Judgement

NATARAJAN, J.:- This is an unfortunate case where the High Court has quashed an order of maintenance passed in favour of a minor child Tarana Farooq by the Special Judicial Magistrate No. 1, Rampur under Section 125, Cr. P.C., in exercise of its powers under S. 482, Cr. P.C. The High Court has, however, deemed it fit to grant a certificate to the appellant Dukhtar Jahan, the mother of the minor child, under Article 134(1)(c) read with Article 134A of the Constitution to prefer an appeal to this Court for consideration of a question of law formulated as under :-

"Whether, in an application under Section 482, Cr. P.C. the High Court can interfere with concurrent findings rendered by the Courts below".

2. As we find the appeal is capable of being disposed of on the basis of other materials, we do not feel called upon to answer the question of law formulated for consideration by the High Court.

3. We may now have a look at the facts of the case. The appellant Dukhtar Jahan and the respondent Mohammed Farooq who were already related as first cousins, being the issues of two sisters, were married on 11-5-1973. The marriage lasted only for about 17 months since the respondent divorced the appellant on 16-10-1974. However, when the parties were in wedlock the appellant delivered a female child named Tarana Farooq on 5-12-1973. After the respondent effected the divorce in October 1974, the appellant filed a petition under Section 125, Cr. P.C. in the Court of the Special Judicial Magistrate No. 1, Rampur for grant of maintenance to her and the child at Rs. 150 p.m. and Rs. 50 p.m. respectively. The appellant however gave up the claim of maintenance for herself as the stand of the respondent was that he had paid her the Maher and the amount payable for the Iddat period and that he had also returned all the articles given by way of dowry. The enquiry in the petition was, therefore, confined to the claim of maintenance for the child Tarana.

4. The respondent refuted his liability to provide maintenance to the child on the ground that he was not the father of the child and that the child had been conceived even before marriage and the appellant had suppressed the fact of her being enceinte at the time of the marriage.

5. While the appellant examined herself and another witness to substantiate the claim for maintenance for the child, the respondent examined three witnesses besides himself to refute the claim. Of those three witnesses, two have spoken about the payment of Mahr etc. to the appellant and hence we need mention only about the testimony of D. W. 2 Abdul Asad. This witness was a Panchayat Sevak and he has deposed that he made entries in the birth register (Exhibit Kha-1) about the birth of the girl child Tarana Farooq to the respondent and the appellant on the basis of information given to him by the Village Chowkidar by name Kalicharan. Obviously this witness has been examined to show that the respondent was not the informant of the birth of the child in order to neutralise the effect of the entry in the birth register.

6. The Trial Magistrate, after taking into consideration the evidence adduced in the case and the conduct of the parties held that since the child had been born when the parents were in wedlock and since the respondent had not discarded the wife or disowned the child forthwith but had waited for about 10 months to divorce the appellant, it would be reasonable to hold that the child should have been conceived to the respondent and as such he is by law obligated to provide maintenance to the child. After taking into consideration the respondents income the learned Magistrate awarded maintenance to the child at Rs. 30/- per month as against the claim of Rs. 50/- p.m.

7. A revision preferred against the order of the Magistrate to the Sessions Judge. Rampur proved of no avail and hence the respondent filed Criminal Misc. Petition No. 1816 of 1978 to the High Court of Calcutta* under Section 482, Cr. P.C. for quashing