Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(J&K) 14

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Sanjay Dhar, J.
Raaisha (minor) through her mother Sumaira – Petitioner
Versus
Syed Sudhanshu Panday – Respondent
Crl R No. 16 of 2019, CrlM No. 602 of 2019
Decided On : 27-01-2022

Advocates:
Advocate Appeared:
For the Petitioner:Mr. Abdul Manan, Advocate.
For the Respondent:Mr. Anil Bhan, Advocate

Point of Law : In absence of any other materials, either in form of oral evidence or in form of documentary evidence, will be of no use. The learned counsel would contend that there shall be a legal presumption of correctness of date of birth as found, order passed by the learned Magistrate under Section 13 (3) of Act.

Headnote:
J&K Cr.P.C - Section 488 – Criminal Procedure Code, 1973 - Section 397 (2) - Registration of Births and Deaths Act, 1969 - Section 13(1)(2) and 13 (3) - Evidence Act – Section 114(e) and 112 – Issue regarding paternity - Claiming maintenance - Whether petitioner’s mother is legally wedded wife of respondent, is required to be determined and in absence of any, prima facie, documentary proof in civil suit as regards marriage between petitioner’s mother and respondent, it is appropriate to defer decision of proceedings till outcome of the civil suit - Alleged that respondent developed relationship with mother of petitioner. Respondent converted to Islam, whereafter he entered into wedlock with mother of petitioner out of said wedlock, petitioner was born, respondent was deputed to Central Government and posted, petitioner along with her mother visited native place of respondent where they came to know that respondent was already a married man having wife and two children and it was also found that respondent was practicing Hindu faith, as a result whereof, marriage between petitioner’s mother and respondent got automatically dissolved. Petitioner and her mother has filed a suit for declaration and injunction against respondent, which is pending disposal before Court also averred that though respondent did remit some maintenance amount in bank account of petitioner, yet same is very meager.
Finding of the court :
Merely because wife of the respondent had alleged in her divorce petition that respondent was forced to marry mother of petitioner does not prove the said fact particularly when respondent’s wife has admittedly withdrawn petition itself - The first birth certificate being based upon contemporaneous record, prima facie, would get precedence over the second one, which has been issued after a considerable delay of more than three years. In face of this overwhelming record, unless the petitioner, by leading cogent and convincing evidence and placing on record unimpeachable material in the proceedings going on before Civil Court, it may not be possible for Magistrate to pass an order of maintenance in her favour. The learned Magistrate has, therefore, rightly deferred further consideration of petition till decision of the issue in the civil suit - Section 397 (2) of Cr.P.C which corresponds to S.435(2) of J&K Cr.P.C, clearly creates a bar to exercise of revisional powers against orders of aforesaid nature. The revision petition is, therefore, not maintainable – Court not find any illegality or impropriety in impugned order passed by the learned Magistrate.
Result : Revision petition dismissed

JUDGMENT :

1. Petitioner Raaisha (minor) through her mother has challenged order dated 30.03.2019 passed by the Judicial Magistrate First Class (2nd Additional Munsiff), Srinagar (hereinafter referred to as “the Magistrate”) in the proceedings under Section 488 of J&K Cr.P.C whereby the learned Magistrate has deferred the proceedings till the outcome of the civil suit in which question of paternity of the petitioner is in issue.

2. Before coming to the grounds urged in the instant revision petition, it would be apt to refer to the background facts leading to filing of this revision petition.

3. It appears that the minor petitioner through her mother filed a petition under Section 488 J&K Cr.P.C against the respondent herein claiming maintenance from him. In the said petition, it has been alleged that in the year 2010, when the respondent was holding the position of Finance Secretary in the Government of Jammu and Kashmir, he developed relationship with mother of the petitioner. It is further alleged that in the month of May 2010, the respondent converted to Islam, whereafter he entered into wedlock with mother of the petitioner on 08.05.2010 and out of the said wedlock, petitioner was born on 12.04.2011. It is also alleged that in the month of October, 2012, the respondent was deputed to Central Government and posted at New Delhi. The respondent shifted to the said place leaving the petitioner and her mother in lurch. It has been alleged that on 01.04.2013, the petitioner along with her mother visited the native place of the respondent at Lucknow where they came to know that the respondent was already a married man having wife and two children and it was also found that the respondent was practicing Hindu faith, as a result whereof, the marriage between the petitioner’s mother and the respondent got automatically dissolved. It has been alleged that the petitioner and her mother were forced to leave Lucknow, whereafter, the respondent completely ignored the both. It is averred that the petitioner and her mother has filed a suit for declaration and injunction against the respondent, which is pending disposal before the Court of 1st Additional Munsiff, Srinagar. It is also averred that though the respondent did remit some maintenance amount in the bank account of the petitioner, yet the same is very meager. On these grounds, the petitioner has sought monthly maintenance of Rs.30,000/- from the respondent.

4. The respondent contested the aforesaid petition by filing reply thereto. In his reply, the respondent refuted all the allegations made in the petition and denied having entered into any wedlock with mother of the petitioner. He has also denied his relationship with the petitioner. According to the respondent, the allegations made in the petition are just a figment of imagination and a device to scandalize his reputation and image. The respondent claims that the mother of the petitioner is only trying to blackmail him and to tarnish his clean image as a distinguished public servant. It is averred that in the civil suit, mother of the petitioner has admitted that she had entered into wedlock with another person on 1stAugust, 2010 which ended in divorce in October, 2010. It is further averred that the birth certificate of the petitioner depicts her father’s name as the person with whom petitioner’s mother had married. The respondent claims that he is a happily married person with two grown up children and there is no way that he could have entered into a wedlock with the petitioner’s mother. The respondent further claims that the petitioner’s mother has been blackmailing him and trying to extort money from him by maligning his reputation.

5. It appears that during the pendency of the petition under Section 488 J&K Cr.PC, the respondent made an application before the learned Magistrate seeking an order for deferment of proceedings under Section 488 Cr.P.C till the disposal of civil suit filed by the petitioner and her mother against h