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2012 Supreme(Gau) 274
IN THE HIGH COURT OF GAUHATI
Ujjal Bhuyan, J.
Sahed Ali (Md.) – Appellants
Vs.
Mahela Begum – Respondent
Crl. Pet. No. 22 of 2011
Decided On: 29.02.2012
For Appellant/Petitioner/Plaintiff: Mr. R. Ali
For Respondents/Defendant: Mr. A.R. Sikdar
Headnote:
Criminal Procedure Code, 1973 - Sections 125 and 482 – Offence of Rape - Illegitimate Child - Petitioner challenged aforesaid judgment and order in revision before learned Sessions Judge - Revision petition was registered as Criminal Motion Case - Learned revisional Court by judgment and order affirmed order of maintenance passed by learned Magistrate and dismissed said revision petition - Aforesaid judgment of learned revisional Court has been challenged by petitioner before this Court by way of an application - Learned counsel for petitioner submits that there is no evidence at all to arrive at finding that petitioner had fathered minor child of respondent - He submits that in absence of any such material learned Courts were not justified to come to conclusion that petitioner is father of daughter of respondent Referring to a decision of this Court passed in Criminal Revision learned counsel for petitioner submits that burden was on first party to lead evidence in support of her claim - First party had failed to discharge burden which was on her and therefore same has vitiated judgments of both Courts learned counsel there five prays for setting aside aforesaid judgment - Held, Thereafter recorded finding that first party was able to prove that child was born of second party - Learned revisional Court also recorded finding that second party has got land property and he is a businessman - Under such circumstances learned revisional Court affirmed order of learned Magistrate and dismissed revision - Decision of this Court has to be examined in factual context of that case - It was a case where first party claimed maintenance for illegitimate child contending that child was born out of commission of an act of rape on her by second party - Though maintenance claim was allowed by trial Magistrate same was reversed in revision by revisional Court - In that case second party was tried for an offence of rape but he was acquitted by Criminal Court - In context of that case this Court found that even a prima-facie case was not made out by applicant to claim maintenance - Facts and circumstances of present case are totally different from facts and therefore I am of view that decision in aforesaid case is not applicable to facts of present case - Petition dismissed.
Ujjal Bhuyan, J.
1. Heard Mr. R. Ali, learned counsel for the petitioner and also heard Mr. A.R. Sikdar, learned counsel appearing for the respondent. The respondent as the first party had filed a petition against the petitioner in the Court of the learned SDJM (S), Barpeta, under Section 125 Cr.P.C. seeking maintenance for her minor daughter, whom she claimed to be the illegitimate child of the petitioner.
2. The said petition was registered as Case No. 254/07. The petitioner, who was arrayed as the second party, contested the said case by filing his written statement, where he denied that the respondent was his wife and also denied that her child was his illegitimate child.
3. The first party examined 3 (three) witnesses to prove her case. On the other hand, the second party adduced the evidence of 2 (two) witnesses.
4. On consideration of the materials on record, the learned Magistrate framed the following two issues for determination:--
1. Whether the daughter of the first party is the illegitimate daughter of the second party?
2. whether the daughter of the first party is entitled to get maintenance from the second party?
5. After considering the evidence adduced by both the sides, the learned Magistrate took the view that the evidence of both the witnesses of the second party were not trustworthy and could not be relied upon.
6. The learned Magistrate took the view that the minor child of the first party was born to the second party and recorded the finding that the second party i.e. the petitioner herein is the father of the daughter of the first party.
7. Regarding the second issue, the learned Magistrate came to the conclusion that the daughter of the first party is entitled to get maintenance from the second party.
8. By the judgment and order dated 10.07.2009, the learned Magistrate directed the second party to pay monthly maintenance of Rs. 600/- to the minor daughter of the first party from the date of filing of the maintenance petition.
9. The petitioner challenged the aforesaid judgment and order in revision before the learned Sessions Judge, Barpeta. The revision petition was registered as Criminal Motion Case No. 24/2009.
10. The learned revisional Court below by the judgment and order dated 16.09.2010, affirmed the order of maintenance passed by the learned Magistrate and dismissed the said revision petition.
11. The aforesaid judgment of the learned revisional Court below has been challenged by the petitioner before this Court by way of an application under Section 482 Cr.P.C.
12. The learned counsel for the petitioner submits that, there is no evidence at all to arrive at the finding that the petitioner had fathered the minor child of the respondent. He submits that in the absence of any such material, the learned Courts below were not justified to come to the conclusion that the petitioner is the father of the daughter of the respondent Referring to a decision of this Court dated 20.01.2006 passed in Criminal Revision No. 708/2002: Smt. Alia Khatun Vs. Md. Khursed Ali, learned counsel for the petitioner submits that the burden was on the first party to lead evidence in support of her claim. The first party had failed to discharge the burden which was on her and, therefore, the same has vitiated the judgments of both the Courts below. The learned counsel, there five, prays for setting aside the aforesaid judgment.
13. Resisting the above submissions, Mr. Sikdar, learned counsel for the respondent, on the other hand, submits that this petition is not maintainable in as much as though the same has been filed under Section 482 Cr.P.C., the same for all intent and purpose is an attempt at second revision which is statutorily barred. On merits, learned counsel submits that a proceeding under Section 125 Cr.P.C. being of a summary nature, the strict rules of evidence are not applicable in such a case. In support of his contention, the learned counsel relies on the decision of the Apex Court in the case of Smt. Dukhtar J
