NIZAM SINGH Vs. BENI BAI

JUDGEMENT

(1.) This second appeal at the instance of plaintiff is directed against the judgment and decree dated 25.6.2013 passed in Civil Appeal No.25 -A/2012 by the Second Additional District Judge, Sagar; whereby, the judgment and decree dated 6.11.2009 passed by Civil Judge, Class II, Deori, District Sagar, dismissing the Civil Suit No.29 -A/2008, has been affirmed.

(2.) Suit by the appellant/plaintiff was for declaration that the defendant No.2 being not his son, he is not entitled for maintenance and succession in his property. The suit has been filed on the ground, that the marriage between the plaintiff and respondent No. 1 was solemnized thirty years ago and a daughter was bom out of said wedlock. However, due to strain relationship, the marriage with respondent defendant No.l dissolved as per custom prevalent, on 24.5.1985. That respondent/defendant No. 1 thereafter started living separately. That appellant after dissolution of marriage with respondent /defendant No.l performed second marriage. That a son was bom to respondent/defendants No. l on 13.1.1995. That defendant/respondent No.l filed an application under section 125 of the Code of Criminal Procedure 1973 for maintenance and though appellant/plaintiff denied being natural father of respondent/defendant No.2. Yet, the Court by order dated 6.2.2006 directed for grant of maintenance allowance. The order dated 6.2.2006 was affirmed in Criminal Revision No.77/2006 decided on 18.12.2006. Where against, MCrC No. 12204/2007 preferred by appellant/plaintiff was dismissed on 2.1.2Q08. Wherein it was observed that maintenance order passed under section 125 of the Code of 1973 will not bar the civil suit for declaration as to illegitimacy of respondent/defendant No.2.

(3.) The defendant/respondents though did not file written statement but denied the plaint allegation in evidence. The trial Court framed three issues. (1 -A) as to whether the plaintiff/defendants community whether dissolution of marriage is customarily permissible vide ''Chodchuti ''. (1 -B) Whether a alleged dissolution of marriage dated 24.5.1985 was valid (2) as to whether defendant/respondent No.2 having bom after dissolution of marriage would be entitled for maintenance and succession.