Karnataka High Court
Mrs.Salma W/O Afsarulla Baig vs Sri.Afsarulla Baig on 10 December, 2012
1 Crl.RP 351/09 c/w
Crl.P 3112/09
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF DECEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL REVISION PETITION No.351 OF 2009
C/w.
CRIMINAL PETITION No.3112 OF 2009
BETWEEN:
1. Salma,
W/o. Afsarulla Baig,
Aged about 23 years,
2. Master Roohid,
S/o. Afsarulla Baig,
Aged about 3½ years,
Reptd. by his mother
(1st Petitioner) as a
Natural Guardian,
Both are r/at
Noor Nagar,
Kolar. ... PETITIONER/s
[Common in both petitions]
[BY Sri. R. Nataraj & Sri. Keshava K.N., Advs.]
AND:
Afsarulla Baig,
S/o. Amanulla Baig,
Aged about 28 years,
2 Crl.RP 351/09 c/w
Crl.P 3112/09
R/at Noornagar,
Kolar. ... RESPONDENT/S
[Common in both petitions]
[By M/s Gandhi Law Chambers & Ramesha M.N., Advs.]
***
Crl.RP.351/2009 is filed U/Section 397
read with 401 Cr.P.C praying to set aside the
Order dt:16.4.2008 on the file of the I Addl.
District and Sessions Judge at Kolar in
Crl.R.P. No.92/2007 and modify the order
dt:24.5.2007 on the file of the Principal Civil
Judge (Jr.Dn.) and J.M.F.C. at Kolar in C.M.C.
No.130/2005.
Crl.P.3112/2009 is filed U/Section 482
Cr.P.C praying to set aside the Order dated
16.4.2008 passed by the I Addl. District and
Sessions Judge, Kolar in Crl.R.P. No.63/2007 and
modify the Order dated 24.5.2007 passed by the
Principal Civil Judge (Jr.Dn.) and JMFC, Kolar
in C.M.C. No.130/2005 by enhancing the
Maintenance Granted.
These petitions coming on for Final
Hearing, this day the Court made the following:
ORDER
Amongst these two petitions, the former petition is filed challenging the judgment and order in Crl.RP No.92/2007 allowing the revision 3 Crl.RP 351/09 c/w Crl.P 3112/09 petition of the respondent and setting aside the maintenance order granted in favour of petitioner No.1, whereas the later petition is filed challenging the judgment and order in Crl.RP.No.63/2007 dismissing the revision petition of petitioners and affirming the order of the Magistrate refusing the maintenance to petitioner No.2.
2. The facts relevant for the purpose of these petitions are as under:
The petitioners in both the petitions claim to be the wife and son of the respondent and the petitioners filed a petition in CMC No.130/2005 under Section 125 of Cr.P.C. against the respondent before the learned Magistrate, Kolar. The 1st petitioner is said to be the wife of the respondent and their marriage was registered before the Registrar on 19.11.2004. It is alleged that the 1st petitioner had married one 4 Crl.RP 351/09 c/w Crl.P 3112/09 Allabakash which was an arranged marriage and they stayed together only for one month. She claims that her former husband pronounced 'talaq' thrice in the presence of the witnesses and therefore, after the 'talaq, she started staying with the respondent as his wife. She was pregnant and delivered the 2nd petitioner on 07.08.2003. As the respondent was addicted to bad vices, he did not look after the petitioners and therefore, they started residing in the parental home of the 1st petitioner. As the respondent refused and neglected to maintain the petitioners, they approached the Magistrate under Section 125 of Cr.P.C. seeking maintenance.
The respondent appeared before the learned Magistrate and filed his objection statement denying the marriage of the 1st petitioner and the paternity of the 2nd petitioner. He 5 Crl.RP 351/09 c/w Crl.P 3112/09 contended that the 2nd petitioner is born to the former husband of the 1st petitioner.
In the trial, petitioner was examined as P.W.1 and two witnesses P.Ws.2 and 3 and in their evidence, documents Exs.P1 to P12 were got marked. The respondent was examined as R.W.1 and the documents Exs.R1 to R10 were got marked. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, granted maintenance of Rs.1,000-00 p.m. to the 1st petitioner and having held that the paternity of the 2nd petitioner was not proved, refused to grant maintenance to the 2nd petitioner. Seeking enhancement of maintenance to the 1st petitioner and for grant of maintenance to the 2nd petitioner, they approached the Sessions Judge in Crl.R.P. No.63/20007 whereas the respondent approached the Sessions Court in Crl.R.P. No.92/2007 6 Crl.RP 351/09 c/w Crl.P 3112/09 challenging the order of maintenance in favour of the 1st petitioner. Both these petitions were heard by the learned Sessions Judge and vide judgment and order dated 16.04.2008, the revision petition filed by the petitioners in Crl.R.P. No.63/2007 came to be dismissed and the revision petition of the husband-respondent in Crl.R.P No.92/2007 was allowed and the order of maintenance in favour of the 1st petitioner was also set aside by dismissing the petition filed before the Magistrate under Section 125 Cr.P.C. Aggrieved by the order of learned Sessions Judge in both the revision petitions the present petitions have been filed.
3. Revision petitioners have filed an application under Section 391(3) of Cr.P.C. seeking permission to produce additional evidence i.e., birth certificate of the 2nd petitioner-Master Roohid and two photographs.
7 Crl.RP 351/09 c/w Crl.P 3112/09
4. I have heard learned counsel for the petitioners. Counsel for the respondent is absent.
5. Learned counsel for the petitioners would contend that petitioner No.1 was divorced by her former husband-Allabakash immediately one month after the marriage and she was living with the respondent, who later married her and therefore, he contends that as petitioner No.1 is the divorced wife, was at liberty to marry the respondent and as such, the second marriage is proved on the basis of the material on record. He contends that the Courts below would have granted the maintenance. So far as the 2nd petitioner is concerned, he contends that even if the 2nd petitioner is a illegitimate child, is entitled for the maintenance under Section 125 Cr.P.C. from his father i.e., the respondent herein. On these grounds, he has sought to set 8 Crl.RP 351/09 c/w Crl.P 3112/09 aside the order of the Sessions Judge and to award maintenance. Alternatively, it is his submission that additional documents have been produced to prove the paternity and submits to remit the matter to the trial Court to afford a fresh opportunity to the petitioners.
6. Admittedly, there is no dispute so far as the marriage of the 1st petitioner with her former husband-Allabakash. What he claims before the Court is that she was divorced and married the respondent under the Special Marriage Act. So far as the divorce pleaded by her, she has not produced any document to prove the divorce. She has produced Ex.P10, a certificate issued by the Secretary of a Trust and it reveals that her marriage was performed with Alla Bakash i.e., the former husband on 03.10.2002 and it is stated in the certificate that there was no divorce by Khulla between Alla 9 Crl.RP 351/09 c/w Crl.P 3112/09 Bakash and Salma Sulthana [petitioner No.1 herein]. The Revisional Court has observed the portion of this document, wherein it is stated that there is no divorce between Alla Bakash and petitioner No.1 till today and holding that this document has been produced by the petitioners, accepted the part of the document aforesaid and came to the conclusion that the document is the proof of fact that there is no divorce. In the Mohammedan Law, a divorce could be given orally by pronouncing "talaq type" in the presence of the witnesses. The law does not contemplate a document or the registration of "talaq" by a Trust like one mentioned at Ex.P10. Though Ex.P10 is the marriage certificate, the Secretary who has issued the certificate has certified that on the basis of the register maintained by the Trust, there is no document to prove the divorce between the parties and therefore, has mentioned in the certificate that 10 Crl.RP 351/09 c/w Crl.P 3112/09 there is no divorce or khulla between Alla Bakash and Salma Sulthana [petitioner No.1 herein]. The Revisional Court ought not to have take into consideration this aspect as it is not a document to prove the divorce and that there is no divorce. The Revisional Court ought to have taken into consideration the oral evidence of the parties and then could have decided as to whether the talaq has been proved or not.
7. Furthermore, Alla Bakash, the former husband of petitioner No.1 filed a complaint under Section 200 Cr.P.C. against petitioner No.1, to initiate action for the offence punishable under Section 494 r/w. 109 IPC in P.C.R. No.152/2005. The complaint was filed before the Court on 14.10.2005. Furthermore, Ex.P7 is the copy of the plaint in O.S. No.140/2005 field by Alla Bakash against Salma [petitioner No.1 herein], seeking restitution of 11 Crl.RP 351/09 c/w Crl.P 3112/09 the conjugal rights. These two complaint and the suit have been dismissed as not pressed and Ex.P5 is the copy of the memo in P.C.R. No.152/2005 requesting to dismiss the petition as not pressed, whereas Ex.P6 is the copy of the Order sheet, which reveals that suit in O.S. No.140/2005 was dismissed as not pressed. In the complaint and the plaint instituted by Alla Bakash, though he claimed that he has not divorced his wife [petitioner No.1 herein], the contents of the plaint or the complaint cannot be termed as an admission as against the 1st petitioner as it is an averment made by Alla Bakash in the complaint and the plaint. The averment could be proved only by examining the author of this document. Otherwise, they will remain only as a mere averments as not proved. But, anyhow, the learned Sessions Judge on the basis of these two documents holds that there is an admission of subsistence of marriage of Salma 12 Crl.RP 351/09 c/w Crl.P 3112/09 Sulthana [petitioner No.1 herein] with Alla Bakash and rejected the finding of the learned Magistrate, who had held that the divorce has been proved. This approach of the learned Sessions Judge appears to be erroneous and illegal.
8. So far as petitioner No.2-Master Roohid is concerned, no document has been produced to prove the paternity. The petitioners have now produced the birth certificate, issued by the Registrar of Births and Deaths, C.M.C. Kolar and it reveals that the 2nd petitioner was born on 07.08.2003. The name of the father has been mentioned as Afzar Baig i.e., the respondent herein and the petitioners have also produced photographs in which petitioner No.1 is with respondent No.1 along with petitioner No.2-child and the petitioners intend to prove the paternity on the basis of 13 Crl.RP 351/09 c/w Crl.P 3112/09 these two documents. In fact, there are other modes, which are available to the petitioners to prove the paternity and it appears that no steps have been taken by them to prove the said fact.
9. It is the specific allegation of the 1st petitioner that after the divorce of one month's married life with former husband-Alla Bakasha, she was living with the respondent herein and during the said period, petitioner No.2 was born. Though the law raises a presumption of birth of a child to the parents during the subsistence of the marriage, the parties are at liberty to prove that the child is born to some other person and in case if the material placed on record reveals that the 1st petitioner had no access with her former husband at the time of her pregnancy and if she proves that she had access with the respondent, may be that the 2nd petitioner was born prior to the 14 Crl.RP 351/09 c/w Crl.P 3112/09 marriage of the 1st petitioner with the respondent. The law provides a right to maintenance even for an illegitimate child and therefore, the trial Court and the Revisional Court have not taken into consideration this aspect and as submitted before the Court, it is clear that the 2nd petitioner is aged 10 years now, is a minor and has a right to claim maintenance from the respondent herein in case he is born to the 1st petitioner as an illegitimate child of the respondent. The question relating to the paternity and also the birth of the 2nd petitioner as a legitimacy of child have not been considered by the trial Court. So far as the minors are concerned, it is the duty of the Court to safeguard the interest of the minor and in such circumstances should take an active part in the proceedings so far as the 2nd petitioner is concerned. Anyhow, the petitioners herein have produced two 15 Crl.RP 351/09 c/w Crl.P 3112/09 documents i.e., the birth extract and also the photographs and they may also adopt some other scientific method to prove the paternity and I think, for this reason, an opportunity has to be afforded to the petitioners to prove the paternity of the 2nd petitioner and then to consider the grant of maintenance as well. In the circumstances, I am of the opinion that it is just and proper to remit the matter to the trial Court with a direction to afford an opportunity to the petitioners to produce additional evidence and then to dispose of the case in accordance with law.
In the result, the petitions are allowed. The Order of the learned Magistrate and the learned Sessions Judge are set aside. The matters are remitted back to the trial Court to afford an opportunity to the petitioners to lead evidence and then to dispose of the case in 16 Crl.RP 351/09 c/w Crl.P 3112/09 accordance with law in the light of the observations made above. To avoid delay, the petitioners are directed to appear before the learned Magistrate on 17.01.2013.
IA.I/2011 for direction in Crl.RP No.351/2009 does not survive for consideration and hence, it is rejected.
Sd/-
JUDGE *bgn & Ksm*