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2016 DIGILAW 1072 (GAU)

JAYAWATI DOLEY v. BISWAJIT PEGU

2016-11-29

PARAN KUMAR PHUKAN

body2016
JUDGMENT : Paran Kumar Phukan, J. The revision petitioner herein filed a petition u/s 125 Cr.P.C. before the learned Chief Judicial Magistrate, Dhemaji claiming maintenance for herself and for her minor child from the 2nd party/husband. The learned Trial Court on conclusion of the trial came to the finding that the petitioner was not the legally married wife of the 2nd party/husband. However, he granted maintenance in favour of the child at the rate of Rs. 400/- per month. In appeal the learned Sessions Judge did not even grant maintenance to the child. 2. Heard Mr. B. Borah, learned counsel for the petitioner and Mr. K. Baruah, learned counsel for the respondent. 3. Although the petitioner claimed to be the legally married wife of the respondent but she failed to discharge the burden that she was the legally married wife. According to her, she had love affairs with the respondent and as a result of co-habitation, she became pregnant and when the matter came to the knowledge of her father, he organized a 'mel' in the village where the respondent admitted paternity of the child and she was taken to his house for performing some rituals of the Mising Community. In the house of the respondent she had given birth to a female child. In the meantime, the respondent married another woman and drove her out from his house and having no other alternative she started living in the house of her parents with the child. 4. Both the trial court as well as the revisional Court came to the finding that the petitioner is not the legally married wife of the respondent on consideration of the evidence adduced by the parties. The learned counsel for the petitioner is also not insisting for any maintenance for the petitioner but he has claimed maintenance for the child asserting that due to cohabitation between the petitioner and the respondent the child was born. 5. The learned counsel for the respondent, on the other hand, strenuously contends that the paternity of the child cannot be imposed on the respondent in the absence of any reliable and cogent evidence of cohabitation. 5. The learned counsel for the respondent, on the other hand, strenuously contends that the paternity of the child cannot be imposed on the respondent in the absence of any reliable and cogent evidence of cohabitation. It is also contended that even if it is presumed that the respondent admitted in the village 'mel' that the child was from him, that would not prove that the child was born as a result of cohabitation of the petitioner with the respondent. In support of his submissions he relied on the decision of the Madras High Court in the case of Durairaju v. Neela and Anr. reported in 1976 CRL.L.J. 1507 (1) wherein it has been held that to decide the paternity of the child it is prima facie improper to accept the mere statement of the mother, upon whom lies the burden to establish the paternity of the child. It is true that corroborative evidence is not usually forthcoming and therefore the Magistrate has to rely upon other corroborative circumstances if they are available. But at the same time, it is not correct to say that unless the child is admitted by the putative father to be his illegitimate child, the Magistrate has no power to make an order for payment of maintenance. 6. In an application for maintenance of the child whether legitimate or illegitimate it is the duty of the court to ascertain the paternity in a summary manner and proof beyond doubt is not the criteria for coming to such a decision for ordering maintenance in favour of the child. In Girish Ch. Medhi v. Kalpana Medhi reported in 2002 (1) GLT 295, a Single Judge of this Court, by referring to the judgment of the Apex Court in the case of HE. Rathiram v. Borbora, 1971 (4) SCC 923, has observed that Section 125 Cr.P.C. does not finally determine the status, rights and obligations of the parties and the decision of the criminal court does not operate as a decision in a civil proceeding. In a later case, in the case of Md. Rathiram v. Borbora, 1971 (4) SCC 923, has observed that Section 125 Cr.P.C. does not finally determine the status, rights and obligations of the parties and the decision of the criminal court does not operate as a decision in a civil proceeding. In a later case, in the case of Md. Farook reported in AIR 1987 SC 1049 , the Apex Court observed that in exercise of power u/s 482 Cr.P.C., the Apex Court should sustain the order of maintenance and direct the husband to seek declaration in a civil Court that the child was not born through him and as such he is not legally liable to maintain it. 7. The observations of the Apex Court in the case of Kritikant v. State of Gujarat, 1996 (4) SCC 479 which is relevant is reproduced below :- "while dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation. Having regard to this special object the provisions of Section 125 of the Code have to be given a liberal construction to fulfil and achieve this intention of the legislature." (7) In Dwarka Pd. Satpathy v. Bidyut Prava Dixit, reported in (1999) 7 SCC 675 the Apex Court had the occasion to consider all its earlier decisions in the matter and laid down guidelines in the matter of standard of proof in a proceeding u/s 125 Cr.P.C." 8. Satpathy v. Bidyut Prava Dixit, reported in (1999) 7 SCC 675 the Apex Court had the occasion to consider all its earlier decisions in the matter and laid down guidelines in the matter of standard of proof in a proceeding u/s 125 Cr.P.C." 8. The earlier judgment of this High Court was again reiterated in Nermal Nath v. Maneka Das, 2004 (Supp) GLT 184 wherein at para 6 of the judgment it has been held as under : (6) "This court in a catena of decisions held that the husband who disputes the marriage of paternity of the child is always at liberty to approach the civil court for a declaration to that effect and till such declaration is given in favour of the husband petitioner, he is liable to pay maintenance as per the order of the court below. The trial court as well as the revisional court has held against the petitioner and as such in this second revision, we do not propose to interfere and provide that the husband petitioner shall pay the maintenance as directed by the court below and he will be at liberty to approach the competent civil court for a declaration that he is not the husband of the respondent applicant or that he is not the father of the child concerned and till such declaration is given by the competent civil court, the petitioner shall continue to pay maintenance as directed." 9. In the case in hand, the petitioner categorically stated that she had affair with the respondent for about 6 years and she became pregnant and had given birth to the child. In the village 'mel' he accepted her as his wife. Lending support to her P.W. 3 in his evidence stated that the respondent in the village 'mel' admitted the paternity of the child which is also fortified by her father P.W. 4. It is difficult to find proof of cohabitation in such type of cases and the court has to rely on the statement of the mother to some extent to come to the conclusion regarding the paternity of the child. It is difficult to find proof of cohabitation in such type of cases and the court has to rely on the statement of the mother to some extent to come to the conclusion regarding the paternity of the child. Although on the basis of her evidence paternity cannot be decided but the statement of the respondent made in the village 'mel' as deposed to by the witnesses can be a decisive factor for ordering maintenance u/s 125 Cr.P.C. in view of the observations given by this Court in the earlier cases as well as by the Apex Court. 10. In view of the forgoing discussions the order granting maintenance to the illegitimate child on the basis of the evidence on record need not be interfered with and the learned Sessions Judge, in my considered view, was not justified in rejecting the prayer for maintenance of the child. The petitioner is at liberty to approach the civil court for a declaratory decree that the child was not born through him and he is not liable to maintain the child. 11. In the result, the revision stands allowed. 12. Send down the LCR.