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Bench: JUSTICE R.L. Khurana


Law Point:
No Proof that Daughter is Illegitimate Child. Evidence of Mother Remained Uncorroborated by Direct Evidence or by Circumstantial Evidence. Impugned Order For Grant of Maintenance Set Aside.





1. The present revision petition has been preferred by the petitioner Rajiv Gupta, under Section 397, Code of Criminal Procedure against the order dated 30.3.2001 by the learned Chief Judicial Magistrate, Kinnaur in Criminal Petition No. 93/4 of 1993 under Section 125, Code of Criminal Procedure, whereby maintenance at the rate of Rs. 500/- per month with effect from 10.9.1993 (the date of filing of the petition under Section 125, Code of Criminal Procedure), has been awarded in favour of respondent Km. Dimple Gupta. The parties are hereinafter referred to accordingly as petitioner and respondent.

2. The sole question for determination in the present case is — whether the respondent is the illegitimate daughter of the petitioner and entitled to claim maintenance from him ?

3. The respondent, a minor through her mother Smt. Narain Dassi claiming herself to be an illegitimate daughter of the petitioner filed a petition under Section 125, Code of Criminal Procedure, seeking maintenance at the rate of Rs. 500/- per month. It was averred that Narain Dassi, the mother of the respondent and a resident of Nogli, Tehsil Rampur Bushehar, District Shimla, in the year 1990, was studying in Class X in Government High Court, Nogli, where she came in contact with the petitioner, who was a regular visitor to the school. With the passage of time intimacy developed between them resulting in physical relationship. The petitioner had been assuring Narain Dassi that he would marry her. Narain Dassi started living with the petitioner as his wife.

4. It was further averred that the petitioner, on coming to know about the conceivement, had taken Narain Dassi to Chandigarh for getting the pregnancy aborted. Such pregnancy could not be aborted being of advanced stage. The petitioner thereafter is alleged to have left and discarded the mother of the respondent by leaving her at Solan while on their way back to Shimla from Chandigarh. The respondent was born on 8.7.1991 at Kalpa in district Kinnaur.

5. The petitioner, while resisting the petition and the claim for maintenance put forth by the respondent, denied the respondent to be his illegitimate daughter. He has also denied the relations with Smt. Narain Dassi, the mother of respondent. It was pleaded that he had never cohabited with her.

6. The learned Magistrate upon consideration of the evidence led before him came to the conclusion that the respondent is the illegitimate daughter of the petitioner and as such entitled to maintenance. He, accordingly, vide the impugned order dated 30.3.2001 granted maintenance in favour of the respondent at the rate of Rs. 500/- per month with effect from 10.9.1993.

7. Admittedly, there has been no marriage between the petitioner and Smt. Narain Dassi. The respondent is stated to have been born as a result of illicit relations between them. The only evidence coming on record in this regard is the statement of Smt. Narain Dassi, the mother of the respondent as A.W. 1.

8. This Court in Darje Wangial v. Karam Singh, II (1997) DMC 83=(1997) 2 Sim.LC 277, has held that in a case where a child is alleged to have been conceived and born due to the sexual intercourse between a man and woman with the consent of both the parties, the woman will be a party to that sexual intercourse with her consent. In view of this position, her evidence will be that of an accomplice. Therefore, it will not be safe to rely on the evidence of a woman who alleges that a particular man is the father of the child born to her due to the sexual intercourse with her without proper corroboration especially when the paternity of the child is itself in issue.

9. The High Court of Orissa in Smt. Ahalya Bariha @ Barihani v. Chhelia Padhan, I (1992) DMC 158=1992 Cr.LJ 493, has held that 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.

10. Examining the evidence coming on the record in the present case in the light of the above principle, it can be safely held that the learned Magistrate has erred in holding the respondent to be the illegitimate daughter of the petitioner.

11. A.W. 2 Kunchuk Dolma and A.W. 3 Chandra Devi had been examined on behalf of the respondent to show the intimate relations between the petitioner and A.W. 1 Narain Dassi. In so far as A.W. 2 is concerned, her evidence is not free from doubt. Though initially she had supported the case of A.W. 1, however, when recalled for further cross-examination, she resiled from her earlier statement and stated that she was brought to the Court by A.W. 1 and was made to make a statement by fraud. The manner in which A.W. 2 conducted herself makes her evidence unworthy of reliance. However, one unrebutted fact has come in evidence that A.W. 1 Narain Dassi is her brother’s daughter.

12. A.W. 3 Chandra Devi has deposed that about 10 years back in the month of “Bhadon” A.W. 1 Narain Dassi and the petitioner had stayed in her house for the night and that they had claimed to have married each other without the consent of their parents.

13. During cross-examination, A.W. 3 has gone to state that six/seven years ago she was residing in Sri Lanka. She was examined in Court on 16.4.1996. Therefore, as per her statement in 1989-90 she was in Sri Lanka. If she was in Sri Lanka, how could A.W. 1 and petitioner have stayed in her house in 1990 at Kalpa. A.W. 3, surprisingly, could not give the names of the persons residing in the adjoining houses at Kalpa. Her evidence, therefore, cannot be relied upon for the purpose of corroborating the evidence of A.W. 1.

14. Much reliance was placed by the learned Counsel for the respondent on Ex. DA, copy of the school admission form of the respondent and Ex. P.W.4/A, the copy of the birth entries from the register maintained by the Gram Panchayat.

15. In so far as Ex. DA is concerned, the same is of no help to the respondent. In such admission form the column regarding “name of father” of the child has been left blank. The respondent was admitted to the school by A.W. 1 herself. Form, copy of which is Ex. DA is signed by A.W. 1. She herself in such form has not mentioned the father’s name of the respondent.

16. In the birth entry Ex. P.W. 4/A, the name of father of the respondent is mentioned as “Rajiv Kumar”. No reliance can be placed on the same for the reasons, firstly, the name “Rajiv Kumar” appearing therein has not been connected with the respondent and secondly, the entries were got made by A.W. 1 herself. Therefore, the same is her own statement made before the Registering Authority. It cannot be accepted on its face value without further corroboration.

17. The evidence of A.W. 1 Narain Dassi, the mother of the respondent, has remained uncorroborated either by direct evidence or by circumstantial evidence. Therefore, it cannot be said that the respondent is the illegitimate daughter of the petitioner. The findings of the learned Magistrate which are to the contrary are bad and liable to be set aside.

18. Consequently, the present petition is allowed. The impugned order dated 30.3.2001 of the learned Chief Judicial Magistrate, Kinnaur, are set aside and the application made by the respondent seeking maintenance under Section 125, Code of Criminal Procedure, is dismissed.

19. The amount deposited by the petitioner as maintenance in the Registry of this Court in pursuance of the order dated 22.5.2001 passed in Cr.M.P. No. 202/2001 and as modified on 3.7.2001 along with interest accrued thereon shall be refunded to him forthwith.

Petition allowed.

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