LAXMINARAYAN PATNAIK Vs. SAUDAMINI PATNAIK

JUDGEMENT

(1.) Opposite party (husband) in Misc. Case No. 13 of 1986 in the Court of the Sub-Divisional Judicial Magistrate Jaypore is the petitioner who challenged the order passed by the learned Sub-Divisional Judicial magistrate granting a sum of Rs. 200/- (Rupees Two hundred only) per month as maintenance against him in favour of the opposite parties, the wife and daughter aged one year, under S. 125 of the Code of Criminal Procedure.

(2.) The short facts of the case are as follows : The present opposite party No. 1 (housewife) alleged to have married the petitioner who is an Amin working in Upper Colab Project drawing a sum of Rs. 450/- per month. According to the opposite party No. 1 since there was failure in payment of dowry by her father to her husband, there was disention in the family and she was tortured by the members of her in-laws including her husband and was driven out from her matrimonial house with her child. She having no income of her own, filed the said Misc. Case in the Court of the Sub-Divisional Judicial Magistrate, Jeypore claiming a sum of Rs. 500/- as maintenance for herself and her only daughter.

(3.) The husband (petitioner), however, took the plea that the child was not his and was begotten by another by name Narayan prior to the marriage of the present opposite party No. 1 with him and after this fact came to light in the month of May 1985, a lady doctor was asked to examine her who had opined that she was carrying a child of above four months in the foetus. The petitioner became suspicious about the paternity of the child as the marriage was concluded between the parties on 1-3-85. In the presence of the father of opposite party No. 1, the matter was settled and an agreement was entered into between the petitioner and opposite party No. 1 wherein the opposite party No. 1 admitted that the child was not that of the present petitioner and was begotten by another prior to the marriage and she would like to go away from the house (her matrimonial house) with the child so that both the parties may treat this marriage to be rescinded and each of them would have the option to take another spouse according to his/her wish. The present petitioner, therefore, claimed that the present opposite party No. 1 having left the matrimonial house voluntarily and the child being that of another, he would not be liable in law to pay any sum as maintenance to the opposite parties under S. 125 of the Code of Criminal Procedure.