Calcutta High Court (Appellete Side)
Paresh Ch. Giri vs Banabala Sasmal & Anr on 25 July, 2019
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. 981 of 2018
In
CRAN 1445 of 2019
Paresh Ch. Giri
Versus-
Banabala Sasmal & Anr.
Advocate for the Petitioner : Mr. Prabir Kumar Mitra
Mr. Pinak Kumar Mitra
Ms. Debolina Das
Judgment on : 25.07.2019
Madhumati Mitra, J. :
This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 filed by the petitioner challenging the order dated 03.03.2018, passed by the Learned Judicial Magistrate, Dantan, Paschim Medinipur, in connection with M.R.Case No.137 of 2017 under Section 125 of the Code of Criminal Procedure.
By the impugned order Learned Magistrate has directed the petitioner to make payment of Rs.84,650/- to the daughter of the opposite party by four equal installments within four months from the date of the impugned order.
Essential facts which are necessary for proper appreciation of the present application filed by the present petitioner are as under:
In the year 1995, the opposite party filed an application under Section 125 of the Code of Criminal Procedure claiming maintenance for self and her minor daughter. Said application for maintenance was registered as M.R.Case No.16 of 1995. In her application, the petitioner claimed herself to be the legally married wife of the present petitioner and also claimed that out of said wedlock one female child was born in the year 1982.
After contested hearing Learned Magistrate Dantan, Paschim Medinipur rejected the prayer for maintenance of the present opposite party and her daughter.
The present opposite party preferred a revisional application challenging the order of the Learned Magistrate passed in connection with the application under Section 125 of the Code of Criminal Procedure, rejecting the prayer for her maintenance and her daughter. The said Criminal Revisional Application was registered as Criminal Revision No.164 of 2013. On 10.09.2014, Learned Additional Sessions Judge, 4th Court, Paschim Medinipur allowed the said Revisional application in part and directed the Learned Magistrate to conclude re-hearing of the petition under Section 125 of the Code of Criminal Procedure, only in respect of the prayer for maintenance of the daughter of the revisionist as expeditiously as possible preferably within three months from the date of communication of the order as per the observations made by the Learned Judge.
On 03.03.2018, Learned Magistrate disposed of the said application under Section 125 of the Code of Criminal Procedure and directed the present petitioner to make payment of Rs.84,650/- to the petitioner by four equal instalments within four months from the date of the order.
Impugned order has been assailed by the Learned Counsel appearing for the petitioner on various grounds. According to his contention the Learned Magistrate has committed error both in law and in facts. At the time of passing the impugned order, Learned Magistrate overlooked the facts that the present petitioner is a married person having five daughters and his marriage was solemnized in the year 1967 with one Annapurna Giri. In the year 1981, the petitioner had to undergo vasectomy operation at Block Primary Health Centre of Midnapur District. After the said vasectomy operation, the petitioner got his seamen test and said test indicated the operation was successful.
Learned Advocate has specifically contended that Learned Magistrate ought to have considered that after successful vasectomy operation in the year 1981, the question of becoming father of the daughter of the petitioner in the year 1982, does not arise at all. The claim of the present opposite party that the petitioner is the father of her daughter is totally false and baseless.
In support of his contention, Learned Counsel for the petitioner, has placed his reliance on Annexure 'A' and 'B' at pages 16 and 17 respectively and also at page 18 of his application under Section 401 read with Section 482 of the Code of Criminal Procedure.
Learned Advocate for the petitioner has further contended that the petitioner in the year 1994, initiated one suit being O.S.No.193 of 1994 before the Court of the then Learned Munsif, Dantan, Paschim Medinipur, against the opposite party and her daughter praying for declaration that they are not the wife and daughter respectively of the petitioner and that suit is pending for disposal.
Having considered the materials placed on record and the submissions made by Learned Counsel for the petitioner, it appears that the only question arises for consideration in this application as to whether the Learned Magistrate is justified in allowing the prayer for maintenance to the daughter of the petitioner.
From the materials placed on record, it appears that the present petitioner has totally denied the factum of his marriage with the opposite party and his access with the opposite party. Present petitioner has laid emphasis on the vasectomy operation at Bagda Block Primary Health Centre, Medinipur, in the year 1981 and trying to impress upon the Court that after successful vasectomy operation in the year 1981, the question of his becoming father in the year 1982 does not arise at all.
The application under Section 125 of the Code of Criminal Procedure was disposed of on 05.05.2012. Learned Magistrate after holding that the petitioner of the application under Section 125 Cr.P.C. was not the legally married wife of the present petitioner and he also was not the father of the daughter of the said petitioner. The said order of the Learned Magistrate dated 05.05.2012, was challenged by the present opposite party by preferring a revisional application being no.164 of 2013. In the said revisional application, the order of the Learned Magistrate dated 05.05.2012, was modified. Learned Additional Judge held that there was no plausible evidence on record that the opposite party Paresh Ch. Giri married petitioner Banalata Giri. At the same time Learned Additional Sessions Judge arrived at a specific finding that the daughter of the petitioner viz. Ashalata Panda Giri is the child of the Paresh Ch.Giri and directed the Learned Magistrate to rehear the petition under Section 125 of the Code of Criminal Procedure regarding the maintenance of the daughter of the petitioner.
The specific observations made by the Learned Additional Sessions Judge in Criminal Revisional Application being no.164 of 2013 that the petitioner was not the legally married wife of Paresh Ch. Giri and the daughter of the petition is the child of the said Paresh Ch.Giri have not been challenged before the higher forum by the present petitioner. Learned Magistrate in compliance with the direction of the revisional Court determined the quantum of maintenance of that daughter and also the period of maintenance. After determining the quantum of maintenance as per one direction of the Revisional Court, Learned Magistrate issued direction upon the present petitioner to make payment of said maintenance including its arrears.
Several grounds have been taken by the petitioner that the said daughter of the present opposite party is adult and married; the present petitioner has initiated a civil suit praying for declaration that the present opposite party is not his legally married wife and the daughter of the petitioner is not his daughter; and in that suit an order of DNA test has been passed to determine the paternity of the daughter of the said Banalata Giri. According to the contention of the Learned Advocate for the petitioner prior to final adjudication of the said declaratory suit filed by the present petitioner, the petitioner cannot be directed to make payment.
Children either legitimate or illegitimate are entitled to get maintenance under Section 125 of the Code of Criminal Procedure. In her application, under Section 125 of the Code of Criminal Procedure, the present opposite party claimed herself to be the legally married wife of the present petitioner and also claimed that one daughter was born out of their wedlock. Claim of the present opposite party to be the legally married wife of the present petitioner was turned down by both the Learned Courts below. Though the prayer for maintenance of the daughter of the present opposite party was rejected by the Learned Magistrate but in revision, the Learned Additional Sessions Judge has made specific observation regarding the paternity of the daughter of the present opposite party and directed the Learned Magistrate to determine the quantum of maintenance of the said daughter. Previously, I observed that the said order of the Learned Additional Sessions Judge was not challenged. An unmarried daughter is entitled to get maintenance from putative father till her marriage. Petitioner has contended that the suit filed by him praying for declaration that the present opposite party and her daughter are not his wife and daughter and as such the petitioner is not liable to comply with the direction passed by the Learned Magistrate regarding payment of maintenance to the daughter of opposite party.
Law on this point is quite explicit. The life of the order passed by the Learned Magistrate is coterminious with the passing of a decree by a Civil Court. The order passed by the Learned Magistrate under Section 125 of the Code of Criminal Procedure is temporary in nature and subject to the decision of a competent Civil Court. Moreover, pendency of a Civil Suit challenging the legitimacy of the daughter of the present opposite party is not a ground to set aside the order passed by the Learned Courts below.
In this connection, I am of the view that mere pendency of the Civil Suit praying for declaration that the petitioner is not the father of the child, in question is not a valid ground to set aside an order of maintenance under Section 125 of the Code of Criminal Procedure passed by a Magistrate in compliance with the direction of the Learned Additional Sessions Judge in revision.
It cannot be overlooked that the case for maintenance was started in the year 1995 and at that time the said daughter was minor and unmarried. Learned Magistrate has rightly decided the quantum as well as the period of maintenance. The inherent power of the High Court under Section 482 of the Code is intended to prevent the abuse of the process of the Court and to secure ends of justice. While exercising the power under Section 482, the High Court does not function as a Court of appeal or revision. Inherent jurisdiction under the Section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically mentioned in the Section itself.
Having regard to the facts and circumstances, I do not find any merit to interfere with the impugned order of maintenance passed by the Magistrate.
Accordingly, the application under Section 401 read with Section 482 of the Code of Criminal Procedure is dismissed.
Re: CRAN 1445 of 2019 In view of the order passed in CRR 981 of 2018, the CRAN 1445 of 2019 becomes infructuous. No order requires to be passed.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance with all necessary formalities.
(Madhumati Mitra, J.)