LAL BAHADUR PRADHAN Vs. KAMALA PRADHAN

JUDGEMENT

(1.) This revision has been directed against the Judgment of the learned Judicial Magistrate, North and East Sikkim allowing the application for maintenance filed by the respondent and awarding Rs. 600/- per month for respondents No. 1, 3 and 4 as maintenance allowance.

(2.) Case of the respondent No. 1 is that she was legally married to the petitioner in the year 1981 and out of their wedlock petitioner Nos. 2, 3 and 4 were born. Till 1987, the petitioner and the opposite parties lived together peacefully but when the petitioners remarried and brought a second wife, he started ill treating respondent No. 1. Respondent No. 1 made a complaint before the local Panchayat, Aritar Block, East Sikkim as a conseouence of which the petitioner agreed to pay a sum of Rs. 350/- per month as maintenance to the respondents and also agreed to give the right and title of half share of his house, dry fields and paddy fields situated at Aritar. But the petitioner did not comply with the agreement. He instead sent Rs. 200/- per month only for about six months and thereafter stopped sending that also and hence a petition under Section 488 of Code of Criminal Procedure was filed in Court on 26. 10.1990.

(3.) The petitioner in his reply admitted that he had legally married respondent No. 1 in 1981 and respondent Nos. 2 and 3 only were born out of their wedlock. He has asserted that respondent No. 4, minor daughter was not born out of their wedlock and the respondent No. 1 is leading an adulterous life. He further asserted that he had been undergoing police training at Paljor Stadium, Gangtok from 1st June, 1936 to 19th June, 1987 and therefore, he had no access/opportunity or occasion for cohabitation with respondent No. 1. While he was under training respondent No. 1 deserted the matrimonial home and went to her FatherTs house. After the training the petitioner went to the house of respondent No. ls father to bring her back but she declined and therefore he brought respondent No. 2 with him for his education and he is staying with him. As such maintenance for respondent No. 2 cannot he claimed. He has further asserted that after the training, on the advise of his parents and before the respondent No. 1 approached the Pancha in 1988, the petitioner had started sending Rs. 200/-per month suo motu for the maintenance of the petitioners. In 1988 respondent No. 1 approached the Panchayat stating that the amount of Rs. 200/- was not sufficient and therefore. the petitioner agreed (vide Exhibit P) to pay Rs. 150/- per month and, also agreed to provide a portion of the house where she could live. However, respondent No. 1 did not start living in the house provided by the petitioner, so he did not pay Rs: 350/- per month as agreed before the Panchayat, further the petitioner came to know that respondent No. 1 was selling liquor and leading an adulterous life and was also having illicit relation with one Dilip Gurung. Learned trial Court lifter recording evidence allowed the petition and awarded a sum of Rs. 600/- as maintenance for respondent Nos. 1, 3, and 4. It is against this order that the present petition has been filed. Learned Counsel for the petitioner has drawn my attention to Venkateswarlu v. Venkatanarayana and A.I.R. 1969 Madras. p. 235 Vira Reddy v. Kistamma and has submitted that the presumption under Section 112. Evidence Act is not conclusive but it rebuttable either by director circumstantial evidence and the standard of proof required for rebutting the presumption is not that of beyond reasonable doubt. He has further submitted that the approach of the learned trial Court is not in accordance with law and has failed to appreciate the evidence in a proper manner. Since respondent No. 1 has admitted in her statement on oath, recorded on 19.3.199 1 that she had been deserted 5 years before she was giving evidence and in face of the statement of the petitioner on oath that he had no chance of cohabitation with respondent No. 1 the trial Court ought to have come to the conclusion that respondent No. 4 had not been born out of the wedlock of the petitioner and respondent No. 1. It was not necessary for the petitioner to prove as to whose child the respondent No. 4 was. If respondent No. 4 was not the child of the petitioner then it will be obvious that respondent No. I, by indulging in adultery, had conceived respondent No. 4 and therefore was not entitled to any maintenance whatsoever.