KALPANA CHAKRAVATY AND ANR. Vs. MILAN KUMAR BHADURI

JUDGEMENT

(1.) The suit out of which this appeal arises is an off -shoot, of a proceeding which was initiated against the Plaintiff -Respondent under Sec. 488, Code of Criminal Procedure, on 30.10.72. In that proceeding, Appellant No. 1 had claimed maintenance from the Plaintiff for a male child born on 3.9.72 on the allegation that she had conceived the child in the course of an illicit sexual intercourse with the Plaintiff. The learned Magistrate being satisfied that the child, who was impleaded as Defendant No. 2 in the suit, was the legitimate issue of the Plaintiff awarded a month sum of Rs. 75/ - for the maintenance of the child. The Plaintiff did not get any relief by approaching the learned Sessions Judge at well as this Court in revision. The present suit came to be filed thereafter in which the Plaintiff preyed for declaration that Defendant No. 2 was not a child begotten through the Plaintiff and that the Defendants be restrained by permanent injunction to execute the aforesaid order of maintenance. Defendant No. 1 challenged the jurisdiction of the Civil Court in entertaining the suit and stated that the suit was not maintainable. Averments in the plaint were also denied.

(2.) The learned trial court decreed the suit in its entirety. On appeal being preferred, the learned Assistant District Judge upheld the decree declaring the Plaintiff tot to be the father of the Defendant No. 2, but dismissed the suit in so far as it related to the prayer of permanent injunction.

(3.) The Defendants are the Appellants before this Court. In assailing the impugned judgment, Shri D.N. Choudhury has advanced three submissions: (1) the Civil Court's jurisdiction in the matter was barred; (2) the Plaintiff not having asked for the declaration that the order of maintenance was had in the eye of law, the suit was bit by Sec. 34 of the Specific Relief Act; and (3) the finding arrived at by the learned court below that Defendant No. 1 had not conceived the child through the Plaintiff is unreasonable and has been arrived at by placing wrong onus and by misreading relevant evidence, and as such is not maintainable.