INDRA PATEL AND ANR. Vs. KALIA @ BIJOY PATEL

JUDGEMENT

(1.) Both the Petitioners filed application under Sec. 125, Code of Criminal Procedure registered as Misc. Case No. 66 of 1996 in the Court of Judicial Magistrate, First Class, Sohella. They claimed maintenance from the opposite party on the ground that Petitioner No. 1 is the wife of the opposite party and Petitioner No. 2 was born out of the wed -lock. Learned Judicial Magistrate, First Class, Sohella, as per his judgment dated 2.9.1998 rejected the claim of the Petitioner on the ground that Petitioners have not proved their status as wife and child of the opposite party.

(2.) On perusal of the application under Sec. 125, Code of Criminal Procedure and the evidence on record this Court found and learned Counsel for the Petitioners conceded that Petitioner No. 1 has not proved her status as the wife of the opposite party to claim maintenance from him. Mr. S. Misra, learned Counsel for the Petitioners, however, argued that the fact and evidence on record clearly prove that Petitioner No. 2 is the illegitimate child of the opposite party and therefore learned Magistrate should not have rejected the claim of maintenance of Petitioner No. 2. Mr. H.S. Misra, learned Counsel for the opposite party, vehemently opposes the aforesaid contention of the Petitioners of the grounds that

(3.) He also argued on merit and contended that even the Petitioner No. 2 is not entitled to any maintenance. He also argued that this Court being the provisional Court it should not re -assess the evidence unless illegality or perversity is alleged and established so far as the assessment of evidence made by the trial court.