Court:ORISSA HIGH COURT
Bench: JUSTICE P.K. Tripathy
SMT. DHANI NAYAK & ORS. Vs. SANAKARA NAYAK On 24 February 2003
Section 125(3) Proviso — Maintenance : Quantum : Period of limitation : Commencement : Discussed.
2. Both the criminal revisions are heard analogously being against the common impugned order and they are disposed of in the following manner.
3. Petitioners in Criminal Revision No. 705 of 2001 filed application under Section 125, Cr.P.C., registered as Criminal Misc. Case No. 29 of 1990 in the Court of J.M.F.C., Nimapara and petitioner in Criminal Revision No. 517 of 2001 was the sole opposite party in that proceeding. For the sake of convenience in reference they are hereinafter described as the petitioners and the opposite party respectively.
4. Petitioner No. 1 claiming herself to be the legally married wife and petitioners 2 and 3 being children out of wedlock claimed for maintenance from the opposite party on the allegation of cruelty and desertion besides their incapacity to maintain themselves. That application was resisted by the opposite party with the specific plea that petitioner No. 1 is not his legally married wife and petitioners 2 and 3 are not the children out of such wedlock.
5. In course of hearing both the parties adduced oral and documentary evidence in support of their respective pleas. Amongst such evidence the judgment and decree passed in title Suit No. 169/580 of 2000/1996 by learned Civil Judge (Senior Division), Nimapara on 12.5.2000 assumed considerable importance for the learned Magistrate to disentitle petitioner No. 1 to get maintenance on the ground that the decree passed by the Civil Court is to the effect that petitioner No. 1 is not the legally married wife of opposite party. Those judgment and decree has been respectively marked as Exts. A and B. So far as petitioner No. 2 is concerned, referring to Ext. C i.e., the certificate granted by the Board of Secondary Education, wherein the date of birth of petitioner No. 2 has been noted as 15th October, 1977, learned J.M.F.C., Nimapara disentitled him from maintenance on the ground that by the date of the impugned judgment passed on 24.7.2001 petitioner No. 2 had already become major. However, even if accepting the evidence on record in proof of the factum that petitioner No. 1 is not the legally married wife of opposite party, learned J.M.F.C. recorded the status of the petitioner No. 3, a minor girl, to be an illegitimate child of opposite party and accordingly granted monthly maintenance in her favour at the rate of Rs. 450/- from the date of the application under Section 125, Cr.P.C. i.e., with effect from 10th August, 1990.
6. The aforesaid order satisfied neither of the parties and, therefore, while the petitioners have preferred Criminal Revision No. 705 of 2001 to interfere with the impugned order and to pass order for maintenance in favour of the petitioners 1 and 2, the opposite party has preferred Criminal Revision No. 517 of 2001 to dismiss the claim of maintenance granted in favour of petitioner No. 3.
7. In support of their contention petitioners state that the judgment and decree (Exts. A and B) are a nullity having been obtained behind the back of petitioner No. 1 and without adding petitioners 2 and 3 as parties to that proceeding and apart from that because of practising fraud on the Civil Court by suppressing material facts by not stating in the plaint relating to order of interim maintenance granted by J.M.F.C. in favour of the petitioners and that order having been confirmed by learned Sessions Judge, Puri. Learned Counsel for the petitioners further challenges the impugned order on the ground that the evidence on record, barring Exts. A and B, are sufficient to prove the status of petitioner No. 1 as the wife of the opposite party to claim and get maintenance and that the approach of the learned Magistrate in declining to give maintenance to petitioner No. 2 on the ground attaining majority is illegal and non-sustainable because maintenance should have been awarded in his favour from the date of his application till the date he attained majority.
8. The opposite party, on the other hand, while banking on Exts. A, B and C supports the impugned finding with respect to disentitlement of petitioners 1 and 2 in making a claim for maintenance under Section 125, Cr.P.C., he argues that on the similar analogy and in the absence of proof of sexual relationship between petitioner No. 1 and opposite party, petitioner No. 3 cannot be regarded as illegitimate child of opposite party so as to saddle him with payment of monthly maintenance. The opposite party further argues that by the date of application, as per the averment in the petition under Section 125, Cr.P.C. petitioner No. 3 being aged one and a half years, grant of maintenance at the rate of Rs. 450/- in her favour was in excess of the requirement of petitioner No. 3 and the paying capacity of opposite party.
9. After hearing the aforesaid argument and going through the evidence on records as well as the findings recorded by learned Magistrate, this Court finds that the decree as it stands is binding on petitioner No. 1 and it is neither a nullity nor suffers from any fraud inasmuch as in the suit for declaration that petitioner No. 1 is not his wife, opposite party was not required to mention in the plaint any and every order passed in the proceedings under Section 125, Cr.P.C. save and except the material facts which gave rise to the cause of action in support of the claim or the relief which the plaintiff sought. The judgment in the civil suit (Ext. 4) clearly reveals that in the plaint it was mentioned about the claim of maintenance by the petitioners as the reason for seeking the declaratory relief that petitioner No. 1 is not his legally married wife and petitioners 2 and 3 are not his children. This Court finds from Ext. A that learned Civil Judge (Senior Division), Nimapara on a just and proper approach to the facts and evidence, which was available to him, passed a decree only before the opposite party and petitioner No. 1 and that decree does not touch on the rights of petitioner Nos. 2 and 3.
10. There is no controversy between the parties, even while placing argument before this Court regarding pendency of application for setting aside the ex parte decree (Exts. A and B). Be that as it may, as on the date there is no evidence on record to show or suggest that the effect of Exts. A and B has been taken away by any order passed by any competent Court of jurisdiction. Therefore, learned J.M.F.C. was correct in his approach in respecting and accepting Exts. A and B to disentitle petitioner No. 1 from maintenance under Section 125, Cr.P.C.
11. So far as petitioners 2 and 3 are concerned, learned J.M.F.C. has not recorded any finding against the petitioners or in favour of opposite party to exempt the opposite party from payment of maintenance under Section 125, Cr.P.C. In that connection, he has taken note of the voters list and has made a valid presumption relating to the sexual relationship between petitioner No. 1 and opposite party so as to give petitioners 2 and 3 identity as the illegitimate children of opposite party. A factual finding recorded in that respect by the Court below in the absence of illegality or perversity is not liable to be interfered with by this Revisional Court. Therefore, on record the finding that petitioners 2 and 3 are the illegitimate children of opposite party remains proved. In that respect, opposite party is without any answer as to why he did not add petitioners 2 and 3 as party to the civil suit for seeking similar relief like the one which he sought for against petitioner No. 1. That is another circumstance which goes against the opposite party.
12. As rightly argued by learned Counsel for the petitioners, when the status of petitioner No. 2 as the illegitimate son of opposite party is proved on record and that he was a minor by the date of the application, therefore, learned Magistrate committed an illegality by refusing to grant him maintenance on the ground that at a subsequent stage he attained majority. That illegality is remedied by interfering with that order of learned Magistrate. In other words, during the tenure of his minority petitioner No. 2 as per this finding of this Court is entitled to monthly maintenance when admittedly he was not provided with any such maintenance by the opposite party. Logic and reasoning are also equally applicable in favour of the petitioner No. 3 for entitling her to get maintenance.
13. After recording the aforesaid finding the consequential consideration is what should be the quantum of maintenance in favour of each of petitioners 2 and 3. In that respect, there is no specific evidence available from the side of either party relating to the quantum of income of the opposite party by the date of application. Under such circumstance taking into consideration the factum that he was an employee under the Railway Department and also looking to the bare needs of the petitioner Nos. 2 and 3 at the relevant time, this Court directs that petitioner No. 2 is entitled to a monthly maintenance of Rs. 250/- (two hundred and fifty) from the date of the application till the date he attained majority and such maintenance due to him be paid by the opposite party either in lumpsum or in instalments within a period of three months, failing which petitioner No. 2 shall be entitled to execute that order in accordance with law. So far as petitioner No. 3 is concerned, since she was one and half years old by the date of the application, therefore, this Court grants monthly maintenance to her at the rate of Rs. 150/- (one hundred and fifty) for the first five years, at the rate of Rs. 250/- (two hundred and fifty) for the subsequent five years and thereafter at the rate of Rs. 300/- (three hundred) till the date she is entitled to get such maintenance. Arrears of maintenance due to her be paid to her by the opposite party either in lumpsum or in instalments within a period of six months from today, failing which petitioner No. 3 shall be entitled to realise the same through due process of law. The period of limitation as per provision in first proviso to Sub-section (3) of Section 125, shall commence on expiry of three months in the case of petitioner No. 2 and on expiry of six months in the case of petitioner No. 3.
In view of the above order Criminal Revision No. 705 of 2001 of the petitioners is allowed in part and Criminal Revision No. 517 of 2001 filed by the opposite party is allowed in part by modifying the quantum of maintenance in favour of petitioner No. 3.
Revision partly allowed.