Applicant sought revision against Family Court order granting maintenance to minor child. Court held circumstantial evidence proved paternity and dismissed revision, affirming order under Section 125 CrPC.
Revision application dismissed, Family Court order upholding maintenance claim for respondent minor child allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Cri.Rev.Appln.150.10.odt
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 150 OF 2010
Premsingh S/o Sandu Singh Barwal
..APPLICANT
-VERSUS-
Nandabai W/o Premsingh Barwal and another
..RESPONDENTS
Advocate for Applicant : Mr. N.S. Jaju h/f Mr. A.S. Bajaj Advocate for Respondents : Mr. W.S. Jadhav
CORAM : ABHAY M. THIPSAY, J. Dated: February 18, 2014
ORAL ORDER :-
The respondents had filed an application in the Family Court under the provisions of Section 125 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) praying that the applicant be ordered to pay maintenance to them, as contemplated under the said provision. The respondent no.1 claimed that she was legally wedded wife of the applicant, and that, the respondent no.2 was their minor child. The applicant took a stand before the Family Court that he was not husband of the respondent no.1 at all. He claimed that the respondent no.1 was a stranger for him. He also clearly denied the paternity of the respondent no.2. The Family Court, after holding due inquiry into the matter, came to the conclusion that the respondent no.1 had
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failed to establish that she was the legally wedded wife of the applicant. The Family Court, however, held that the respondent no.2 was proved to be illegitimate son of the applicant. Holding so, the Family Court allowed the application filed by the respondents partly, by directing the applicant (respondent before the Family Court) to pay maintenance at the rate of Rs. 1500/- per month, only to the respondent no.2 herein. As regards the claim of maintenance, of respondent no.1, the Family Court rejected the same.
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Jagannath Mhasalekar before performing the marriage with the present applicant; and that, she had not obtained any divorce from her previous husband Jagannath. Though much can be said about the said finding, which has been arrived at only on the basis of such solitary admission, since no challenge to this finding of the Family Court has been given by the respondent no.1, I do not wish to go into the correctness of this finding.
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documents showing that the applicant was projected as the father of the respondent no.2 in the Municipal record in respect of the birth of the respondent no.2. The name of the applicant is mentioned as the father of the respondent no.2. Also, a certificate issued by the Headmaster of a Primary School indicated the applicant to be the father of the respondent no.2. Apparently, there was photograph of the applicant and both the respondents on the said certificate. This certificate was issued on the basis of entries in the school register.
Khatalsaheb Wd. Khadirsaheb Inamdar and others V/s Ameersaheb and others (1995 AIHC 5416 ) to support the contention that the entries in the birth or death extracts could be taken as proof only of birth and death of the concerned persons and such documents can not be used to prove paternity of a person. Though this proposition cannot be disputed, the fact that the applicant’s name was projected as the husband of the respondent no.1 and as the father of the respondent no.2 at a point of time when there was no dispute, is undoubtedly relevant. Evidence has to be assessed in an intelligent manner and versions of the parties and their witnesses are to be tested on the touchstone of the probabilities. The case of the applicant was that
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the respondent no.1 was actually a stranger to him. This case has been shattered from the evidence on record and the least that can be said that they certainly knew each other. The question then arises is that why then the applicant has taken the stand that the respondent no.1 was a stranger to him. Obviously, it was for the purpose of misleading the Court and out of the fear that the admissions of association between him and the respondent no.1 might lead the Court to form a conclusion about the paternity of the respondent no.2.
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applicant. He is, therefore, entitled to claim maintenance from the applicant under the provisions of Section 125 of the Code.
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respondent no.2 appears to have been born when the applicant and the respondent no.1 were residing together and when there is sufficient circumstantial evidence indicating that he was treated as their son by both of them, the conclusion arrived at by the Family Court cannot be faulted at all.
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meant for deciding the civil rights of the parties finally. It is meant for providing speedy relief to neglected wives and children. The object of the said provision is to prevent destitution and vagrancy. The legislature in its wisdom has not made the order passed under the said provision appealable. The revisional jurisdiction available to this Court is meant to be exercised for the purpose of correcting a manifest error of law resulting in miscarriage of justice. The revisional jurisdiction, which, even otherwise is to be sparingly exercised, should be exercised more cautiously while dealing with an order granting maintenance under section 125 of the Code.
( ABHAY M. THIPSAY, J. )
sga/-
2 issues framed by the court
Whether the respondent minor child is entitled to claim maintenance from the applicant.
Whether the Family Court's finding of paternity should be disturbed on revisional grounds.
Colour shows how this judgement treated each authority
Khatalsaheb Wd. Khadirsaheb Inamdar and others V/s Ameersaheb and othersReferred¶30
(1995 AIHC 5416)
2 provisions across 2 enactments
Premsingh S/o Sandu Singh Barwal
Nandabai W/o Premsingh Barwal
another
ABHAY M. THIPSAY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
