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2012 Supreme(Cal) 579
High Court Of Calcutta
Dipak Saha Ray, J.
Biswajit Saha : Appellant
Versus
State : Respondent
CRR No. 1080 of 2011
Decided on : July 06, 2012
Subhomoy Bhattacharya, Kaushik Gupta
A child born out of an alleged rape is entitled to maintenance under Section 125 of the Code of Criminal Procedure, even if the accused has not been convicted in the criminal case.
Headnote:
MAINTENANCE - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE - SECTION 376 OF THE INDIAN PENAL CODE - A child born out of an alleged rape is entitled to maintenance under Section 125 of the Code of Criminal Procedure, even if the accused has not been convicted in the criminal case.
Fact of the Case:
A woman filed a petition under Section 125 of the Code of Criminal Procedure for maintenance of her daughter, alleging that the child was born out of rape by the petitioner. The petitioner denied the allegations and contested the case.
Finding of the Court:
The court found that a criminal case under Section 376 of the Indian Penal Code was pending against the petitioner, and that during investigation, a prima facie case had been made out against him. The court also considered the evidence of the woman and her mother, who testified that the petitioner had committed rape on the woman.
Issues: Whether the child born out of an alleged rape is entitled to maintenance under Section 125 of the Code of Criminal Procedure, even if the accused has not been convicted in the criminal case.
Ratio Decidendi: The court held that the child is entitled to maintenance under Section 125 of the Code of Criminal Procedure, even if the accused has not been convicted in the criminal case. The court relied on the fact that a prima facie case had been made out against the petitioner during investigation, and that the woman and her mother had testified that the petitioner had committed rape on the woman.
Final Decision: The court dismissed the revisional application filed by the petitioner and affirmed the impugned order granting maintenance to the child.
DIPAK SAHA RAY, J.
1. THE present case arises out of an application under Section 401/397 of the Code of Criminal Procedure read with Section 482 of the Code of Criminal Procedure, 1973.
2. IT is directed against the Order dated 13.9.2010 passed by the learned Judicial Magistrate, First Class, Nadia in Misc. Case No. 234 of 2007 under Section 125 of the Code of Criminal Procedure allowing the maintenance in favour of Jayanti Saha.
3. THE relevant facts of the present case are, in a nutshell, as follows:
4. THE opposite party No. 2 as petitioner initiated a proceeding for maintenance under Section 125 of the Code of Criminal Procedure against her father praying for maintenance of Rs. 1500 p.m. as her mother who was also a minor had no independent source of income and was unable to maintain the petitioner. The said case was registered as Misc. Case No. 234 of 2007. In the said Misc. Case, the petitioner viz. Jayanti Saha alleged inter alia that Biswajit Saha committed rape on her mother viz. Shukla Debnath who was then also minor; as a result, she became pregnant and ultimately, she gave birth to the petitioner/O.P. No. 2 herein. Accordingly, she was the illegitimate daughter of Biswajit Saha and was entitled to get maintenance as per the provisions of Section 125 of the Code of Criminal Procedure, 1973.
5. AS against this, O.P. Biswajit Saha/petitioner herein contested the case by filing written objection wherein the material allegations made by the petitioner had been denied. It was the case of O.P./Biswajit Saha that Jayanti Saha was not his daughter and he had no connection with her and as such she was not entitled to get any maintenance from him. Dismissal of the application was so prayed for.
6. THE petitioner in the said Misc. Case, in order to establish her case, examined two witnesses including her grand-father and mother as PWs 1 and 2 respectively. The O.P. Biswajit Saha in support of his case also examined himself as O.P.W. 1.
7. AFTER taking into consideration of all relevant facts and evidence on record, the learned trial court passed an order on 13.9.2010 granting maintenance of Rs. 1500/- p.m. in favour of the petitioner from the date of filing the case.
8. BEING aggrieved by and dissatisfied with the impugned order the O.P. Biswajit Saha has preferred the instant revisional application.
9. IT is the case of the petitioner that the learned trial court failed to appreciate the evidence on record in its proper perspective and approached the case from a wrong angle and this has resulted in failure of justice. The learned trial court without taking notice of the fact that a criminal case under Section 376 IPC which was initiated by Shukla Debnath (the mother of O.P. No. 2 herein) on the allegation that she was raped, is still pending before the learned Sessions Court and as such it has not been decided as to whether the mother of the present O.P. No. 2 was at all raped by the petitioner herein/ Biswajit Saha.
10. AFTER taking into consideration all relevant facts and materials and giving due regard to the submission made by the learned counsel for both the parties, I think that the only point requiring adjudication is whether or not the impugned order dated 13.9.2010 passed by the learned Judicial Magistrate, Nadia is liable to be set aside.
11. THERE is no controversy that a criminal case under Section 376 IPC was initiated by Shukla Debnath, the mother of the O.P. No. 2 herein which is pending before the learned Sessions Court.
12. THE controversy mainly relates to the question as to whether Jayanti Saha is the illegitimate daughter of Biswajit Saha.
13. IT is submitted by the learned counsel for Biswajit Saha that until and unless the petitioner is convicted in the said Sessions case, it cannot be said that he committed rape upon the victim. So, at this stage, O.P. No. 2 herein cannot be said to be the illegitimate child of the present petitioner. It is further contended that as it is not proved that she is
