Learned counsel accordingly, submitted that there is no illegality in the impugned order worth interference in the revisional jurisdiction. 7. Having heard learned counsel for both the sides and upon going through the record, I find that the Court below has discussed the evidence brought on record by both the partes in detail and has come to the conclusion that the wife of the petitioner was living separately out of her free will since 4.8.2002 and accordingly, she was not entitled to any maintenance. The evidence brought on record, particular1y Ext.1 proved by the wife of the petitioner in the Court below, shows that the youngest daughter was born on 6.8.2000, i.e. much prior to 4.8.2002. It finds mentioned in the impugned order that the entry of the name of the petitioner as father of the female child in Ext.-1 has not at all been disputed by the petitioner. In that view of the matter the Court below has granted the maintenance to the two children, one son and one daughter, holding that these children were born out of the wedlock. It also finds mentioned in the impugned order that there is nothing on record to show that the marriage between the parties was dissolved at any point of time. 8. As such, I do not find any illegality and/or irregularity in the impugned order passed by the Court below, granting maintenance to the minor children of the petitioner born out of wedlock, worth interference in the revisional jurisdiction. At the same time, I find that the Court below has directed the payment of maintenance to children until they attain the age of majority. At the same time, I find that the Court below has directed the payment of maintenance to children until they attain the age of majority. One of the children is a daughter and accordingly, she shall be entitled to maintenance not only till she attains the age of majority, rather she shall be entitled to maintenance until she gets married or she is gainfully employed. 9. In view of the aforesaid discussions, the impugned order elated 12.6.2009 passed by the learned Principal Judge, Family Court, Hazaribagh, in Maintenance Case No. 36 of 2005, is modified to the extent that the opposite party No. 3 Miss Shivani @ Rohani Kumari, who is daughter of the petitioner, shall be entitled to get the maintenance not only till she attains the age of majority, rather she shall be entitled to maintenance until she gets married or she is gainfully employed. 10. With this modification in the impugned order, this application stands dismissed. Let the lower court records be sent back forthwith.