KESHAVA LAL MULJIBHAI PATEL Vs. MINOR SHARDA

JUDGEMENT

(1.) THE petitioner is the original opponent against whom his children filed an application for maintenance under Section 125 of the Criminal Procedure Code. In all seven children of the petitioner filed application before the learned Magistrate and claimed maintenance. The eldest child Babiben filed application on her own behalf and on behalf of other children, namely, Chandulal Keshavlal, Himatlal Keshavlal, Arvind Keshavlal, Sardaben Kesavlal, Ramaben Kesavlal and Vinodrai Kesavlal. All the children claimed that the petitioner was their father and all of them were the illegitimate children and that he was refusing and neglecting to maintain them and hence the application. The petitioner appeared in the proceedings before the trial Court and resisted the application on facts as well as on law points. He contended that the application filed by Babiben, who was the eldest sister, as guardian and next friend of all other children, was not maintainable. He also contended that all these children were not his children and the paternity was required to be established. He also submitted that he was not earning sufficiently and he had no means to provide maintenance for all these children. The trial Court came to the conclusion that the application was maintainable but Babiben, Chandulal Kesavlal, Himatlal Kesavial and Arvind Kesavlal had ceased to be minor and therefore, they were not entitled to maintenance. However, the trial Court held that Sardaben Kesavlal, Ramaben Kesavlal and Vinodrai Kesavlal were entitled to claim maintenance and directed that each one of them be paid Rs. 100/ - per month as and by way of maintenance by the petitioner -father. The trial Court also directed that an amount of Rs. 200/ - also be paid as and by way of cost of the application. Against this order of the trial Court both the parties preferred revision application before the learned Sessions Judge. The present petitioner (father) contended that the order granting maintenance in favour of the three children, namely, Sardaben, Ramaben and Vinodrai, was not legal and valid and was required to be quashed and set aside. The other children whose application for maintenance was rejected by the trial Court also preferred revision application and prayed that they also should be granted maintenance. The learned Additional Sessions Judge, Bhavnagar, who heard the revision applications, dismissed both the revision applications as per his order dated April 19, 1984. The petitioner father preferred this special criminal application and has challenged the legality and validity of the order passed by the lower Courts.

(2.) IT is contended that the provisions of Section 125 of the Criminal Procedure Code are in the nature of civil proceedings and the provisions of Civil Procedure Code would apply and therefore, in view of the provisions of Order 32 Rule 4 of the Code of Civil Procedure, Babiben, who is the eldest sister, could not have filed application as guardian and next friend of other children. It is contended that particularly in view of the proviso to Order 32 Rule 4 of the Code of Civil Procedure, when Babiben herself was also one of the claimants, she could not have been permitted to prosecute the applications for and on behalf of the other minors. It may he noted that in Section 125 to Section 128 of the Criminal Procedure Code which govern the maintenance proceedings, nowhere it is provided that the provisions of the Code of Civil Procedure are to be applied strictly. As laid down by the Supreme Court in the case of Nand Lal v. Kanhaiva Lal, reported in AIR 1960 SC 882. The proceedings are of Civil nature. But that does not mean that all the provisions of the Code of Civil Procedure are to be strictly applied. It may be noted that the provisions of Section 125 of the Criminal Procedure Code are enacted with a view to prevent vagrancy and see that the persons who are destitutes are provided immediately wherewithal so that they can pull on with life. When such is the object behind the provisions of Section 125 of the Criminal Procedure Code, the procedural technicality cannot be allowed to come in the way of dispensation of justice. In the instant case, by no stretch of reasoning it can be said that the interest of Babiben was in any way in conflict with the interest of other minors on whose behalf, the application was filed. Therefore, in substance, there was no irregularity or illegality when the lower Courts permitted Babiben to prosecute the application for herself and on behalf of other minors. Hence this contention has got to he rejected.

(3.) COUNSEL for the petitioner contended that the children and particularly the minor children on whose behalf the order of maintenance has been passed, are not his children. According to him there is no reliable evidence to prove the paternity and therefore the order passed by the lower courts should be reversed and set aside. On this point there is concurrent finding of facts by both the courts below. Simply because the mother has not been examined by the applicant -minors it cannot be said that there was no reliable evidence to come to the conclusion that the minor claimants were the children of petitioner herein. Both the courts below have discussed the entire evidence led by the parties on this point. There is no reason to interfere with the finding of facts arrived at by the lower Courts. Hence this contention also fails.