CHANDRAKUMAR Vs. SHAILENDRAKUMAR AND ANR.

JUDGEMENT

(1.) This is application under section 482 of the Criminal Procedure Code, invoking the inherent jurisdiction of this Court to set aside the concurrent orders of the Courts below, granting maintenance to the respondent No. 1 under section 125 of the Criminal Procedure Code. Briefly the facts are that the non-applicant No. 1 is a minor, who made in application through his mother, Kumari Sanchkala as his guardian. It is stated in the application that the mother of the minor applicant hails The present appeal is filed against the judgment and decreed by the learned Assistant Judge, Bhawnagar. Looking to the provisions section 28 of the Hindu Marriage Act, 1955 and sections 8 and 26 of the bay Civil Courts Act, 1869, it is clear that the appeal will lie to the Court. Such a view has been taken by this court in First Appeal 1603 of 1983 decided on 24-2-1984, First Appeal No.1902 of 1984 decided 5-2-1985, First Appeal No 1126 of 1983 decided on 20-4-1985 and First I No. 492 of 1983 decided on 6-8-1985. In view of this, this appeal is maintainable before this Court. The Main of appeal is, ordered to be rued to the appellant for presentation to the proper court. The appellant given time upto 25-8-1985 to present the appeal before the District not. Order accordingly. from village Paldongri. The applicant Chandrakumar was the landlord in the said village and that he was unmarried at the tittle of the incident. The mother of the minor applicant due to poverty was working as a labourer in the field of the applicant during the relevant time It is further alleged in the application that she was seduced by the applicant to have illicit sexual intercourse with him, due to which she became pregnant, resulting in the birth of the non-applicant No. 1 on 20-9-1976. It is alleged that his mother was at that time about 16 years old. It may be stated at this stage that at the time of filing the application under section 125 of the Code Criminal Procedure the age of the minor son is shown as about 9 months.

(2.) Besides the evidence of the mother Sanchkala AW 1, the learned Magistrate recorded the evidence of one Tarachand (AW 2), Ramdas (AW 3) and Sarpanch of the village Krushna as witness on behalf of the non- applicant No. 1. Besides himself the applicant examined two witnesses Maniram (NAW 2) and Raghu (NAW 3). After considering the evidence before him, the learned Magistrate held believing the evidence on behalf of the non-applicant No. 1 and disbelieving the evidence led on behalf of the applicant that the non-applicant No. 1 was born out of illegitimate sexual relationship between the applicant and the mother of the non- applicant No. 1. After taking into consideration the financial capacity of the applicant, the Trial Court granted maintenance to the non-applicant No. I at the rate of Rs. 75 per month. The applicant challenged the above order of the learned Trial Magistrate by preferring a revision before the Sessions Court, which dismissed the same by an order dated 27-8-1983, thus affirming the order passed by the Learned Trial Magistrate. Being aggrieved by these concurrent orders, the applicant has preferred this application under section 482 of the Criminal Procedure Code.

(3.) It has to be seen that the inherent powers of this Court under section 482 have to be sparingly exercise to do justice between the parties, or to prevent the abuse of the process of the Court particularly when the order in revision was final and no second revision lay before this Court against the order of the Learned Sessions Judge, in view of the clear provisions of section 397 (3) of the Criminal Procedure Code. It is in the above limited scope of the jurisdiction under section 482 that the endings recorded by the Courts below need to be scrutinised by this Court.