SUPREME COURT OF INDIA
A. P. Sen and S. Natarajan, JJ.
Smt. Dukhtar Jahan - Appellant
versus
Mohammed Farooq - Respondent
Criminal Appeal No. 13 of 1981
Decided on 20.1.1987

IMPORTANT POINT
On the sole ground that the child has been born in about 7 months' time after the marriage it cannot be concluded that the child should have been conceived before the marriage.

Headnote:(i) Constitution of India 1950- Articles 134(1)(c) read with 134A - Criminal Procedure Code, 1973 - Section 125 -Appellant and respondent already related as first cousins were married on 11.5.1973 A girl child was born on 5.12.1973 - Respondent divorced appellant on 16.10.1974 - Petition under section 125 Criminal Procedure Code for grant of maintenance for the child-Respondent refuting his liability on the ground that he was not the father of the child and that the child had been conceived before marriage-Maintenance rejected by High Court taking the view that since the child had been born in about 7 months' time from the date of marriage respondent is not her father-Challenged - Whether High Court was right? (No)

       (Cross Reference to Indian Evidence Act - Section 112).

       Held, even without reference to section 112 of the Indian Evidence Act if we take into consideration the facts of the case and the conduct of the parties and the attendant circumstances we find a preponderance of materials to support the case of the appellant rather than that of the respondent. (Para 14)

       If the appellant was pregnant even at the time of the marriage she could not have concealed that fact for long and in any event the respondent would have come to know of it within two or three months of the marriage and thereupon he would have immediately protested and either discarded the appellant or reported the matter to the village elders and relatives and sought for a divorce. On the contrary the respondent had continued to lead life with the appellant in a normal manner till die birth of the child. Even the confinement appears to have taken place in his house as otherwise the child's birth would not have been registered in his village. The respondent had not disowned the child immediately after its birth or sent away the appellant to her parents house. Such would not have been his conduct if he had any doubt about the paternity of the child. Moreover, there is an entry in the birth register (Ex. Kha-1) setting out the respondent as the father of the child. Though the respondent has attempted to neutralize the entry in Ex. Kha-1 by examining D.W. 2 and making it appear that the entry had been made on the basis of information give a by a third party, the lower courts have refused to give credence to the vague and uncorroborated testimony of D.W. 2. It is also significant to note that the respondent had allowed eleven month) to pass before effecting a divorce. By his inaction for such a long period the respondent has given room for inference that the divorce may have been effected for other reasons and not on account of the appellant giving birth to a child conceived through some one else. Lastly, even if the child had been born after a full term pregnancy it has to be borne in mind that the possibility of the respondent having had access to the appellant before marriage cannot be ruled out because they were closely related and would therefore have been moving in close terms. All these factors negate the plea of the respondent that the minor child was not fathered by him. (Para 15)

       (ii) Criminal Procedure Code, 1973 - Section 125 - On the sole ground that the child has been born in about 7 months' time after the marriage it cannot be concluded that the child should have been conceived even before the respondent had consummated the marriage. (Para 11)

       (iii) Indian Evidence Act, 1872 - Section 112 - Rule of law contained in this provision, based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the lather.

       Held, section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eight days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimating of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. (Para 12)

       (iv) Criminal Procedure Code, 1973 - Sections 125 and 482 -Petition under section 125 -Allowed – Revision -Dismissed by Sessions Judge –Appeal - Allowed by High Court - Whether High Court was right in quashing the order of maintenance passed in favour of a minor child by the courts below? (No)

       Held the proper course for the High Court, even if entitled to interfere with the concurrent findings of the courts below in exercise of its powers under section 482 Criminal Procedure Code, should have been to sustain the order of maintenance and direct the respondent to seek an appropriate declaration in the Civil Court, after a full-fledged trial, that the child was not born to him and as such he is not legally liable to maintain it. Proceedings under section 125 Criminal Procedure Code, it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. The High Court was, therefore, clearly in error in quashing the order of maintenance, in favour of the child. (Para 16)

       (v) Criminal Procedure Code, 1973-Section 125-Proceediogs under, are of a summary nature and are intended to enable dispute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. (Para 16)

       Result-

       Appeal allowed.