Dismissed

Mohammad Arif v. State of U.P. and Another

Allahabad HC4 Aug 2023CRLR/353/2023

Case brief

AI extract

What is this about?

This criminal revision challenged an order awarding monthly maintenance under Section 125 Cr.P.C. to the revisionist's wife and three minor daughters. The court rejected the claim that the third daughter was illegitimate, applying the presumption of legitimacy under Section 112 of the Evidence Act, and dismissed the revision as devoid of merit.

What did the court decide?

The revision petition was dismissed against the order dated 20.12.2022 awarding maintenance.

Mohammad Arif Vs State of U.P. and Another — Maintenance and Alimony | Allahabad HC (2023)

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Court No. - 50 Neutral Citation No. - 2023:AHC:156993

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A.F.R.

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Reserved On: 18.07.2023

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Delivered On: 04.08.2023

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Case :- CRIMINAL REVISION No. - 353 of 2023

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Revisionist :- Mohammad Arif Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Pradeep Kumar Counsel for Opposite Party :- G.A.,Amir Khan

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Hon'ble Ram Manohar Narayan Mishra,J.

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Heard the submissions of learned counsel for the revisionist, learned A.G.A. for the State, learned counsel for opposite party No.2 and perused the material on record.

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By means of present revisionist has assailed the order dated 20.12.2022, passed by Additional Principal Judge Family Court, Court No. 2, Bulandshahar in Maintenance Case No. 174 of 2017 (Km. Huma Vs. Mohd. Arif) under Section 125 Cr.P.C.

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The factual matrix of the case relevant from criminal revision are that applicant Km. Huma moved an application for maintenance under Section 125 Cr.P.C before Principal Judge, Family Court through their natural guardian mother Smt. Madina, wife of Mohd. Arif (present revisionist), seeking maintenance to the tune of Rs. 5,000/- per month. The applicant stated that marriage of Smt. Madina and opposite party No.2 took place around year 2000. Smt. Madina, the natural guardian of the applicant was subjected to matrimonial cruelty by opposite party, her

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husband (Mhd. Arif) and her in-laws due to non-fulfilment of demand of dowry. Four children were born out of their wedlock of which one male child died instantly after birth of three female child namely, Km. Uzma,

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Km. Rehma and Km. Huma (present applicant) survived. The husband and in-laws of Smt. Madina assaulted her badly and tried to kill her on 19.12.2014 and left her near Busstand, Anupshahar when she was pregnant. She took shelter at her parental place and gave birth to female child on 10.07.2015, her name was christened as Huma. The opposite party (Mhd. Arif) works in a primary school as a teacher and was getting salary around Rs. 45,000/- at the time of filing of application in the year 2017. Initially, Smt. Madina, the mother and guardian of respondent No. 2 filed an application for maintenance against her husband which was registered as Maintenance Case No.155 of 2015, wherein she sought maintenance for herself as well as for her two minor daughters Uzma and Rehnuma from her husband as she was deserted by her husband. The present applicant was not born at that time. The Principal Judge, Family Court Bulandshahr allowed the said application partly vide judgement and order dated 10.03.2017 and awarded monthly maintenance to the applicants Smt. Madina to the tune of Rs. 4,500/- and her minor daughters Uzma and Rehnuma to the tune of Rs. 1,500/-. Thus, the Court have awarded monthly maintenance to the tune of total Rs. 7,500/- to Smt. Madina and her two daughters. Subsequently, Smt. Madina filed an application for various protection order including monetary relief under Section 12 of Protection of Women from Domestic Violence Act before Court of A.C.J.M. Bulandshahr, which was dismissed by order dated 29.10.2020 passed by learned A.C.J.M. Bulandshahr. The applicants filed a Criminal appeal under Section 29 of Protection of Women from Domestic Violence Act, which was decided ex-parte vide order dated 20.07.2022 passed by learned Additional Sessions Judge, F.T.C., Court

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No.2 Bulandshahr, whereby the appellate court allowed the appeal of Smt. Madina and others and set aside the order dated 20.10.2020 passed by learned Magistrate, apart from permitting the applicants to live in one room in the house of opposite party Mhd. Arif and others, the court awarded maintenance to the tune of Rs.5,000/- and Rs. 3,000/- total to Rs. 8,000/- per month from the date of order of Rs. 1 lakh lump-sum payment was also awarded as compensation as one time payment to the applicants Smt. Madina and her three minor daughters. The said order was challenged by present revisionist and his family members who were respondents in the case of Domestic Violence Act. In an application under Section 482 Cr.P.C. No. 25268 of 2022 Mhd. Arif and 7 others Vs. State of U.P. and 4 others, wherein a co-ordinate Bench of this Court considered the entire issue in the light of judgment of Hon'ble Apex Court in Rajnesh Vs. Neha and another (2021) 2 SCC 324 and affirmed impugned order dated 20.07.2022 passed by learned Additional Sessions Judge and dismissed the application filed by present revisionist and his family members. In that order, it was also observed that admittedly, no application has been moved by the applicants to set aside the ex-parte judgment dated 20.07.2022 in Application under Section 482 Cr.P.C. A prayer was made to quash the order dated 20.07.2022 passed in Criminal Appeal No. 33 of 2020 directed against order dated 20.10.2020 passed in Misc. Criminal Case No. 55 of 2016 (Arif and others Vs. Smt. Madina and others) under Section 12,18,19,20,22 of Protection of Women from Domestic Violence Act, P.S.- Anupshahar, District- Bulandhshar, whereby the appellants were directed to pay Rs. 8,000/- per month and maintenance to the applicants along with Rs. 1 lakh as one time payment to them. In that case, this Court in order dated 16.05.2023, an application under Section 482 Cr.P.C., this Court did not sustain the contention of learned counsel for the appellants that the judgment of 20.07.2022 passed in aforesaid criminal appeal No. 33 of 2020 was having overlapping effect

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as by order dated 10.03.2017 in proceeding under Section 125 Cr.P.C., the trial Court awarded Rs. 4,500/- to Smt. Madina and Rs. 1,500/- each to her minor daughters, thus the total amount of Rs. 7,500/- per month was awarded as maintenance, which was payable by the husband of opposite party No. 2. This Court also observed that later on, on the birth of third daughter Huma an application under Section 125 Cr.P.C. was moved on behalf of her by her mother (Smt. Madina) and a further maintenance amount of Rs. 4,000/- was also awarded to her from the date of order and at the rate of Rs. 1,500/- from the date of filing of application to date of order dated 20.12.2022. Thus, total maintenance awarded against the present revisionist and payable to present respondent No. 2, her mother and siblings comes to Rs. 19,500/- per month. This Court placed reliance on contention of opposite party Nos. 2 to 5 that the applicant Mohd. Arif was getting salary of Rs. 59,800/- per month in the year 2019 and this amount must have increased by now and the maintenance of Rs. 11,500/awarded vide order under Section 125 Cr.P.C. and Rs. 8,000/- as the exparte judgment dated 20.07.2022 passed by learned Additional Sessions Judge in appeal under Section 29 of Domestic Violence Act.

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Learned counsel for the revisionist submitted that revisionist is paying Rs. 8,000/- to his wife and his daughters in compliance of order dated 20.07.2022 in criminal appeal No. 33 of 2020 filed against order dated 29.10.2020, passed in Criminal Appeal No. 55 of 2016 under the proceedings of Domestic Violence Act. Opposite Party No. 2 has filed present maintenance Case No. 174 of 2017 under Section 125 Cr.P.C. which was dismissed by the court of first instance but in criminal appeal against said order, the Additional Principal Judge Family Court vide impugned order dated 20.12.2022 awarded her maintenance as cited above. In initial maintenance case under Section 125 Cr.P.C. No. 155 of 2015, the Maintenance was awarded to the tune of Rs. 7,500/- per month

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to Smt. Madina for maintenance for herself and her two minor daughters. The case of wife of revisionist Smt. Madina is that her daughter was born on 10.07.2015 in her parental home as she had left her matrimonial home on 19.12.2014. The revisionist had filed a reply in said case in Maintenance Case No. 174 of 2017, wherein he stated that Km. Huma was born out of the wedlock of revisionist and his wife and she was born more than after 280 days of their separation. From perusal of ultrasound of Smt. Madina dated 23.01.2015, it reveals that pregnancy of Madina was about 8 weeks, the ultrasound of 07.04.2015, her pregnancy was about 18 weeks 4 days and from ultrasound report dated 22.06.2015, it reveals that pregnancy was 28 weeks 2 days and the tentative delivery date is shown as 2/3.09.2015. Thus, delivery of third daughter of Smt. Madina was not possible on 10.07.2015 as her third ultrasound was conducted on 22.06.2015, wherein her pregnancy was only 28 weeks 2 days. He further submitted that Smt. Madina has producer her ultrasound report, but not produced birth certificate of her third child before trial court which creates serious doubt regarding date of birth of respondent No. 2 Km. Huma as propounded by her mother in as much as Smt. Madina had lodged an F.I.R. against the revisionist, wherein she has stated that her pregnancy was near about 50 days and in adjournment application, she said that her daughter is born on 03.09.2015. Therefore, Smt. Madina herself stated two conflicting dates regarding birth of respondent No.2. The Trial Court has given wrong finding that from perusal of medical report, it is proved that she was born on 10.07.2015. wherein on file there is no such document as on record where date of birth of Km. Huma is mentioned. He lastly submitted that learned trial court has directed the revisionist to pay the maintenance to respondent No. 2 from date of filing of application without assigning any reason, while it is very clear that revisionist has appeared before the trial Court at a very early stage and he has not committed fault in delayed adjudication of the

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matter. Therefore, he is not responsible for delay caused in decision of the case. Respondent no. 2 is not legitimate child of revisionist and he has wrongly made liable to pay maintenance to her separately. The impugned order dated 20.12.2022, is ex-facie illegal and contrary to the law, therefore, it is liable to be quashed by this Hon'ble Court.

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Per contra, learned A.G.A. and learned counsel appearing for respondent No. 2 also submitted that there is no factual or legal error in impugned order passed by learned court below. The learned court below has affirmed a specific issue in this regard to the effect "whether Km. Huma is daughter of opposite party Mhd. Arift and decided this issue in affirmative after considering all the submissions made by learned counsel for parties and documents referred by the learned counsel for opposite party, who is present revisionist." The learned court below observed in impugned order that the tentative date of delivery of child is shown as 03.09.2015 in third ultrasound report, is tentative date and it cannot be regarded as conclusive. The date of delivery depends on many factors which affects the growth of foetus in the womb of the mother and tentative date of delivery given by doctor may get changed on basis of other medical standards. This court also observed that as the birth of respondent No. 2 Kumari Huma took place within 280 days of the final departure of mother of respondent No. 2 from her matrimonial house, the presumption of legitimacy is in favour of respondent No. 2. Therefore, on the basis of above submissions, learned counsel for respondent prayed that there is no illegality in impugned order passed by court below and same deserves to be affirmed.

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If we go through the ultrasound reports regarding pregnancy of Smt. Madina, the mother of respondent No. 2 filed as Annexure No. 5 to the present revision memo, we find that in third ultrasound of Smt. Madina dated 22.06.2015, the gestation was found to be 28 weeks 2 days

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and expected delivery date was shown as 02.09.2015. Whereas this is case of respondent side that third child born on 10.07.2005. The delivery of a child after 7 months of pregnancy is quite natural although, the normal period of delivery is considered as 9 months from the date of conception. The doctor has shown the delivery date as 02.09.2015 is said estimated date and that may not be treated conclusive. This is also case of respondent No. 2 that the delivery of respondent No. 2 took place at the place of her mother and not in hospital. No hospital record has been placed on record by either side in this respect. The statement in adjournment application moved by the counsel for the mother of respondent No. 2, before court below that the child was born on 03.09.2015 can also not be taken as conclusive proof of the fact that the respondent No. 2 was born on 03.09.2015 as this is a statement of party in her adjournment application filed through her counsel. Inasmuch as if we calculate admitted date of departure of Smt. Madina from place of revisionist to her parental place i.e. 19.12.2014 and for a sake of moment suppose that the child was born on 03.09.2015 as stated by revisionist even then the period of 257 days intervenes in between these two dates and thus, even in that situation also the birth of child is within 280 days. Section 112 of Evidence Act provides as under:-

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Section 112 in The Indian Evidence Act, 1872

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112. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

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In absence of any scientific proof of parenthood of respondent No. 2, there will be a presumption of legitimacy in her favour. In view of above statutory provision as she was born during the continuance of

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marriage between her mother and the revisionist and that too within 280 days after their separation and this is no case of revisionist that mother of respondent No. 2 has contracted marriage with some other person after getting separated from her husband.

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So far as quantum of maintenance is concerned, learned trial court below has awarded maintenance to the tune of Rs. 1,500/- only from the date of filing of application to date of order and Rs. 4,000/- from the date of order to respondent No.2, who is admittedly third daughter of Smt. Madina, who claim that the daughter was born out of her wedlock with the revisionist. This Court in Application under Section 482 Cr.P.C. No. 25268 of 2022 also considered the payment capacity of the revisionist of the amount of maintenance awarded in different proceedings to different amount of maintenance awarded to his wife Smt. Madina, her two minor daughters as well as her third daughter Km. Huma and if total amount of maintenance which is awarded against the revisionist in different proceedings is considered that comes to Rs. 19,500/-. This amount comes around 1/3 of the salary of the revisionist who is engaged in Government service and is a teacher in basic primary school. Therefore, the amount awarded by the court below to the respondent No. 2 cannot be considered as excessive, keeping in view the totality of facts and circumstances related to the case.

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On the foregoing discussions, I find that there is no illegality, irregularity, perversity in the impugned order passed by court below. Present revision is devoid of merits and therefore, it is dismissed accordingly.

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Order Date: 04.08.2023

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Nitika Sri

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Digitally signed by :- NITIKA SRIVASTAVA High Court of Judicature at Allahabad

Mohammad Arif v. State of U.P. and Another

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Mohammad Arif v. State of U.P. and Another

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