Jammu & Kashmir High Court
Ahmad Ullah Kundji vs Mst. Humaria on 4 June, 1986
Equivalent citations: 1987CRILJ681
ORDER M.L. Bhat, J.
1. Trial Court of Judicial Magistrate, City Munsiff, Srinagar has granted maintenance to the respondent from the petitioner under the provisions of Section 488, Cr.P.C. at the rate of Rs. 200/- per month from the date of passing of the order i.e. from 23-4-1983. The petitioner filed a revision petition before the Additional Sessions Judge, Srinagaragainst the order of the trial Magistrate and the Additional Sessions Judge, Srinagar has made a reference to this Court with the recommendation that the respondent was not the daughter of the petitioner and as such she was not entitled to be maintained by the petitioner herein and the order is recommended to be quashed.
2. learned Counsel for the parties argued this case for a considerable time. A preliminary objection was raised by Mr. Z. A. Shah appearing for the respondent to the effect that the findings of fact cannot be interfered with by this Court in revision. Mr. Qayoom has submitted these findings of fact are perverse and illegal, therefore revisional Court has the power to go into this finding to the extent of discovering as to whether respondent's mother and the petitioner were at all married or not. If their marriage is not proved, the respondent cannot be held to be daughter of the petitioner. He has also submitted that the order Under Section 488, Cr.P.C. is not appealable, therefore a duty is cast on the revisional Court to examine the order and its legality. He has referred to the provisions of Section 439, Cr.P.C. to indicate that revisional Court has the same powers which are vested in a Court of appeal. On the terms of the said section it is submitted that revisional Court can go into the question of facts also in appropriate cases.
3. It is true that revisional Court has not to examine the question of fact which fact is established on evidence. That would mean that revisional Court cannot scan or appreciate the evidence if its appreciation is valid. But if the appreciation of evidence is perverse or illegal, or if the trial Court has based its order on an evidence which is not admissible, the revisional Court may in such cases examine the evidence and record the impropriety or illegality committed by the trial Court. If the paternity of a child is denied and the trial Court gives a finding on the said question which finding is said to be based on no evidence or on evidence which is not admissible, the revisional Court may in appropriate cases examine the evidence for the limited object of finding out as to whether the appreciation made by the trial Court was valid or not.
4. In the present case also the trial Court has based its finding on evidence about the marriage of the respondent's mother and the petitioner and out of the marriage respondent is said to have been born. Therefore, it is necessary to examine as to whether there is any basis for holding that the petitioner had married the mother of the respondent. Jt was the respondent's case that she was born out of the wedlock, of petitioner and respondent's mother and after that petitioner had divorced the mother of the respondent. The marriage is said to have taken place somewhere in 1965 and somewhere in May, 1970 the petitioner is said to have divorced the mother of the respondent and the respondent has remained with her mother who was required to be maintained and maintenance was claimed on account of her food, clothing and education. The petitioner was said to be an Govt. employee serving as a doctor in the Medical Department who was having sufficient means to maintain the respondent, but had failed to maintain the respondent, therefore application Under Section 488, Cr.P.C. was filed. Petitioner in his objections had denied any connection whatsoever with the mother of the respondent and had denied having either legitimate or illegitimate connections with the respondent's mother. Consequently petitioner's case is that he is not bound to pay maintenance to the respondent.
5. Some evidence is led by both the parties in respect of the paternity of the respondent who is a female and was said to be unable to maintain herself and was living with her mother. In this background the trial Court gave her the maintenance and the Additional Sessions Judge, Srinagar recommended for quashing of the said order.
6. Mr. Qayoom argued that where the paternity of a child is denied, it is imperative for a Magistrate to give a finding on the question of paternity first and thereafter pass an order Under Section 488, Cr.P.C. His contention is that on uncorroborated testimony of a child or his mother, Magistrate cannot assume that there was cogent proof about the marriage of the parties out of which the child was born. There must be a finding on marriage and the finding must be based on unimpeachable evidence about the fact of marriage having taken place between the couple of which the child is born and if that is proved, the child can claim maintenance Under Section 488, Cr.P.C. If the marriage itelf is disputed and not proved, the child is not entitled to be maintained by the father. In support of his contention he has referred to Bhaskaran v. Kunhipennu , Nand Lai Misra v. Kanhaiya Lai Misra , Sumitra Devi v. Bhikan Choudhary and A. T. Lakshmi Ambalam v. Andiammal AIR 1938 Mad 66 : 1938-39 Cri LJ 228.
7. From the reading of the aforesaid authorities, it appears that it is necessary for a Magistrate to hold an enquiry into the fact of paternity of child whose claim of payment of maintenance is sought to be enforced. If the paternity of a child is denied by the father, the Magistrate is bound to hold an enquiry into the proceedings and such an enquiry cannot be held at the back of the father before issuance of a notice to him in the proceedings. If the marriage between the parties out of which the child is born is denied or if the marriage is held to have not taken place according to the law applicable to the parties, the matter should be referred back to the tial Court for holding such an enquiry.
8. Mr. Z. A. Shah on the other hand submitted that in a proceeding Under Section 488, Cr.P.C. inquiry about the paternity of a child or about the validity of marriage cannot be effectively conducted for it needs a thorough probe which can be held only in a civil suit and not in a criminal proceedings which are of summary nature. He has relied on the statement of Mufti Jalal-ud-Din who is said to have executed the divorce deed between the parties and has argued that divorce would presuppose the marriage between the petitioner and respondent's mother which was proved by the copy of the divorce deed as also by the statement of the said witness.
9. It is also urged by the respondent that proceedings Under Section 488, Cr.P.C. are of summary nature for which speedy remedy is to be provided and in such proceedings the complicated question of paternity and validity of marriage cannot be gone into. This question may be appropriately considered in a regular civil suit and till that is done, respondent is not to be denied the maintenance granted to her by the trial Court. In disputes like the present one it is to be found out whether there was a marriage between the petitioner and respondent's mother and whether they lived as husband and wife. If there was no marriage, whether there were chances of petitioner having access to respondent's mother who are said to have been serving as a doctor and nurse in the hospital at the time when it is alleged that marriage between them was contracted. If they had the access to each other for cohabitation while remaining together and if the respondent was born out of that cohabitation, she will be termed as illegitimate child of the petitioner and even then she will be entitled to grant of maintenance. However, on the basis of evidence on record it is very difficult to hold that respondent was illegitimate child of the petitioner and the revisional Court has rightly refused to enter into that arena. The only question that survives for consideration is as to whether the petitioner is the father of the respondent. This fact needs to be enquired into by the trial Magistrate for purposes of Section 488 Cr.P.C.
10. The trial Magistrate has relied on a copy of divorce deed alleged to have been executed by Mufti Jalal-ud-Din, Saddar Mufti, Jammu and Kashmir on 16-5-1970 between the petitioner and respondent's mother. This deed has not been proved in accordance with the Evidence Act. Original of this deed is said to be in possession of the petitioner and this deed is entered in the registers of its scribe. The said register should have been produced in the Court and this copy should have been compared with the entries in the register which is maintained by the said Mufti Jalal-ud-Din. The original register is also said to have been maintained in normal course of business by Mr. Mufti Jalal-ud-Din. If the original was in possession of the petitioner, then the register could be proved by producing the same in the Court. The register is alleged to contain the signatures of the parties to this deed as also of some witnesses. If the divorce was proved in accordance with the Evidence Act, the performance of actual marriage between the parties may pale into insignificance because as husband and wife they are said to have gone to the Saddar Mufti and have got the divorce deed scribed. But before this divorce deed could be acted upon, it was necessary to prove the same as required by law. It was not original, but it was copy, therefore, it was necessary for the party relying on it to prove it as required under the Evidence Act.
11. Mr. Qayoom has criticized the evidence and tried to show that there are contradictions in the evidence about the factum of marriage between the petitioner and respondent's mother and about the age of the respondent. According to him these contradictions are material and would indicate that no marriage actually had taken place between the petitioner and respondent's mother. I have noted the contradictions in the evidence, but those contradictions do not suggest that marriage between the petitioner and respondent's mother could not have taken place, though there is no actual proof of marriage between the petitioner and respondent's mother. Respondent's mother has herself come into the witness box and stated that while serving as a Nurse she married the petitioner who was a doctor. There is no improbability in the statement of the respondent's mother, but that probability cannot be acted upon unless it is translated into reality. That would mean that there w,as some proof that the petitioner and respondent's mother had lived at some stage during which the respondent was born, as husband and wife. A copy of the divorce deed if proved in accordance with law may prove this fact and the marriage between the petitioner and respondent's mother may be held to have taken place and that may entitle the respondent to seek maintenance from the petitioner.
12. It is unfortunate that the respondent has suffered at the altar of some mystry which shrouds the marriage of the petitioner and respondent's mother. Either this is due to clash of egos of the spouse whom the respondent claims to be her parents or due to the bitter relations between the spouse. At the same it is to be borne in mind that if the respondent is not the daughter of the petitioner, he cannot be burdened with the liability of payment of maintenance to the respondent. His liability arises out of an obligation as a father to maintain the respondent till she is unable to maintain herself. If he is able to prove that he is not the father of the respondent or respondent is not his legitimate or illegitimate child, he cannot be saddled with the responsibility of paying the maintenance to the respondent. Any doubtful finding about the paternity of the respondent or about her being not the daughter of the petitioner will have dangerous consequences for the respondent who is a girl. It will not only cast stigma on her career but it may have the effect of scandalising her in the society and she may be treated as an out caste of the society to which she belongs. The question may often arise as to who cohabited with her mother and did the mother allow herself to be taken for ride for the sexual enjoyment of persons who are not known to the respondent. This type of scandal or defamation may perpetually damage the reputation of the respondent as also of her mother.
13. The trial Magistrate for purposes of deciding the question of payment of maintenance is definitely entitled to decide about the parentage also, but that decision shall be always subject to a decision which may be given by a Civil Court, as and when Civil Court is asked to decide the question by any of the parties to the marriage out of which the child is born and whose rights are sought to be enforced Under Section 488, Cr.P.C. It is not necessary that the Civil Court should first decide the paternity and on that decision would depend the question of payment of the maintenance. Question that may arise in such a situation would be as to what would happen to the minor till the Civil Court decides the matter of paternity and till then who will maintain the child who has become the object of wrath of the parents and object of ridicule in the society. To meet this lype of exigency,it is therefore necessary that the Magistrate having jurisdiction Under Section 488, Cr.P.C. should decide the matter of paternity subject to the decision of the Civil Court and order payment of maintenance in case he holds that there is proof adduced before him regarding paternity and in case he holds father liable to pay maintenance to its child. If such a liability is not discernible from the record, he can very well pass an order to that effect. But if the child, unable to maintain itself, claims maintenance from a person as father and the father denies that liability on the ground that the child was not his, the enquiry must be thorough and the finding of the trial Court must be based on evidence.
14. The recommendation of the learned Sessions Judge that the order of the trial Court be quashed on the ground that the petitioner was not father of the respondent cannot be accepted in its entirety nor can the findings of the trial Magistrate granting maintenance to the respondent at the rate of Rs. 200/- per month be accepted in its entirety. The matter needs a further probe and it cannot be shelved as desired by the Additional Sessions Judge, Srinagar. Therefore the right of the respondent and the contention of the petitioner are required to be further investigated by the trial Court. Even an illegitimate child is entitled to get maintenance provided it is proved that such child was born during the period when his/her mother had cohabitation or chance of cohabitation with a person from whom the maintenance is claimed. In this case, as already stated there are preponderant probabilities that petitioner and respondent's mother may have, during the course of their employment in one hospital, cohabited with each other, if their marriage is not proved and the child i.e. respondent may have born from that union. However this will be for the trial Court to find out. The primary duty of the trial Court will be to find out as to whether divorce was evidenced by the deed and that deed must be permitted to be proved in accordance with the Evidence Act. For that purpose the trial Court will again permit the respondent-child to summon the Saddar Mufti Jalal-ud-Din along with the register and permit the respondent herein to prove the deed of divorce, its comparison with the register should be made. The burden will thereupon shift to the petitioner to disprove the deed. Once the deed of divorce dt. 16-5-1970 is proved in accordance with the Evidence Act, it will be for the petitioner herein to establish that the deed was not true or valid. If its execution is proved and it is said to have been executed by the petitioner, that will clinch the issue for purposes of proceedings Under Section 488, Cr.P.C. and in case the petitioner feels aggrieved of that order, he may challenge the factum of marriage as also the question of his being father of the respondent in a competent civil Court and thereafter the Magistrate will be competent to cancel his own order under the provisions of Section 489, Cr.P.C. But till then the child is to be maintained by the petitioner herein. The proceedings are therefore sent back to the trial Magistrate with a direction to proceed in the matter in the light of the observations as laid down hereinabove. The trial Court will after recording the evidence of Saddar Mufti Jalal-ud-Din allow the parties to produce such evidence as they may like to produce and consider the question of payment of maintenance to the respondent herein in the light of the evidence which is already on the record and which may be brought on record in pursuance of this order. The order of the trial Court need not to be set aside in this view of the matter, but requires to be modified till it finally decides the case. The respondent shall receive Rs. 100/- per month from 23-4-1983 from the petitioner till the disposal of the proceedings Under Section 488, Cr.P.C. by the trial Court. If the trial Court decides that the respondent is the daughter of the petitioner, the balance amount of Rs. 100/- per month with effect from 23-4-1983 shall be recoverable from the petitioner. He shall also be liable to pay maintenance at the rate of Rs. 200/- P.M. from the date of the order of the trial Magistrate. The findings of the trial Court on the paternity of the child will not be conclusive, but will be only subject to the decision of the Civil Court, if any decision is given by the Civil Court in a regularly constituted suit filed by the petitioner or respondent's mother, as the case may be. The parties through their counsel are directed to appear before the trial Magistrate on 16th June, 1986.