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AHALYA BARIHA @ BARIHANI Vs. CHHELIA PADHAN

Judgement

 
Court: ORISSA HIGH COURT

Bench: JUSTICE A. Pasayat

AHALYA BARIHA @ BARIHANI Vs. CHHELIA PADHAN On 19 July 1991

Law Point:
Maintenance — Petitioner’s application for maintenance for the illegitimate child from the opp. party — Trial Courts Order, reversed by Additional Session Judge — Ground — Credible evidence, corroborating the assertions of paternity of the child — Whether correct ? (Yes).

 

 

JUDGEMENT

 

Petitioners assails correctness of order passed by the learned Additional Sessions Judge, Bargarh, holding that the petitioner had failed to establish that she was entitled to any monthly allowance, for an illegitimate child, from the opposite party. The learned Sub-ordinate Judge and Judicial Magistrate, first class, Padampur, had granted such allowance, which was reversed in revision by the learned Additional Sessions Judge.

2. Petitioner claimed Rs. 50/- per month from the opposite party on the ground that latter was father of her illegitimate child, which was born out of illicit sexual relationship between them. Petitioner examined four witnesses to further her case, while opposite party examined five. Two documents were exhibited by petitioner purporting to show that the village committee had accepted the relationship between the parties, and the birth of the child was from their illicit sexual relations. The trial Court accepted the prayer. The learned Additional Sessions Judge reversed the order holding that in order to be entitled to maintenance in terms of Section 125 (1) of the Code of Criminal Procedure, 1973 (in short ‘the Code’), it has to be established by credible evidence, corroborating the assertions of paternity of the child. According to him, the materials on record did not establish it.

3. The learned Counsel for the petitioner submits that there has been improper evaluation of evidence on record, and material evidence has been kept out of consideration. According to him, the two documents containing decisions of the village committee have been misinterpreted and though they establish the case of the petitioner beyond a doubt, they have been erroneously held to be irrelevant.

4. The learned Counsel for the opposite party, however, submits that on elaborate analysis of evidence, the learned Additional Sessions Judge has arrived at right conclusions and therefore, there is no scope for interference in this revision application.

5. The object of Section 125 of the Code is to provide a summary remedy to save dependants from destitution and vagrancy and this is to serve a social purpose, apart from independent of the obligations of the parties under their personal law. The right of the child legitimate or illegitimate under the Code is an individual right of the child in his or on her own right, independent of the mother. When a woman claims maintenance on behalf of a minor child out of wedlock against his alleged putative father, the on us is on her to show that the child could only have been born through the alleged father under the circumstances of an exclusive relationship See AIR 1962 Mad. 141 : B. Mahadeva Rao v. Yasoda Bai, and 1976 Cr.LJ 1507 : Durairaju v. Neela. In such a case the woman being a highly interested person, the Court has a duty to see that her statement gets some independent corroboration, direct or circumstantial, that the claimant could have conceived the child when she and the alleged father had access to each other.

6. Section 125 aims not to punish for the past, but to prevent future vargancy by compelling those who are capable, to support those who are unable to support themselves and have a moral claim to support. See AIR 1963 SC 1521 ; Mst. Jagir Kaur and Another v. Jaswant Singh. While deciding the case of entitlement of a child paternity and not legitimacy has to be seen. Where maintenance is claimed for an illegitimate child from an alleged father, it is not enough that the defendant would have been the father, but the Court has to find out that in all reasonability no one else could have been the father. The evidence in this case falls short of that requirement. The so-called decisions of the village committee on which strong reliance has been placed is of no assistance to the petitioner, because it is not shown that the opposite party had conceded to be bound by it. On the other hand, the evidence of the witnesses is discrepant on the question whether he was at all present when the alleged decisions were taken. While some assert his presence, others accept his absence. The substance of decisions of the committee has been described differently by the witnesses. This aspect has been highlighted by the learned Additional Sessions Judge. I find no perversity in the conclusions or reasonings.

7. The revision application is, accordingly, dismissed.

Application dismissed.

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