Delhi District Court
Smt. Laxmi vs Sh. Mukesh Gupta on 12 September, 2011
Page 1 of 27
IN THE COURT OF MS. PRIYA MAHENDRA: MM: SOUTH DELHI: SAKET
COURT: NEW DELHI.
CC No: 400/01 ( Date of filing 29.03.1990)
Jurisdiction of Police Station : Malviya Nagar
1. Smt. Laxmi
w/o Sh. Mukesh Gupta
2. Baby Gaytri D/o Sh. Mukesh Gupta,
R/o House No. 599, Chirag Delhi,
New Delhi. .......... petitioners
Versus
Sh. Mukesh Gupta,
S/o Sh. O.P. Gupta,
R/o House no. 130, Sukhdev Vihar,
New Delhi ..........Respondent
APPLICATION U/S 125 Cr.P.C. FOR MAINTENANCE
JUDGMENT
1. This is a judgment under Section 125 CrPC wherein the petitioner no. 1 wife of the respondent has filed claim for maintenance for herself and for petitioner no. 2, daughter of petitioner.
2. The petitioner averred in her petition that marriage between the petitioner Laxmi Vs. Mukesh Gupta Page 2 of 27 and respondent was solemnized in the month of May 1987 according to Hindu rites and ceremonies. Out of the said wedlock one baby girl was born on 07.02.1989 at New Delhi. The respondent was not satisfied by the dowry brought by the petitioner no. 1 and started harassing, illtreating and torturing the petitioner no. 1 for brining insufficient dowry. He used to even physically beat up the petitioner no. 1 and extended threat to kill her in case the petitioner no. 1 does not bring cash and articles as demanded by him. The uncle of the petitioner no. 1 Kachru intervened in the matter and tried to resolve the matter with the respondent but all in vain. It is further averred that on 31.08.1988 the respondent with his father and family members started quarreling with the uncle of the petitioner and demanded Rs. 20,000/ and further threatened to thrown out the petitioner in case she does not bring amount of Rs. 20,000/. The uncle of the petitioner told the respondent and his family that he cannot afford such huge amount but they do not relent. The petitioner was hit with the brick by the respondent which resulted in severe injury to the petitioner. The neighbors telephoned the police and police came at the spot and took the petitioner to AIIMS where she remained admitted to hospital for few days days and a case was registered against the respondent. It is further averred that since July 1989 petitioner is staying along her daughter because the respondent has Laxmi Vs. Mukesh Gupta Page 3 of 27 refused to maintain them. It is further averred that it has come to the knowledge of the petitioner that respondent is staying with another lady namely Sushma.
3. As regards income, it is stated that petitioner is an uneducated and poor lady and has no source of income and is not in a position to maintain herself and her daughter. As regards the income of respondent, it is stated that respondent is a government contractor, earning Rs. 5000/ per month and has no other liability except to maintain the petitioner and her daughter.
4. The respondent filed the Written Statement taking the preliminary objections that the respondent never got married to the petitioner and he belongs to respectful Gupta family in Delhi. It is further averred that his father is the permanent resident of Delhi. He was married to Smt. Madhu Bala Gupta D/o Late Sh. Janki Ram Gupta on 08.02.1984. Immediately after the marriage the respondent with his wife Madhu Bala Gupta started residing at his father's residence at CR Park, New Delhi and since November 1985 at house no. 130, Sukhdev Vihar, New Delhi. The respondent has no issue from his marriage till date. The respondent is Laxmi Vs. Mukesh Gupta Page 4 of 27 unable to procreate on account of absence of spermatezoea. The respondent has undergone treatment with number of doctors, clinics, hospitals and specialists for this deficiency. However same has not cured him and he is unable to procreate. It is also stated that respondent used to take service of one Maqbool, casual labour till 1987. Not satisfied with his work and behavior, the respondent stopped engaging him for casual work. This caused heartburn to him and he in connivance with the petitioner no. 1 Smt. Laxmi, filed the present case as a tool to black mail him. It is further stated that as part of conspiracy, the petitioner no. 1 along with said person Maqbool involved the respondent in another false criminal case by making a complaint on 26.10.1988 with a view to blackmail the respondent. The said complaint was investigated by one Inspector Ms. Veeran Wali under Ms. Vimla Mehra, DCP. The respondent explained to IO that he is already married to Madhu Bala Gupta on 08.02.1984 and also is residing with her. Further he is physically incapable to procreate and also produced the medical certificates about semen report before the investigating officer. After investigation and inquiry the investigating officer was satisfied that there was no substance in the complaint. In the year 1989 petitioner no. 1 again made a complaint in Women Crime Cell before Smt. S. Thukral, DCP. The respondent Laxmi Vs. Mukesh Gupta Page 5 of 27 apprised the above stated facts to the said investigating officer and again the complaint of petitioner was dismissed. Again in 1990 the petitioner no. 1 Laxmi filed the complaint with Delhi Legal Aid Advise Board and Board wrote to the respondent for attending the office. The board did not sent the copy of complaint to respondent but the respondent wrote to the Board that he was married since February 1984 and that he has no relation/connection/ matrimonial dispute with Smt. Laxmi. He also wrote to the Board that Smt. Laxmi is black mailing him for 2 years at the instance of one person namely Maqbool and requested the Board to send copy of same to him but board did not send any copy of complaint to him. It is further stated that petitioner no. 1 namely Laxmi is a south Indian lady and is daughter of one Muthu Swamy. It has also come to the knowledge of respondent that she has one more daughter namely Pushpa born on 09.11.1978. As per school record, the father of the said pushpa is Sh. Ashok Chand. It is also stated that petitioner no. 1 is a South Indian Lady whereas Shri Kachru stated to be her uncle is from North India and probably from Haryana. It is stated that petitioner no. 1 is not related to Kachru at all. She always stayed with her alleged uncle or Sh. Ashok Chand with whom she is married and she has daughter namely Pushpa. The respondent has also denied raising any dowry demand or harassing Laxmi Vs. Mukesh Gupta Page 6 of 27 the petitioner for not bringing sufficient dowry. It is averred that the petitioner no. 1 came to live in the vicinity of the house of parents of respondent in CR Park. She came to the house of parents of respondent with intention to black mail the respondent for which he did not agree. The petitioner no. 1 had created a scene and picked up quarrel and with the intervention of police the matter was resolved.
5. As regards income of respondent, it is averred that the respondent is working as private contractor with DESU, though his firm Mukesh Electrical is not registered as contractor with DESU. The respondent has doing petty work with DESU and his total turn over every year is less than Rs. 1 lac. Since the margin is only 10%, therefore his income is around Rs. 10,000/ per annum. Besides that, respondent has no other work or earnings at all. It is further stated that petitioner has sufficient source of income to bear all rental expenses, educational expenses of her two children and other expenses.
6. The petitioner has reaffirmed and reiterated the facts of her petition in the replication filed by petitioner. It is further stated that she is legally wedded wife of the respondent, and lived with respondent as his legally wedded Laxmi Vs. Mukesh Gupta Page 7 of 27 wife. The petitioner no. 2 was born out of wedlock of petitioner no. 1 and respondent. It is further stated that the petitioner was not aware about the earlier marriage of the respondent and came to know at a very late stage about the marriage of respondent with Madhu Bala Gupta. Petitioner has categorically denied that respondent is suffering from any physical incapacity to procreate. It is stated that the medical report of the respondent merely disclose that there are less chances to procreate because of less spermatizoea however it does not reflect that he is absolutely incapable to procreate. The petitioner has categorically denied that she knows any Maqbool. It is further stated that complaint made by the petitioner at the Crime Women Cell was never dismissed and in fact summons were sent to the respondent and he appeared in the office of women cell. During the course of investigation, date was fixed for medical check up of respondent at government hospital but he ran away from the office and never turned up because of his bad intention. Thereafter notice was sent to office as well as to his residential address. Then the matter of the petitioner was referred to the office of Delhi Legal Aid and Advise Board and then the present case for maintenance was filed by the petitioner. It is also stated that Pushpa is the daughter of the elder sister of the petitioner no. 1 who has come to stay with her. The petitioner has Laxmi Vs. Mukesh Gupta Page 8 of 27 denied that she is capable to maintain herself and her daughter, petitioner no. 2. It is also stated that the respondent is a Government Contractor with DESU and earning Rs. 6000/ per month. It is also stated that respondent also takes private contract and makes earnings from them.
7. In support of her case, the petitioner examined herself and her daughter Gyatri. The respondent produced no evidence in support of his case. The right of respondent to produce DE was forfeited vide order dated 24.08.2007, as he failed to lead DE despite availing several opportunities. In fact, he was given last and final opportunity number of times for leading DE. However, despite the same he failed to lead any DE in support of his case.
8. I have heard the counsel for parties and also bestowed my careful consideration to the written arguments filed by the respondent. The arguments of counsel for respondent are five fold i.e. firstly the respondent never married with the petitioner no. 1 nor resided with her as husband and wife, secondly the petitioner no. 2 is not the daughter of respondent as he is medically unfit to procreate, thirdly the present litigation has been filed by the petitioner no. 1 in active connivance with one Maqbool having Laxmi Vs. Mukesh Gupta Page 9 of 27 inimical relations with the respondent, fourthly the petitioner no. 1 is already married to one Ashok Chand and also has one daughter namely Pushpa from the said marriage and finally there are discrepancies in the testimony of the complainant regarding the date of conception and date of birth of PW2 which manifest that complainant has weaved a false story to defame the respondent.
9. At the outset, it is pertinent to note that the proceedings under Section 125 Cr.P.C are quasi criminal and extent of proof required is not of 'proof beyond reasonable doubt' but the parties are required to prove their respective cases by 'preponderance of probabilities'. In order to establish that the petitioner is entitled to maintenance u/s 125 Cr.P.C the following four ingredients had to be established : a. Relationship of claimant with the respondent as wife / Child/father / mother, as the case may be, b. The ground for her residing separately, which should be reasonable and sufficient to make her entitled for the relief, c. Incapability of petitioner to survive on her own and d. Capability of respondent to make provision for the maintenance. Laxmi Vs. Mukesh Gupta Page 10 of 27
10. In her examination in chief the petitioner reiterated and reaffirmed the case as made out in the complaint. She deposed that on 29.05.1987 she got married to Sh. Mukesh gupta in accordance with Hindu rites and customs. The marriage was solemnized at Khanpur, Delhi. His uncle namely Kachru Singh arranged her marriage with the said Mukesh Gupta. In fact, it is Mukesh Gupta who had approached her aforesaid uncle with marriage proposal. After the marriage she started living with Mukesh Gupta first at Raju nd Park in rented accommodation by the respondent. In the year 1988 on 2 February she gave birth to a girl child namely Kumari Gayatri. In the month of February, 1999 the said child will be completing 10 years of her age. The respondent at the time of her marriage was working as a contractor with DESU. To her knowledge Mukesh Gupta is earning a lot of money by way of taking different contracts. His income is approx. 50,000/ to 60,000/ per month. After the marriage till the time of my separation, she lived with the respondent/husband at 3 different places in Delhi. It is during this period that the respondent husband took a rented accommodation in Chirag Delhi and told her that within 15 days he will get some better accommodation and thereafter for 3 months he left her along with her daughter. She paid the three months rent and managed her day to day living becuse her uncle had given her some money. On 31.08.1988 the respondent along with 5 other persons Laxmi Vs. Mukesh Gupta Page 11 of 27 gave beating to her in CR Park and she got 7 stiches on her head. She reported this mater to the police in PS C.R. Park on 31.08.1988. The police officials got her medically examined in AIIMS. Thereafter her uncle took her to his home. Her uncle went to the respondent and requested him to take the petitioner and his child but on one pretext or the other he did not take her and thereby neglected to maintain her and his child. Thereafter the police tried to examine the respondent medically as the respondent had alleged that he is an impotent but the said Mukesh Gupta refused and skipped from there. The respondent has and is married again with one Madhu Mala Singh B24 C.R. Park and there are 2 children the respondent is having from that lady also. One child is about 5 years of age and the other child is about 1 year of age. The house in which second wife Madhu Mala is residing is in her joint name along with the respondent. The respondent has also taken an insurance police in the name of her child Gayatri Gupta. The original policy is in the th custody of the respondent. Her daughter Gayatri is studying in 5 Class in some govt. school but she cannot tell the particulars. The govt. school is in Chirag Delhi. In the school record the respondent is shown as the father of her daughter Gayatri. She required Rs. 1000/ per month or so for the maintenance of her child.
Laxmi Vs. Mukesh Gupta Page 12 of 27 th
11.PW2 deposed in her examination in chief she is a student of 9 class and studying in SKV school at Swami Nagar. She also testified that name of her father in school record is of respondent i.e. Mukesh Gupta. She further stated that her grand father name is O.P. Gupta and she can recognize her father and grand father. She also identified the respondent present in the court as her father.
Relationship of Petitioner No. 1 with respondent as wife.
12.As regards appreciation of evidence, the petitioner no. 1 has categorically deposed that she got married to the respondent on 29.05.1987 according to Hindu rites and ceremonies. Further the petitioner and respondent started living as husband and wife and thereafter one girl child namely Gyatri, petitioner no. 2 was born on 02.02.1988. However, the petitioner in her replication has admitted in para no. 5 about the previous marriage of respondent by stating that this fact was not within her knowledge. In her replication, in para no B to the "Reply to the facts in brief", she also stated that at very later stage she came to know about the marriage of the respondent with some Madhu Bala Gupta. In Yamuna Bai Vs. Anant Ram Shiv Ram, AIR SC 644, it was held by the Hon. Apex Court that marriage of a woman in Laxmi Vs. Mukesh Gupta Page 13 of 27 accordance with Hindu rites and ceremonies with a man already having living spouse is complete nullity in the eye of law and she is not entitled to get benefit of section 125 of the Code. It was also held that the fact that wife was not informed about the husband's earlier marriage when she married him would be of no avail and the wife cannot rely on provision of estoppel so as to defeat the provision of law. In the present case, the petitioner no. 1 had admitted that the respondent was married to one Madhu Bala Gupta before her marriage with the petitioner even though the said fact was not in her knowledge. Even in her evidence during her crossexamination she stated that she does not know that Mukesh/respondent was already married. Considering the admission of the petitioner no. 1 in light of the law laid down by the Hon'ble Apex Court, the petitioner no. 1 cannot be considered as legally wedded wife for the purpose of granting maintenance to her as she does not fall within the definition of "wife" as envisaged in section 125 Cr.P.C. Therefore she is not entitled to any maintenance in the present case. RELATIONSHIP OF PETITIONER NO. 2 WITH RESPONDENT AS DAUGHTER OF RESPONDENT.
13.Now the second question arises for consideration that once, it is held that the Laxmi Vs. Mukesh Gupta Page 14 of 27 petitioner no. 1 is not legally wedded wife of the respondent, can petitioner no. 2 claim any maintenance from the respondent. Section 125 of Cr.P.C. made no distinction between the legitimate and illegitimate child for the purpose of granting maintenance. The illegitimate child also has a right to claim maintenance from his/her father u/s 125 Cr.P.C. The child born out of marriage not recognized by law is considered as illegitimate child. At the outset it is pertinent to note that the proceedings u/s 125 of Cr.P.C. is of summary nature and the standard of proof is preponderance of probabilities. The first arguments for counsel for respondent is that no marriage was solemnized with petitioner no. 1 and respondent. In Dwarka Prasad Satpathy Vs. Bidyut Prava Dixit and anr 1999, (3) CCC 394 (SC), it was held that validity of marriage for the purpose of summary proceedings u/s 125 of the Code is to be determined on the basis of evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as required in trial of an offence u/s 494 IPC. If the claimant in proceedings 125 of Code succeeded in showing that she and respondent have lived together as husband and wife, the court can presume that they are legally wedded spouse and in such a situation, who denied the matrimonial status has to rebutt the presumption. The same position was also reinforced in Lakhwinder Kaur and anr. Vs. Gurmail Singh, 2007 (2) PLR 465 and in M. Laxmi Vs. Mukesh Gupta Page 15 of 27 Sainath Vs. Ezaf Pentavva and others 2008 (1) RCR (Cri) 60. The petitioner in the present case has categorically deposed regarding his marriage with the respondent and fact that they resided together as husband and wife. She also denied the suggestion that there was no occasion of demand of dowry as no relationship exist between her and respondent. The petitioner also deposed that her marriage was solemnized by her uncle Khachru and her sister and brother in law did not attend the said marriage. She also deposed that at the time of her marriage, her father has already expired and he expired around one year before her marriage. Thus, the complainant has categorically stated that the marriage was not attended by her close family. So there is sufficient explanation for nonexamination of her family members to prove marriage. As far as her uncle Khachru is concerned, her was examined by the complainant earlier to prove her marriage while leading her exparte evidence in the year 1992. However, the exparte judgment relying the said testimony was later set aside vide order dated 04.10.1993 and the respondent was given liberty to file written statement. Therefore, the testimony of Khachru cannot be read now. Be that as it may, the complainant is only required to prove in the present proceedings that she lived with respondent as husband and wife.
Laxmi Vs. Mukesh Gupta Page 16 of 27
14. The complainant also deposed that after the marriage she also started living with respondent first at Raju Park at rented accommodation taken by the respondent. After the marriage till the time of her separation she lived with respondent/husband at three different place in Delhi. She also deposed that it is during this period the respondent took the rented premises in Chirag Delhi and told the petitioner no. 1 that within 15 days he will get some better accommodation however he never turned up and thereafter for 3 months he left her alone with her daughter. Even during her crossexamination she deposed that her marriage was solemnized in the house of Mangtu Gujar in Khanpur. However she stated that she does not know that for how many days they lived in the said house. She also stated during her crossexamination that she lived with the respondent in Pushp Vihar house for 34 months but she does not know the person whom they resided thereafter they resided in Chirag Delhi. Her testimony in this regard remained consistent, coherent and unimpeachable. Therefore there arise a presumption in favour of the petitioner that marital relationship existed between the petitioner no. 1 and respondent. The respondent has not produced any evidence to contrary to rebutt the said presumption. Moreover, it is also not believable and highly improbable in Indian context that a woman married to one person would claim another person to be her husband and father of her child at the behest of someone Laxmi Vs. Mukesh Gupta Page 17 of 27 and then would litigate for 21 years. Therefore, I have no hesitation in holding that the complainant and respondent lived as a husband and wife and shared marital relationship. When once it is held that the marital relationship existed between the petitioner no.1 and the respondent, then obviously the respondent get access to the petitioner and the petitioner no. 2 is offspring of the petitioner no.1 and respondent. This is further substantiated by the fact that petitioner no. 1 in her evidence by way of affidavit clearly deposed that in the school record of petitioner no. 2 the respondent is shown as the father of her daughter Gyatri. The petitioner no. 1 was not cross examined on this aspect by the respondent and even not any suggestion was given with regard to the same. During her crossexamination, the petitioner PW1 also stated that PW2 was born in a hospital namely Nehru Pity which is opposite to Kotla. Despite the clear deposition of PW1, the respondent never called any hospital record during the the cross examination in order to establish that Gyatri is not the daughter of the respondent. Thus, I am of the considered opinion that it is proved on preponderance of probabilities that petitioner no. 2 is daughter of respondent.
15. The second argument of counsel for respondent is that the present petition has been filed by the petitioner at the behest of Maqbool having rivalry with Laxmi Vs. Mukesh Gupta Page 18 of 27 the respondent. The petitioner has also categorically denied that she knows any Makbool. She also stated that she does not know if Makbool was an employee/casual worker with the respondent, who used to take small contracts of electricity job. She also deposed that she never resided with the Makbool. She also denied the suggestion that she has filed this petition in connivance with Makbool only to blackmail the respondent. The respondent has not produced any evidence in order to establish that the present case has been filed by the petitioner no. 1 at the behest of Makbool. Even Maqbool has not been examined by the respondent in order to prove his plea. So, the respondent has only made a bald plea of the present litigation being motivated and there is not an iota of evidence that petitioner no. 1 has filed present petition in order to take revenge from the respondent in active collusion with Maqbool.
16. Another argument of counsel for the respondent is that the respondent is medically unable to procreate and therefore the petitioner no. 2 cannot be his daughter. In this regard, it is important to note herein that the respondent filed an application in May 2001 for conducting the DNA test of the petitioner no. 2 in order to establish that petitioner no. 2 is not his daughter and also undertook to bear all expenses of DNA testing. The petitioners instantly Laxmi Vs. Mukesh Gupta Page 19 of 27 consented to the same. Thereafter all the formalities for conducting DNA test were also completed and it took nearly one year. However, thereafter the respondent backed out in September 2002 on the pretext of not having sufficient money. So , it was the respondent who backed out from DNA Test whereas the petitioners all along consented to the same. Moreover, the evidence of respondent started on 22.09.2005 and he examined himself in support of his defence. The same was deferred four times for producing original medical documents by respondent on which he heavily relied during the entire course of proceedings to show his inability to procreate. The respondent took four opportunities for the same purpose but still he failed to produced the same and consequently the right of the respondent to produce RE was closed vide order dated 24.08.2007. The conduct of the respondent itself speaks volumes. Firstly he filed an application for conducting the DNA test of petitioner no 2 but backed out at final stages and secondly he failed to produce the very medical documents in original on which he all along relied during last 20 years to contend that he is impotent and incapable of producing the child and therefore petitioner no. 2 cannot be his daughter. In fact, the respondent again moved an application for getting conducted the DNA test at the stage of final arguments. It is again important to note that the petitioners again expressed their willingness to go through the same however the same Laxmi Vs. Mukesh Gupta Page 20 of 27 was dismissed by the court on considering previous conduct of the respondent with the observation that the same has been filed at this belated stage by the respondent only with a view to further protract the litigation. Considering the evidence in entirety coupled with conduct of the respondent , I am of considered view that the respondent has miserably failed to proved on record that the petitioner no. 2 is not his daughter and he is medically unfit to procreate.
17. The respondent during crossexamination of PW1 repeatedly asked several questions to the PW1 regarding parentage of pushpa. It is argued by counsel for respondent that the complainant has given contradictory statement regarding the same and this discredit the petitioner no. 1 completely. However, this argument is totally misconceived. It is borne out from the evidence that the petitioner no. 1 was subjected to very rigorous cross examination by the respondent and was asked same questions again and again. In fact the PW1 also started weeping in the court while her evidence was being recorded on 29.10.2003 and complained that relevant question are not being put to her and irrelevant questions are again and again being put to her. However, despite the same the petitioner deposed mostly consistently with very few discrepancies. The petitioner during her crossexamination also Laxmi Vs. Mukesh Gupta Page 21 of 27 categorically denied that Pushpa is her daughter. She also stated that Pushpa is daughter of her sister Kanchan and is not her daughter. She also denied that she mentioned the name of her husband as Ashok Chand in the admission form of Pushpa in the school. She also stated that she never resided with the said Ashok Chand rather she resided at the house of her sister Kanchan. So the evidence of complainant inspires confidence and is reliable.
18. Next, it is argued by counsel for the respondent that PW1 in her deposition has given different version about the conception and date of birth of Gyatri which cannot be believed and falsify her version. In order to support his arguments he has stated that in her crossexamination she stated that she conceived her daughter at the end of March 1988 and the child was delivered on due date. Further she stated in her cross examination that the respondent did not visit her after August 1988. Therefore it is contended by counsel for respondent that respondent has no access to the petitioner after August 1988 and therefore the petitioner no.2 cannot be said to be the daughter of the petitioner no. 1. I am not in agreement with the contention of cousel for the respondent. The petitioner stated in her examination in chief that her daughter nd was born on 2 February 1988 and she completed the age of 10 years in Laxmi Vs. Mukesh Gupta Page 22 of 27 February 1999. It appears that due to typographical error it was written that nd nd petitioner no. 2 was born on 2 February 1988 in place of 2 February 1989 as the following statement made it clear that in February 1999 the petitioner th no. 2 completed the age of 10 years. Even in her evidence recorded on 29 October 2003 the petitioner no. 1 stated in her crossexamination that the petitioner no. 2 was six month old in the year 1989. Had she born in Feburary 1988, she could not have been 6 months old in the year 1989. This also shows that the petitioner no. 2 was born in 1989 and not in 1988 and there was inadvertent typographical error. Further, much emphasis has been laid by the ld. Counsel for respondent that petitioner stated in her cross examination recorded on 29.10.2003 that she conceived at the end of March 1988 and child was born within due time to contend that the complainant has not disclosed the correct date of birth of petitioner no. 2 as the date of birth of nd petitioner no. 2 is stated as 2 February 1989. However, it cannot be loose sight of that the petitioner no. 2 was born in the year 1989 and the cross examination referred to was recorded in 2003. Human memory fades with time. It is not humanly possible for a woman to specify the exact date of her conception after 14 long years. Her testimony cannot be discredited merely she was not able to disclose the exact date of her conception after 14 years. Moreover, it is noteworthy that the petitioner clearly in her cross examination Laxmi Vs. Mukesh Gupta Page 23 of 27 stated that the respondent did not contact her after August 1988 and also that her daughter Gyatri at that time was in her womb of 4 month. Therefore, the petitioner no. 2 as per this statement must have been conceived in May 1998. If date of birth of petitioner no. 2 is taken as 02.02.1989 as stated by the petitioner no. 1, the petitioner no. 2 must have been conceived in May 1998 if she was born on due date. So there is no discrepancy in the statement of petitioner no. 1 as alleged by the respondent. Therefore the plea of respondent that the respondent had no access to the petitioner no. 1 at the time when the child could have been begotten lacks substance. In view of the above, I am not hesitant to hold that it is proved on preponderance of probabilities that petitioner no. 2 is the daughter of the respondent.
19.It is also vehemently argued by the counsel for respondent that the fact that PW2 stated in her crossexamination that she was not told by her mother that respondent is her father and OP Gupta is her grand father indicates that the case is baseless and false other wise PW1 Laxmi Devi must have disclosed this fact to her daughter for whom she is claiming maintenance. The petitioner no. 2 has deposed that neither her mother nor anyone else told her that Mukesh Gupta is her father and O.P. Gupta is her grand father. The contention of counsel for respondent is apparently contradictory. On one hand it is Laxmi Vs. Mukesh Gupta Page 24 of 27 contended by counsel for respondent that PW2 deposed falsely that respondent is her father at the behest of petitioner no. 1 and on other hand it is contended that the fact that petitioner no. 1 has not told the petitioner no.2 the name of her father falsify the case of the petitioner no.1. The argument of counsel for respondent is of no merit and lacks substance.
(b) The ground for wife for residing separately should be reasonable and sufficient to make her entitle for relief.
20.In view of the finding that the petitioner no. 1 is not entitled for maintenance in view of previous marriage of respondent, no finding is required to be given on this aspect.
(C) incapability of petitioner no. 2 to survive on her own.
21.The petitioner no. 2 being minor is incapable to maintain herself. The respondent besides making bald averments, has not placed any evidence on record that petitioner no. 1 is earning well and is capable of maintaining the petitioner no. 2. Even otherwise, the father has a legal and moral duty to maintain his daughter and cannot disown his duty on the ground that the Laxmi Vs. Mukesh Gupta Page 25 of 27 mother of the child is working and earning well.
(D) Capability of the respondent to make provisions for maintenance.
22.The complainant has stated that the respondent works as a contractor and was earning an amount of Rs. 50006000 per month at the time of filing of the petition i.e. In the year 1990. The petitioners have not filed any documents to substantiate the said contention. On the other hand the respondent has stated that his monthly income was barely around Rs. 850 per month at the time of filing of petition. He has also not produced any evidence to prove the same. In the said circumstances no concrete proof of income of husband is brought on record by either side. The best course in such situation is to follow the minimum wages as applicable in Delhi. Rather than asking the daughter to come with an applicable u/s 127 Cr.P.C. for revision of maintenance amount due to increase in minimum wages the proper course is to make assessment of the income of husband with reference to both the said dates and fixed the maintenance amount, accordingly. The petitioner no. 2 is entitled to maintenance from the date of filing petition i.e. 29.03.1990 till she attains the nd age of majority i.e. 2 February 2007. The average minimum wages for unskilled person would be 1816/ per month from 1990 to 2000 and Rs. 3000/ Laxmi Vs. Mukesh Gupta Page 26 of 27 from 2001 to 2007. The petitioner no. 1 has herself alleged that respondent is also having another wife and two children. The respondent has also the duty to maintain the said wife and children. Therefore, interest of justice would be met if the respondent is directed to pay a sum of Rs. 650/ per month to th st petitioner no. 2 from 29 March 1990 to 31 December 2000 and Rs. 1000/ st per month from 1 January 2001 till she attains the age of majority.
23.Respondent is directed to clear the arrears of maintenance within 9 months from today in equal installments and to furnish the monthly maintenance after the date of order, by way of money order or by deposit in the bank account of the petitioner on furnishing of account number of the same, by or before 10th day of each English calender month. The default shall be viewed in terms of the judgment of Hon'ble High Court in Gaurav Sodhi Vs. Divya Sodhi - 120 DLT (2005) 426.
24.I am constrained to note herein my deep anguish. The present petition under Section 125 Cr. P.C was filed in the year 1990. The section 125 Cr.PC. was enacted with a view to provide summary remedy for providing maintenance to wife/children and parents who are willfully refused or neglected by husbands Laxmi Vs. Mukesh Gupta Page 27 of 27 or children and who are unable to maintain themselves. Ironically the petition came to be decided after 21 long years. This case is the classic case to show the delays inherent in our present judicial system. The wife and the child are finally delivered justice after fighting 21 years long legal battle. Petition stands disposed of in the said terms. File be consigned to record room.
Announced in open court On 12th September 2011.
(PRIYA MAHENDRA) METROPOLITAN MAGISTRATE, MAHILA COURT(SOUTH), SAKET COURTS, NEW DELHI.