Minor Not Biological Child, She can get No Maintenance

Rajasthan High Court

JUSTICE J.B. Garg

Harikishan Vs. Shanti Devi On 4 September 1987

Law Point:
Application for cancellation of maintenance pleading parties after marriage never cohabited and minor not the child of the marriage. Whether order grating maintenance to minor liable to be cancelled — Yes.

JUDGEMENT

1. This is an application under Section 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 applications.

3. The respondent Smt. Shantidevi submitted an application under Section 125 Cr.P.C. for maintenance for herself and for her minor daughter Ashakumari. The present applicant did not appear in that application despite service of notice and final ex-parte order was passed on 19-6-79 granting maintenance to Shanti Devi and Asha Kumari. Thereafter an application was submitted on 30th November, 1979 by the applicant for cancellation of the order dated 19-6-79 mentioning it to be under Section 125 Sub section 4 and 5 Cr.P.C. It was stated in that application that the applicant had filed proceedings for judicial separation and a decree for judicial separation and was passed on 13-4-72. It was found in that petition that the Parties after marriage never cohabited and the child Asha Kumari is not the child from the applicant. Thereafter a petition for divorce was also submitted by the applicant and a decree of divorce has also been passed by the Court of Civil Judge, Senior Division, Akola on 2nd April, 1979 in Hindu Marriage Case No. 96/1978. Reply to the application under Section 125(4) and (5) Cr.P.C. was submitted by the respondent. The learned Magistrate after hearing the arguments dismissed the application on 15-7-80. Dissatisfied with that order, criminal revision petition was filed before the Sessions Judge who by his impugned order dismissed that petition. Hence this application under Section 482 Cr.P.C.

4. It may also be stated that the applicant also availed remedies in this Court one by way of revision petition against the ex-parte order dated 19-6-79 in S.B. Revision No. 36/80 but that revision petition was dismissed on 18-7-80 as not pressed as it was stated that the applicant has already applied before the Magistrate for setting aside the ex-parte order of maintenance. As a matter of fact the application was for cancellation of the order stated to be under Sub-section 4 and Sub-section 5 of Section 125 Cr.P.C. The petitioner also filed an application under Section 482 Cr.P.C. against the order dated 15-7-80 in S.B. Cr. Misc. Application No 128/80 but that application was also dismissed with the observations that the learned counsel for the applicant fairly concedes that the applicant has preferred the revision petition in the Sessions Court, Jodhpur therefore this application under Section 482 Cr.P.C. is not maintainable. This Court, therefore, dismissed the application and it was observed that it will not affect the merits of the revision pending before the learned Sessions Judge. Thus, it would appear that the remedies by way of revision against the main order dated 19-6-79 and remedy by way of an application under Section 482 Cr.P.C. against the order dated 15-7-80 would not in any way affect the present application as the matters were not finally heard and decided and it was left to the applicant to get the alternative remedy availed by him, decided.

5. I have heard Shri P.C. Tatia, learned counsel for the applicant and Shri P.N. Mohanani, learned counsel for the respondent.

6. Learned counsel for the applicant submitted that the courts below have seriously erred in rejecting the applicant’s application despite the fact that the decree for judicial separation was passed in Hindu Marriage Case No. 67/70 on 13-4-72 by the Civil Judge, Senior Division, Akola and thereafter a decree for divorce was also passed on 2-4-79 in the divorce. petition by that very court in case No. 96/78. In the petition for judicial separation one of the issues was as under :—

“Does petitioner prove that the respondent has after solemnization of marriage had sexual intercourse with any other person other than the petitioner ?”

7. 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. Believing his testimony a finding was arrived at that the wife had sexual intercourse with any other person 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 under Section 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. Kanhaiya Lal, AIR 1960 SC 882. It has been observed in this case as under :—

“Under Section 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.

8. Learned counsel for the respondent, on the other hand, submitted that the applicant had moved an application under Sub-sections 4 and 5 of Section 125 Cr.P.C. Unless the applicant proves that the respondent wife is living in adultery the application under Section 125 Sub-sections 4 and 5 Cr.P.C. is liable to be dismissed and the courts below were justified in dismissing the application. In both the Sub-sections there are three grounds for refusal of maintenance and the only ground which can be attracted is that the wife is living in adultery which is a question of fact. Unless the criminal court arrives at the finding that the wife is living in adultery she cannot be denied maintenance. Sub-section 5 only applies in the situation when order bad already been passed for maintenance under Section 135(1).

9. Learned counsel for the applicant then submitted that the application may be treated under Section 127 Sub-section 2 Cr.P.C. as the necessary facts have already been pleaded by the applicant. What the court has to see is as to what is the effect of the decisions rendered by the competent Civil Court in the matrimonial case relating to judicial separation followed by the decree of divorce.

10. I have carefully considered the submissions of the learned counsel for the parties. It is true that in the application submitted by the petitioner, the provision mentioned in Sub-sections 4 and 5 of Section 125. Sub-sections 4 and 5 reads as under :—

(4)—“No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

(5)—“On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.”

11. If the wife is living in adultery or if she refuses to live with her husband without any sufficient reason or if the spouses are living separately by mutual consent, in these three situations the wife is not entitled to receive any maintenance from her husband under Section 125 Cr.P.C. and in ail these three situations even when the order has already been passed, the Magistrate is conferred with the power to cancel that order. For the applicability of Sub-section 4 and Sub-section 5 any of the three situations has to be found as a fact. This finding may be arrived at, if necessary after recording of evidence if led by the parties, or even on the basis of the decision rendered by the competent civil court but the finding should be entered as contemplated in these provisions. It may be stated that in the present proceeding, I am not concerned with the award of maintenance to the respondent Shanti Devi. This application is confined to the question of maintenance to Asha Kumari the minor daughter. This application was not admitted by this Court with regard to the maintenance awarded to Shanti Devi. This application was admitted with regard to the grant of maintenance to Asha Kumari. The main question that arises for consideration in the present application is that when a finding has been given by a competent civil court and on this aspect the applicant’s un-controverted statement has been believed that the spouses bad never cohabitated and the child is not his. In the face of such a clear and unequivocal view of the matrimonial court, would it be proper for the criminal court to disregard that finding and refuse to cancel the order of maintenance passed earlier. The provision mentioned in the application is not material. In my opinion, the application should be treated to be an application under Section 127 Sub-section 2 Cr.P.C. as necessary facts have been pleaded in the application as to what orders have been passed in the matrimonial case and what findings have been arrived at. In view of the findings arrived at in the petition for judicial separation, the prayer made is that the order of maintenance be cancelled, Sub-section 2 of Section 127 reads as under :—

“Where it appears to the Magistrate that, in consequences of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.”

13. The next question that may arise is from what date the order of cancellation shall be effective. The order of cancellation under Sub-section 2 of Section 127 Cr.P.C. shall be effective only prospectively. I have already considered the language of Section 127(2) which amply empowers the Magistrate to cancel or vary his order in the light of the decision of the competent civil court and till then it will remain effective. So from the language used in the provision, it may be stated that the order that may be passed under Sub-section 2 of Section 127 shall be prospective in operation. In support of this view reference may made to a decision of Punjab High Court Balkar Singh v. Balraj Singh, 1983 (2) 284. It has been held in this case that Section 127(2) of the Code enjoins that where after an order for maintenance passed in favour of the wife under Section 125(2) of the Code, the husband obtains a decree necessitating the cancellation of the order, the court shall cancel or vary the order. The legislature under Section 125(2) of the Code has given power to the Magistrate to date back the order of the application but does not give any such power under Section 127(2) of the Code. It was further held that the order of cancellation of maintenance always operates prospectively and not retrospectively. Thus the order can be cancelled prospectively. This application in relation to Asha Kumari, therefore, deserves to be allowed.

14. Accordingly this application vis-a-vis Asha Kumari is allowed and the order of maintenance passed by the Magistrate for the grant of Rs. 60/- per month on 19-6-79 is cancelled with effect from today and in case she had already become major, the order shall be valid only upto the date of her majority and it shall stand cancelled from the date of her attaining majority.

Application allowed.

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