Himachal Pradesh High Court
Prem Lal Sharma vs Nisha Devi on 3 May, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No.459 of 2021 Decided on: 3rd May, 2023 .
_________________________________________________________________ Prem Lal Sharma ....Petitioner Versus Nisha Devi ...Respondent _________________________________________________________________ Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge 1 Whether approved for reporting?
For the petitioner:
r to _________________________________________________________________ Mr. Anshul Attri, Advocate.
For the respondent: Ms. Komal Chaudhary, Advocate, Legal Aid Counsel.
Jyotsna Rewal Dua, Judge The petitioner's grievance is to the interim maintenance of Rs. 3000/- per month granted by the learned Family Court in favour of petitioner's wife-Nisha Devi, respondent herein.
2. Heard learned counsel on both sides and considered the case record. Following facts are germane for adjudication of the present petition.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 03/05/2023 20:46:08 :::CIS -2-2(i) The marriage between the petitioner and respondent was solemnized in the year 1989. First Child was born to the couple in the year 1990 and second child was born .
in the year 1997.
2(ii) The respondent-wife and the second child of the couple instituted a petition on 29.03.2001 for maintenance under Section 18 of the Hindu Adoption & Maintenance Act, 1956. The petitioner resisted the claim. He, inter alia, stated that his wife had left the matrimonial home without any rhyme or reason in September 1991. She had developed illicit relationship with one Sh. Dharmu. That she gave birth to the younger son out of her illicit relationship.
Learned Court allowed the application on 15.11.2003 and granted maintenance @ Rs.1500/- per month w.e.f. 29.03.2001. Learned Trial Court observed that the husband had made wild allegations against his legally wedded wife. He had sought dissolution of his marriage with the respondent-wife on the grounds of adultery and desertion. His two divorce suits, instituted against the wife, were dismissed.
The denial by the husband of the paternity of younger child, was on the basis of wild allegations. These allegations were ::: Downloaded on - 03/05/2023 20:46:08 :::CIS -3- denied by his wife. The husband had not taken any steps for correction of the entries in the record of Gram Panchayat.
2(iii) The petitioner instituted Cr.MMO Nos. 208 and .
209 of 2004 against the aforesaid judgment dated 15.11.2003 before this Court. On being confronted with the fact that the claimants were required to file civil suit for the grant of maintenance instead of proceeding under Section 18 of the Hindu Adoption and Maintenance Act, the cases instituted by the wife and the son (though his natural guardian) under the Hindu Adoption and Maintenance Act, were dismissed as withdrawn vide judgment dated 16.11.2006.
2(iv) On 25.02.2020, respondent-wife moved an application under Section 125 of Code of Criminal Procedure (Cr. P.C in short) for grant of maintenance to her. She pleaded that her husband-petitioner had been serving in Indian Army.
He retired as Hawaldar on 01.06.2011. He had received retiral benefits more than Rs.40,00,000/- and was also getting pension of more than Rs.30,000/- per month. The respondent-
wife also stated that her husband (petitioner) had been living with another lady and was not maintaining her (respondent herein). The petitioner instead of filing reply to the application ::: Downloaded on - 03/05/2023 20:46:08 :::CIS -4- under Section 125 Cr.P.C., invoked inherent jurisdiction of this Court under Section 482 Cr.P.C by moving Cr.MMO No. 342 of 2020, praying for quashing of the entire proceedings .
under Section 125 Cr.P.C, moved by his wife. This petition was closed on 05.11.2020 with the liberty to the petitioner to raise his contentions before the learned Trial Court.
No reply was filed by the petitioner -husband to the maintenance application moved by his wife. Learned Family Court vide order dated 13.08.2021 allowed an interim maintenance to the respondent-wife @ Rs.3000/- per month.
This order has been assailed by the petitioner in the instant petition.
3. Learned counsel for the petitioner contended that the respondent-wife is not entitled for any interim maintenance as she was living in adultery and had illegitimate child out of said relationship. The petitioner does not recognize respondent's younger son as his child. Attention in this regard was invited to Section 125(4) Cr.P.C, which is as under:-
"(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceedings, as the ::: Downloaded on - 03/05/2023 20:46:08 :::CIS -5- case may be from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."
.
Learned counsel for the petitioner also contended that the respondent-wife had not filed the requisite affidavit disclosing her assets, therefore, her application was required to be dismissed.
Learned Legal Aid Counsel appearing for the respondent-wife strongly urged that the impugned order does not call for any interference. The petitioner-husband has not been maintaining his wife for many years. Merely on the basis of wild allegations levelled by him, respondent cannot be denied interim maintenance. It is for the petitioner to prove his allegations in accordance with law. It was also submitted that the petitioner-husband has not furnished list of his assets, whereas the respondent-wife to the best of her ability, had disclosed the retiral benefits being enjoyed by the petitioner-husband.
4. For the following reasons, in my considered view, no case for interference with the impugned order is made out:-
::: Downloaded on - 03/05/2023 20:46:08 :::CIS -6-4(i) The petitioner has admitted the respondent to be his legally wedded wife. The marriage between the parties still subsists. The respondent is legally wedded wife of the .
petitioner as on date.
4(ii) The petitioner has not denied access to his wife.
The only allegations levelled by him are that the respondent-
wife had left his company in the year 1991. In this regard, it will be appropriate to refer to a decision dated 20.02.2023, rendered in SLP(C) No.9855/2022 (Aparna Ajinkya Firodia Vs. Anjikya Arun Firodia), wherein it was held that:-
"......... the latter part of Section 112 of the Evidence Act indicates that if a person is able to establish that the parties to the marriage had no access to each other at any time when the child could have been begotten, the legitimacy of such child can be denied. It must be proved by strong and cogent evidence that access between them was impossible on account of serious illness or impotency or that there was no chance of sexual relationship between the parties during the period when the child must have been begotten. Unless the absence of access is established, the presumption of legitimacy cannot be displaced. Where the husband and wife have co-habited together and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate, even if the wife is shown to have been, ::: Downloaded on - 03/05/2023 20:46:08 :::CIS -7- at the same time, guilty of infidelity. The fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a .
child. The operation of conclusive presumption under Section 112 can be avoided by proving non-access at the relevant time. The Hon'ble Apex Court culled out following principles as to the circumstances under which a DNA test of a minor child could be directed to be conducted:-
"12. Having regard to the aforesaid discussion, the following principles could be culled out as to the circumstances under which a DNA test of a minor child may be directed to be conducted: i. That a DNA test of a minor child is not to be r ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions.
ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed.
iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding.
iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test become indispensable to ::: Downloaded on - 03/05/2023 20:46:08 :::CIS -8- resolve the controversy the Court can direct such test.
v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related .
consequences, social stigma, etc."
Hon'ble Justice V. Ramasubramanian, in his concurrent judgment in Aparna Aninkya Firodia's case, supra, observed that the Indian Evidence Act places birth during marriage as "conclusive proof" of legitimacy. A combined reading of Section 112 shows that once the party questioning the legitimacy of birth of a child shows that the parties to the marriage had no access to each other, then, the benefit of Section 112 is not available to the party invoking Section 112. In other words, if a party to a marriage establishes that there was no access to the party to the marriage, then the shield of conclusive proof becomes unavailable."
In view of the above settled legal position, prima facie wild allegations levelled by the petitioner-husband against his wife are not enough to nonsuit her claim of interim maintenance. In the given facts, it is for the petitioner to prove his allegations against his wife on the strength of evidence to ::: Downloaded on - 03/05/2023 20:46:08 :::CIS -9- be adduced by him. Respondent has given details of retiral benefits released to the petitioner. petitioner has not controverted the same. No reply has been filed by him to the .
application moved by his wife for grant of interim maintenance.
Consequently, I find no error in the impugned order of the learned Trial Court, hence the present petition is dismissed accordingly. The pending miscellaneous application(s), if any, also stand disposed of.
Jyotsna Rewal Dua Judge May 3, 2023 R.Atal ::: Downloaded on - 03/05/2023 20:46:08 :::CIS