NAMDEO Vs. VITHAL AND ANOTHER

JUDGEMENT

(1.) Unsuccessful in getting the order of maintenance confirmed in Sessions Court, a child aged three years has filed this revision for restoring the order of the Magistrate granting him maintenance at the rate of Rs. 75.00 per month from the non-applicant No. 1. Present applicant Namdeo had applied to the Magistrate on 27th Jan., 1983 claiming maintenance from non-applicant No. 1 Vithal. According to the applicant, he was born on 21st Aug. 1982 at Lady Hardings Hospital, Akola. He claimed to be the illegitimate child of Vithal. The allegations were that his mother Mathura was working as a labourer in the field of Vithal at village Punda in Akola district. His mother Mathura had illicit relations with Vithal as a result of which he was born on 21st Aug., 1982. Non- applicant Vithal denied the paternity and claimed that the application has been initiated due to village politics. He denied the claim of Namdeo. In the trial Court, applicant's mother Mathura was examined as witness No. 1 and one Purnaji was examined as witness No. 2. In her evidence, Mathura har stated that she was working in the field of Vithal and she developed intimacy with him and she conceived from him. Later on, she was married with one Bhaurao Banuji Wankhede on 20th May, 1982, but when Bhaurao learnt that Mathura was already carrying the marital relations broke and she was sent to her father's place. Witness No. 2 Purnaji has stated that he had seen the applicant and the non-applicant together two-three times in the rainy season. The non-applicant led the evidence in rebuttal. Apart from the oral evidence, the applicant had filed some documents before the trial Court. At Exhibit-20 is an intimation given by Mathura addressed to the Gram Sewak of village Punda alleging thereby that she was married with one Bhaurao on 20th May, 1982, but prior to that, she had conceived from Vithal on account of their illicit relations. She stated that the name of the father of the child is Vithal. She also stated that she also reported to Dahihanda police station on 8.6.1982 stating the name of the child as Namdeo. That notice has been proved by Mathura. Similarly, at Exhibit-21 is another notice given by Mathura addressed to the Advocate of Vithal. Then at Exhibits-25 and 26 are the notices addressed to Mathura and her father by non-applicant No. 1 Vithal's counsel. He denied the paternity of the child in those notices. On the basis of the oral and documentary evidence, the learned Magistrate came to the conclusion that the relationship of Mathura and non-applicant No. 1 has been established and also from the notices which caused between the parties, the paternity of Vithal with the applicant has been established. The trial Court had the advantage of recording the evidence and also observing the demeanour of the witnesses. On consideration of the oral and documentary evidence, a finding of fact has been reached by the trial Court holding that the applicant has been born to Mathura from Vithal. Consequently, the trial Court granted maintenance to the applicant at the rate of Rs. 75.00 per month to be paid by non-applicant No. I Vithal from the date of application.

(2.) Vithal preferred a revision challenging the order of grant of maintenance to Namdeo before the Sessions Court. The learned Sessions Judge took the view that it was unsafe to rely on the uncorroborated testimony of Mathura regarding the paternity. The learned Sessions Judge also took the view that Mathura also has not established and circumstances to show that she was in exclusive keeping of Vithal to establish the possibility of illicit relations. On these two considerations, the learned Sessions Judge set aside the order of maintenance awarded by the Magistrate.

(3.) Shri Mardikar, the learned counsel appearing for the applicant, has contended that the learned Sessions Judge was wrong in upsetting the finding of fact by re-appreciating the evidence. According to Shri Mardikar, the learned Sessions Judge exceeded his jurisdiction in re-appreciating the evidence and arriving at a different finding.