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2014 DIGILAW 335 (CHH)

Gauri Sahu v. Bhupendra Kumar Sahu

2014-09-05

SANJAY K.AGARWAL

body2014
ORDER 1. Instant revision has been preferred by the applicants against rejection of maintenance application filed under Section 125, Cr. P.C. 2. The applicants herein filed an application under Section 125, Cr. P.C. stating inter alia that non-applicant has forcefully committed sexual intercourse with her and on account of that, she became pregnant and gave birth to a male child i.e. applicant No. 2 on 15.02.2005. It is further alleged that offence under Sections 376 and 506 (II), IPC was also registered against the non-applicant and the non-applicant was prosecuted for the aforesaid offences. It is further alleged that thereafter the non-applicant has married with her but refused to maintain as applicants have sufficient means to maintain themselves, and as such, they are entitled for maintenance of Rs. 2000/- and 1000/- respectively from the non-applicant. 3. Non-applicant replied the said application and denied the factum of marriage with applicant No. 1 as well as paternity of applicant No. 2. 4. The family court by its order impugned rejected the application for maintenance holding that applicant No. 1 has failed to prove marriage with non-applicant as well as paternity of applicant No. 2. Against this order, instant revision has been preferred. 5. The revision was admitted on 22.07.2009 for hearing only on the rejection of prayer for grant of maintenance to the applicant No. 2 Likesh Kumar. 6. Shri N.K. Malviya, learned counsel appearing for the applicants would submit that family court was absolutely unjustified in rejecting application for maintenance so far as applicant No. 2 is concerned as there is overwhelming evidence available on record that applicant No. 2 is the illegitimate child of non-applicant, and as such, instant revision deserves to be allowed by setting aside the part of impugned order. 7. On the other hand, Shri Praveen Dhurandhar, learned counsel appearing for the non-applicant opposes the prayer for maintenance and would support the order of family court. 8. I have heard the counsel appearing for the parties and perused the order impugned including records carefully. 9. In order to decide whether applicant No. 2 is entitled for maintenance, it would be appropriate to take into account the evidence adduced by the parties before the family court. 8. I have heard the counsel appearing for the parties and perused the order impugned including records carefully. 9. In order to decide whether applicant No. 2 is entitled for maintenance, it would be appropriate to take into account the evidence adduced by the parties before the family court. AW-1 Gauri Sahu has stated that she developed friendship with non-applicant and on account of their physical relationship, she became pregnant and delivered a male child i.e. applicant No. 2 on 15.02.2005, and thereafter, non-applicant has married with her. In the cross-examination, she has maintained the version that she became pregnant due to physical relationship with non-applicant. PW-3 Puhup Singh Sahu has also stated that he was informed by the applicant No. 1 that she married with non-applicant and became pregnant out of physical relationship with non-applicant. Non-applicant No. 1, cross-examined as NAW-1, has stated that offence under Sections 376 and 506 (II), IPC lodged by the applicant No. 1 was false, and also denied not only factum of marriage but paternity of applicant No. 2 also. NAW-2 Tejram Sahu has stated that community meeting of Sahu Samaj was also held in which paternity of applicant No. 2 was discussed. 10. Applicant has brought birth certificate of applicant No. 2 issued by the Registrar, Death and Birth Registration, Durg, in which fathers name has been shown as Bhupendra Kumar Sahu (Non-applicant herein) whereas, mothers name as Gauri Sahu (Applicant No. 1 herein) 11. Thus, the evidence brought on record clearly indicates that applicant No. 1 developed relationship with non-applicant and out of their physical relationship, applicant No. 1 became pregnant and delivered a male child on 15.02.2005 and offence under Section 376, IPC against the non-applicant was also registered at the instance of applicant No. 1. Community meeting of Sahu Samaj was also held in which paternity of applicant No. 2 was discussed, but the matter could not be resolved as non-applicant and his father did not attend the said meeting. 12. In view of aforesaid analysis, it is clear that applicant No. 2 is the illegitimate child of non-applicant, and by virtue of sub-section 1(b) of Section 125, Cr. P.C. an illegitimate child is entitled for maintenance, if any person having sufficient means neglected or refused to maintain. 13. The Supreme Court in case of Sumitra Devi vs. Bhikan Choudhary, AIR 1985 SC 765 considered Section 125, Cr. P.C. an illegitimate child is entitled for maintenance, if any person having sufficient means neglected or refused to maintain. 13. The Supreme Court in case of Sumitra Devi vs. Bhikan Choudhary, AIR 1985 SC 765 considered Section 125, Cr. P.C. and has held that an illegitimate minor child is entitled to maintenance. Even if the fact of marriage is discarded. 14. The applicant No. 2 being illegitimate son and unable to maintain himself, is entitled for maintenance. Accordingly, the revision in respect of applicant No. 2 is allowed and he is granted monthly maintenance allowance to the tune of Rs. 1000/-w.e.f. 01.10.2011, whereas, the revision filed by the applicant No. 1 stand dismissed. Order accordingly.