Rajasthan High Court - Jaipur
Chhagan Lal Beniwal vs Master Chandan (Minor) on 18 March, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB Criminal Misc. Petition No.1499/2002 Chhagan Lal Beniwal Vs. Master Chandan Date of order 18.3.2011 HON'BLE DR. JUSTICE MEENA V. GOMBER Mr. SR Bajwa, Sr. Adv., with Mr. Satyavrat Sharma, for petitioner
Mr. Ratan Kaushik, for the non-petitioner This petition is directed against the order made by Judge Family Court No.1, Jaipur under Section 125 of the Code of Criminal Procedure (for short 'the Code') in Criminal Petition No.128/1999 on his file directing to pay a sum of Rs.1600/- per mensem to the respondent Master Chandan as maintenance from the date of order.
As per the averments made in his application claiming maintenance from petitioner filed through his mother, the petitioner married his mother Smt. Suman on 31.12.1992 and that he was born on 23.1.1995 out of their wedlock and that he was unable to maintain himself.
The petitioner, in response to the application filed by respondent's mother under Section 125 of the Code, denied his marriage to respondent's mother as also the paternity of respondent. To substantiate her application the respondent's mother examined herself as AW1 and also produced two witnesses AW2 Mala Saxena and AW3 Chetram.
After the evidence of mother of respondent, petitioner examined himself as NAW1 and exhibited Ex.A1, an order dated 15.5.2000 passed in Criminal Case No.98/99 in proceedings initiated at the instance of respondent's mother for offences under Section 376, 493, 498A and 420 IPC, whereby the petitioner was discharged from the charges levelled against him. Besides Ex.A1, a letter dated 16.6.1985 allegedly written by the mother of respondent to the petitioner was also filed before the Family Court.
The trial court after assessing the evidence came to the conclusion that there was no valid marriage between the petitioner and the mother of the respondent Smt. Suman and held that the respondent is the illegitimate child of the petitioner through Smt. Suman. Therefore, the learned Judge, Family Court awarded maintenance as stated above.
The petitioner challenged in the petition the finding of the trial court that the respondent is the illegitimate child of the petitioer through Smt. Suman (the mother of respondent). Smt. Suman has, however, not challenged the finding of trial court that there was no valid marriage, there is no need to go into that issue.
The only issue that stands for consideration is whether the respondent was born to Smt. Suman through the petitioner. It was argued on behalf of the petitioner that even if the petitioner is proved to have sexual intimacy with the respondent's mother, still he cannot be said to be responsible for siring the child. According to him the burden is on the mother of minor child to establish, beyond doubt, that she was the exclusively kept mistress of the petitioner and the relationship was virtually one of monogamy.
It was submitted that in a case where maintenance is claimed for an illegitimate child from an alleged father, it is not enough that the petitioner would have been the father, but the trial court was supposed to find out that in all reasonability no one else but the petitioner could have been the father. Further that the burden was on the mother of respondent to prove that no one else except the petitioner had access to her. Only scientific and conclusive proof to determine the paternity of child could be DNA test, for which the mother of respondent never made an offer and that he has always been ready and willing to go for DNA test. It was submitted that the matter be remitted to the court below as he is, even now, willing to go for DNA test.
Heard the learned counsel for the parties and perused the record as also the relevant provisions of law. The matter pertains to an order of maintenance awarded under Section 125 of the Code, which reads as under :-
Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Explanation.- For the purposes of this Chapter,-
(a) minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b) wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
It is clear from above that the basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy.
In order to be entitled to maintenance in terms of Section 125(1) of the Code, it has to be established by credible evidence, corroborating the assertions of paternity of the child. The court before making an order has to find definitely the paternity of the child, and to determine the paternity of the child it is prima facie improper to accept the mere statements of the mother as she is the most interested person upon whom lies the burden to establish the paternity of the child. It is to be seen whether there is sufficient evidence to prove the same or not.
The petitioner's contention throughout was that the mother of the respondent did not have the exclusive access to the petitioner but had been having relationship with other named persons and the burden of proof was upon her to show that the child was born through the alleged father and the circumstances of the exclusive relationship.
In this regard Ex.A1 produced by the petitioner himself is important, which is an order of discharge passed on 15.5.2000 by Special Judge (Women Atrocities & Dowry Case) and Additional Sessions Judge, Jaipur in a Criminal Case arising out of an FIR registered at the instance of respondent's mother at Police Station Gandhi Nagar, Jaipur whereby the court discharged the petitioner from the charges under Sections 376, 420 and 493 IPC and recorded a finding that there was nothing to show that she had been cheated or raped and that knowing well about the petitioner being married man, she continued her illicit sexual relationship with the petitioner and that order was never challenged by Smt. Suman.
Other important evidence is the statement of AW2 Mala Saxena in whose creche Master Chandan stayed during the day time when Smt. Suman was at work. She categorically stated that the petitioner used to visit the creche with the mother of respondent and that the respondent used to address him as 'papa' and also that after Smt. Suman had some dispute with the petitioner, she had requested her to not send Chandan with the petitioner.
AW3 Chetram is other important witness who claimed that the petitioner came to his house along with Suman in the morning hours of 31.12.1991 and brought a sweet packet and garland and informed him that they got married in Birla Mandir. Further that they stayed in his house for two hours and that he arranged a rented house for them in Jaipur. Further that the petitioner, who was in government job posted at Tonk, used to visit Smt. Suman. According to him, Suman also being his wife's friend, petitioner and Suman used to visit his house often. He also stated that on petitioner's asking, he had bought entire household goods for the mother of respondent for which petitioner paid him. According to him about six months or a year later there was some dispute between the petitioner and Suman and on his asking about the reason, the petitioner informed that he had some legal problem.
During his cross examination the witness reiterated that he had shown 3 - 4 houses for rents to Suman and Chhagan and had got them one Mr. Pramod Bhargava's house on rent. During cross examination, he admitted that in March 1992 Chhagan had informed him about his scuffle with Lal Chand Aswal on account of Suman.
During her cross examination, AW1 Suman in her statements on oath proved the averments made in the application. She explained that at the time of her son's birth, the petitioner told her not to enter his name in the hospital record because of his position. However, after his birth, she got the name of petitioner entered in respondent's Vaccination Card.
As regards DNA test, the petitioner's submission that he was, and, is ready for the same is against the record because the record shows that in his criminal case registered for offences under Sections 376, 420, 493 IPC at the instance of Suman, the prosecution had made a request on 15.10 1998 and a notice had been received by the petitioner for giving the blood sample for DNA test which was refused by him in writing. Then again after committal of the case to the court of Sessions, the prayer made by the prosecution was opposed by him stating that he could not be compelled for DNA test. Therefore, it does not lie in his mother to request for remitting the case for DNA test.
Other circumstances on record is that on 10.7.1998 Smt. Suman visited the government house of petitioner at Jahajpur and claimed herself to be married to the petitioner since 6 7 years. There was some scuffle with petitioner's wife Smt. Prem Devi and other family members for which petitioner had lodged a police report at Police Station Jahajpur wherein after investigation, the police found that as Smt. Suman claimed to be the wife of petitioner, she had a right to visit the petitioner. The case was, therefore, closed with the direction to the petitioner to take action in civil court.
In the light of established principles in this area, if the evidence adduced by the parties is looked into, the circumstances which emerge are as under -
The petitioner has a living spouse and child and is a government servant presently holding the post of Tehsildar. As per his own admission during his cross examination as NAW1, he had filed divorce petition against his wife Smt. Prem Devi and that Smt. Prem Devi was living with her parents and he had brought her back only in 1996 and since 1996 Smt. Prem Devi has been living with him. It is also admitted that the mother of respondent was also married to one Prem Singh since 1977 and was divorced by him in the year 1991. It has also come on record that the petitioner and respondent's mother were having extra marital relationship since 1983 and even exchange of letters was there because the petitioner himself has produced the copy of letter allegedly written by the mother of the respondent on 16.6.1985 to him complaining about their relationship being public and requesting him to give her security from the society. In public they have been appearing as husband and wife and the respondent addressed him as father. All these statements did not shatter during cross examination.
The object of Section 125 of the Code is to provide a summary remedy to save dependants from destitution and vagrancy and this is to serve social purpose, apart from and independent of the obligations of the parties under their personal law. The right of the child legitimate or illegitimate under the Code is an individual right of the child in his or on her own right independent of the mother. It is settled law that when a woman claims maintenance on behalf of a minor child out of wedlock against his alleged putative father, the onus is on her to show that the child could only have been born through the alleged father under the circumstances of an exclusive relationship. In such a case, the woman being a highly interested person, the court has a duty to see that her statement gets some independent corroboration direct or circumstantial, that the claimant could have conceived the child when she and the alleged father had access to each other.
Section 125 of the Code aims not to punish for the past, but to prevent future vagrancy by compelling those who are unable to support themselves and have a moral claim to support. Proceeding under Section 125 of the Code is summary in nature and do not go to decide the status of the parties but where a man and woman lived together as husband and wife and the man treated the woman as his wife, marriage between them has to be inferred for the limited purpose of Section 125 of the Code. There is a strong clinching evidence, which coupled with corroborating circumstances, is sufficient to establish that the petitioner had exclusive illicit sexual relationship with respondent's mother and that respondent was born to Smt. Suman through the petitioner.
In view of strong clinching evidence and circumstances as discussed above, there does not appear to be any need for lingering the matter further for getting DNA done. Parties are free to get their rights and status decided by suitable civil action.
Consequently, I am of the opinion that the respondent's mother Smt. Suman has been able to prove by way of her evidence and other circumstances as well as the conduct of the petitioner, that the petitioner was the father of the respondent.
I find no error in the conclusion arrived at by the court below regarding paternity of the respondent entitling him to maintenance from the petitioner. There is no jurisdictional error or illegality or infirmity in the impugned order that may require interference by this court in exercise of its inherent jurisdiction under Section 482 of the Code.
This petition being devoid of any merit, is hereby dismissed.
(Dr. Meena V. Gomber) J.
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