Calcutta High Court
Manik Chandra Ankure vs State Of West Bengal And Anr. on 28 August, 2003
Equivalent citations: II(2004)DMC468
JUDGMENT Debiprasad Sengupta, J.
1. In the present revisional application the petitioner has challenged an order dated 10.5.2002 passed by the learned Additional Sessions Judge, 2nd Court, Suri, Birbhum in Criminal Motion No. 116/2001 thereby setting aside the judgment and order dated 5.9.2001 passed by the learned Chief Judicial Magistrate, Suri, Birbhum in Misc. Case No. 48/1998 under Section 125 of the Code of Criminal Procedure.
2. One Smt. Shila Ankure filed an application under Section 125 of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Suri, Birbhum claiming maintenance of Rs. 1,500/- for herself and Rs. 1,000/- for her minor son. The present petitioner/husband entered appearance and contested the said proceeding of filing a reply to show cause denying all the allegations made in the application under Section 125 of the Criminal Procedure Code in the said proceedings under Section 125, Cr.P.C. The present petitioner/husband made an application before the learned Magistrate praying for holding D.N.A. test to determine the paternity of the child. The learned Magistrate by his order dated 5.9.2001 directed such D.N.A. test to be held to determine the paternity of the child. Challenging such order a revisional application was preferred by the wife before the learned Sessions Judge and the learned Additional Sessions Judge, 2nd Court, Birbhum by the impugned order allowed such revisional application and set aside the order dated 5.9.2001 passed by the Chief Judicial Magistrate, Suri as aforesaid. The petitioner has come up before this Court in revision challenging the order passed by the learned Additional Sessions Judge.
3. It is the contention of the learned Advocate of the petitioner that the impugned order suffers from serious illegality inasmuch as unless the paternity of the child is determined by D.N.A. test the petitioner/husband will be seriously prejudiced. The learned Advocate submits that if the paternity of the child is determined then he would not be liable to pay any maintenance for the wife as also for the said child. In support of his contention the learned Advocate relies upon a judgment of the Hon'ble Supreme Court reported in Smt. Kamti Devi and Anr. v. Poshi Ram, I . From a reading of the said judgment it appears that the husband filed a Civil suit for a decree declaring that he is not the father of the child as he had no access to the appellant Kamti Devi during the period when the child would have been begotten. The Trial Court on the basis of admitted facts that the parties are spouses of a valid and subsisting marriage, relied on the conclusive presumption mentioned in Section 112 of the Evidence Act. The Trial Court held that the husband failed to prove that he has no access to his wife Kamti Devi during the relevant period. Accordingly, the suit was dismissed. But the first Appellate Court after re-evaluating the entire evidence found that the husband succeeded in discharging the burden for rebutting the presumption by proving that he had no access to the mother of the child during a very long stretch of time covering the relevant period. On such finding the first Appellate Court allowed the appeal and decreed the suit declaring, that the plaintiff is not the father of the child. The High Court refused to interfere with the aforesaid finding in the second appeal on the premise that "the question whether Roshan Lal is the son of the plaintiff is a pure question of fact which calls for no interference by the Court in the second appeal under Section 100 of the Code of Criminal Procedure." Challenging such order an appeal was preferred before the Hon'ble Supreme Court and it was held by the Hon'ble Supreme Court that the conclusion was reached on the strength of the evidence adduced by both sides and the first Appellate Court was satisfied in a full measure that the plaintiff husband had no liberty whatsoever to have liaison with the defendant mother. The finding thus reached by the first Appellate Court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such finding. The appeal was accordingly dismissed.
4. From a reading of the aforesaid judgment it appears that a civil suit was filed by the husband for a decree declaring that ho is not the father of the child but the present revisional application relates to a proceeding under Section 125, Cr.P.C. Section 125, Cr.P.C. provides a swift remedy against any person who despite means neglects or refuses to maintain his wife and other dependents mentioned in the section. The primary object of the section is to prevent starvation and vagrancy. Section 125, Cr.P.C. prescribes a summary procedure. The finding in such a proceeding are not final and the parties can agitate their rights In the Civil Court. In my considered view the said judgment is not at all applicable in the facts and, circumstances of the present case. If the husband wants to challenge the paternity of the child he is always at liberty to file a suit before the appropriate Civil Court. If the finding of the Civil Court goes in favour of the husband he can always file application before the learned Magistrate for modification and/or cancellation of the order of maintenance, if any, passed by the learned Magistrate.
5. Learned Advocate appearing for the opposite parties submits that the impugned order does not suffer from any illegality. The learned Advocate submits before this Court that marriage between the parties was solemnised on 8.3.1995. The child was born on 12.1.1998. In the year 1998 application under Section 125, Cr.P.C. was filed by the wife. After a lapse of more than three (3) years the husband/ petitioner filed an application praying for D.N.A. test of the child challenging the paternity of the child. According to the learned Advocate of the opposite party this is nothing but an attempt on the part of the husband to avoid payment of maintenance. It is further contended that the primary object of the section is to prevent starvation and vagrance. Section 125, Cr.P.C. provides a summary procedure and the Court will not be justified in suspecting the chastity of the wife merely because the husband casts aspersion on her chastity when opposing her application for maintenance. In support of this contention the learned Advocate of the O.P. relies upon a judgment of the Hon'ble Supreme Court reported in Gautam Kundu v. State of West Bengal and Anr., II (1993) DMC 162 (SC)=AIR 1993 SCC 2295. From a reading of the said judgment it appears that the wife filed a petition under Section 125, Cr.P.C. before the learned C.J.M., Alipore for herself and her child. The learned Magistrate awarded a sum of Rs. 300 per month for the wife and Rs. 200 for the child. Thereafter the petitioner filed a petition for blood group test of the second respondent and the child, In that proceeding the petitioner/husband disputed the paternity of the child and prayed for 'blood group' test of the child to prove that he was not the father of the said child. Such application was dismissed and challenging such order a revision was preferred before the High Court. Dismissing the revision it was held that Section 12 of the Evidence Act provides that where during the continuance of a valid marriage a child is born, that is conclusive proof about the legitimacy, This section would constitute a stumbling block in the way of the petitioner getting his paternity disproved by 'blood group' test. The Hon'ble Supreme Court after considering an early Three-Judge Bench decision in Smt. Dukhtar Jahan v. Mohammed Farooq, , dismissed the special leave petition upholding the impugned order of the High Court and confirming the order of the Additional Chief Judicial Magistrate, Alipore in rejecting the application for blood test. While deciding the said case Hon'ble Supreme Court was also of the view that the only purpose of such application is nothing more than to avoid payment of maintenance without making any ground to have recourse to the test.
6.I have heard the learned Advocates of the respective parties. I have also gone through the impugned order passed by the learned Additional Sessions Judge as also the order passed by the learned Magistrate. In my considered view, the impugned order passed by the learned Additional Sessions Judge does not suffer from any illegality. As I have already pointed out earlier Section 125, Cr.P.C. provides a swift remedy against any person who despite means neglects or refuses to maintain his wife and other dependents. The primary object of the section is to prevent starvation and vagrancy. Section 125, Cr.P.C. provides a summary procedure. The findings are also not final and the parties can agitate their rights in the Civil Court. In a proceeding under Section 125, Cr.P.C., the Court would not be justified in suspecting the chastity of the wife merely because the husband casts aspersion on her chastity. If the husband wants to challenge the paternity of the child he can always file a civil suit in appropriate Civil Court for such declaration. In a proceeding under Section 125, Cr.P.C. the learned Magistrate was not justified in directing D.N.A. test of the child. The learned Additional Sessions Judge was very much justified in setting aside such order of the learned Magistrate. In my considered view, the order passed by the Additional learned Sessions Judge does not suffer from any illegality and I do not find any reason to interfere with the same.
7. Present application accordingly fails and the same is dismissed.
8. The proceedings under Section 125, Cr.P.C. is pending since 1998 and the wife-opposite party is not getting any amount of maintenance for herself or for the child. Considering all these aspects I direct the learned Magistrate to see that the proceeding under Section 125, Cr.P.C. is expedited and the same is concluded with utmost expedition without granting any unnecessary adjournment to either of the parties.