ALPANA Vs. MOHANLAL

JUDGEMENT

(1.) Miss Alpana is a minor. She has filed this petition under S. 482, Cr. P.C. read with Art. 227 of the Constitution of India through her mother and natural guardian, Smt. Sarla Devi wife of respondent Mohan Lal. Miss Alpana is aggrieved by the judgment dated 27/11/1991 passed by the Sessions Judge (Forests), Shimla, whereby the judgment dated 24/12/1988 of Sub-Divisional Judicial Magistrate, Rampur Bushahar, was affirmed. The Sub-Divisional Judicial Magistrate had dismissed the petition under S. 125, Cr. P.C. filed by Miss Alpana for granting her maintenance, holding that she is not the daughter of respondent Mohan Lal.

(2.) There is no dispute that Smt. Sarla Devi, the mother of Miss Alpana, is the wife of respondent Mohan Lal and their such relationship is subsisting. They were married in the year 1983. On 22/03/1986, Smt. Sarla Devi filed a petition under S. 125, Cr. P.C. for maintenance for herself and for her first daughter, Miss Kalpana. The petition was resisted by respondent Mohan Lal but it was ultimately allowed by the Sub-Divisional Judicial Magistrate, Rampur Bushahar, vide his judgment dated 16/11/1987. An amount of Rs. 150.00 per month was awarded as maintenance to Smt. Sarla Devi. No maintenance was allowed to her daughter Miss Kalpana as during the pendency to the petition, her custody was taken over by the respondent Mohan Lal. This judgment became final between the parties as no appeal was filed against it.

(3.) In the meantime, another daughter, the present petitioner, Miss Alpana, was born to Smt. Sarla Devi and another petition under S. 125, Cr. P.C. was filed on 16/02/1988 for granting her maintenance. In reply to this petition, respondent Mohan Lal took the stand that Miss Alpana is not his daughter and he was not bound to maintain her. After trial, this petition was dismissed by the Sub-Divisional Judicial Magistrate, Rampur Bushahar, accepting the contention of respondent Mohan Lal that Miss Alpana was not be gotten from him. It was further held that the presumption arising under S. 112 of the Indian Evidence Act that every child born during the subsistence of valid marriage is legitimate stood rebutted on the basis of record, mainly, the statement of Smt. Sarla Devi herself. These findings were affirmed by the Sessions Judge (Forests), Shimla. Hence the present petition.