PREMLAL Vs. LEELABAI

JUDGEMENT

(1.) BEING aggrieved by the order dated 7th January 2008 passed by 1st Additional Sessions Judge, Shajapur in Cr. R. No. 193/07 whereby the order dated 09/08/07 passed by Chief Judicial Magistrate, Shajapur in Criminal case No. 113/06 whereby the application filed by the respondents U/s 125 Cr. P. C. was allowed in part and the maintenance was awarded @ Rs. 500/- per month to the respondent No. 2 was maintained, the present petition has been filed.

(2.) SHORT facts of the case are that the respondents filed a petition U/s 125 cr. P. C. for grant of maintenance alleging that the respondent No. 1 is the wife of petitioner. It was alleged that petitioner married with respondent no. 1 without disclosing the fact that he is already married to some one else. It was alleged that after the marriage respondent No. 1 came to know that petitioner was already married to Gulab Bai. It was alleged that out of the wedlock respondent No. l has delivered a son Sandeep respondent No. 2 herein. It was alleged that respondent no. l was subjected to cruelty and was compelled to leave the house. It was alleged that respondents are unable to maintained themselves, while petitioner is able to maintain them. It was prayed that petition be allowed and the maintenance @ Rs. 3,000/- per month be awarded. Petition was contested on various grounds by the petitioner including on the ground that respondent No. l is not the wife of the petitioner and respondent No. 2 is not son of the petitioner. It was alleged that respondent No. 1 is the wife of one Rajaram from whom respondent No. 1 is having two children. It was also alleged that petitioner is married to Gulab Bai and is also having children from her. It was alleged that since the respondent No. l is wife of rajaram and respondent No. 2 is not the son of petitioner, therefore, petition filed by the respondent be dismissed. After holding summery inquiry learned Trial Court dismissed the application filed by the respondent No. 1 but allowed the application filed by respondent No. 2 and awarded maintenance @ Rs. 500/- per month, against which a revision petition was filed which was dismissed, hence this petition.

(3.) MR. MANISH Vijayvargiya, learned counsel for petitioner argued at length and submits that the impugned order passed by the learned Courts below is illegal and deserves to be set aside. It is submitted that since the respondent no. 1 was married to one Rajaram and no divorce took place between them, therefore, it has to be presumed under law that the respondent No. 2 is the son of respondent No. 1 from her husband Rajaram. For this contention reliance is placed on Section 112 of indian Evidence Act. It is submitted that in the facts and circumstances of the case the impugned order passed by the learned Courts below are illegal, incorrect and deserves to be set aside. Learned counsel placed reliance on a decision in the matter of Mrs. Raji Bai Ammal Vs. Mohamed Nathar Sahib, Reported in AIR (29)1942 Madras 251 wherein Madras High Court has observed that in a petition for maintenance by a married woman against a third person as mother and guardian of minor child alleged to have been born out of illegal intimacy with that third person all admissions of paternity by that third person are irrelevant if the woman fails to prove that she and her husband had no access at the time when the child could have been begotten. Further reliance is placed on a decision in the matter of raghavan Pillai Vs. Gourikutty Amma, Reported in AIR 1960 Kerala 119, wherein it was held that in an application under Section 488 by a woman against her paramour for the maintenance of their alleged child, where the husband of the woman is living and their marriage is not dissolved, the woman must prove the non-access of the husband with her during the relevant period. Further reliance is placed on a decision in the matter of Mrs. Raji Bai Ammal Vs. Mohammed Nathar sahib, Reported in AIR (29) 1942 Madras 251 wherein Madras High Court has held that in a petition for maintenance by a married woman against a third person as mother and guardian of minor child alleged to have been born out of illegal intimacy with that third person all admissions of paternity by that third person are irrelevant if the woman fails to prove that she and her husband had no access at the time when the child could have been begotten.