HARI KISHAN Vs. SHANTI DEVI

JUDGEMENT

(1.) THIS is an application u/sec. 482 Cr. P. C. against the order of the Sessions Judge dated 31st July, 1981 passed in criminal revision No. 134/80 whereby the learned Sessions Judge dismissed the applicant's revision petition in proceedings relating to maintenance.

(2.) THE facts may briefly be stated as under leading to the present application -.

(3.) IN that petition on the basis of the non-controverted testimony of the petitioner to the effect that the petitioner had no cohabitation with the respondent from the time of the marriage, and the child is not his. Belie ring his testimony a finding was arrived at that the wife had sexual intercourse with any other parson other than her husband. Issue No. 4 was, therefore, decided in the affirmative in favour of the petitioner against the wife and a decree for judicial separation was passed. IN view of the finding arrived at in the petition for judicial separation, the applicant's case is that when the spouses were never cohabited and the child is not his, the applicant is not liable for maintenance to the minor daughter, and the order is liable to be cancelled. Reply to the petition was filed and issues were framed but thereafter it appears that the matter was not contested by Shanti Devi and the evidence went non-controverted. Learned counsel for the petitioner therefore urged that the decisions rendered in the matrimonial cases should have been given due effect by the learned Magistrate. IN an application u/sec. 125 Cr. P. C. on behalf of a child, paternity has to be established and when there is a decree for judicial separation passed on the basis that after solemnization of marriage, the wife had sexual intercourse with some other person other than her husband alleging that there had been no cohabitation between the spouses and the child is not his; then it should have been found by the learned Magistrate that the applicant is not the father of the minor daughter Asha Kumari and as such he is not liable for maintenance. Learned counsel also urged that the decree for judicial separation having become final, the finding arrived at believing the evidence of the petitioner that the petitioner had never cohabitation with the respondent from the time of the marriage and the child is not his, is binding on the criminal court and it was the obligatory duty of the court in these circumstances to have cancelled the order. Learned counsel for the petitioner places reliance on the decision of the Supreme Court in Nand Lal V/s Kanaya Lal (1 ). It has been observed in this case as under:- "under S. 488, so far as it is relevant to the present enquiry, an illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance, if the putative father having sufficient means neglects or refuses to maintain it. It is suggested that unless the child is admitted by the putative father to be his illegitimate child, the magistrate has no power to make an order for payment of maintenance. This argument, if accepted, would make the entire section nugatory. The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by conferring jurisdiction on the magistrate to make an allowance for the maintenance of the child, by necessary implication, confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the court, before making the order, to find definitely, though in a summary manner, the paternity of the child. "'