The admissibility of a birth certificate as evidence for proving paternity and the limited scope of revision against the order granting maintenance under Section 125 of Cr.P.C.

JUDGMENT :

A.K. Mishra, J.

In this proceeding U/s. 482 Cr.P.C., the order dated 25.07.2008 in Criminal Revision No.14 of 2006 by the learned Addl. Sessions Judge, Gajapati is assailed, whereby the revisional court has set aside the maintenance order in favour of the present petitioner- minor daughter, passed by the learned SDJM, Parlakhemundi in M.C. 5/2003.

2. Adumbrated in brief, the fact runs thus:

The present petitioner is the daughter of Martha Pani who is the mother-guardian in all forums for her maintenance. The maintenance was claimed against the father who is the opposite party here.

It is the specific case that the mother of the petitioner on the promise of marriage was induced by the opposite party and became pregnant. On 10.03.1998, the minor daughter took birth. The putative father did not marry her and left the village. The birth of the petitioner was registered and the date of registration was 21.03.1998 as per Certificate of Birth (Ext.1). On 10.04.2003, a petition was filed U/s. 125 of Cr.P.C. claiming maintenance for the child as the father had sufficient income.

2-a. The opposite party-husband filed counter disputing the paternity of the petitioner-minor girl. He denied any such access or marriage with the mother of minor daughter. The evidence was taken up. The mother of the petitioner, her sister and another independent witness were examined while the opposite party-husband, School Headmaster and co-villagers were examined on behalf of opposite party. Birth Certificate and School admission register were exhibited.

2-b. Learned SDJM, Parlakhemundi analyzed the evidence and held that the petitioner-minor daughter was entitled to get maintenance from father-opposite party and accordingly allowed monthly maintenance of Rs.350/- from the date of filing of the petition.

3. The putative-father filed criminal revision. Learned Addl. Sessions Judge, Gajapati re-appreciated the evidence both oral and documentary. He found that the father's name of the child was not mentioned in the School Register and relied upon a decision reported in the case of B. Mahadeva Rao vrs. Yesoda Bai, (1962) AIR Madras 141 to the effect that Birth Certificate was not the proof of paternity. The revisional court set aside the order granting maintenance of the learned SDJM, Parlakhemundi. The said order of revisional court is now impugned in this case.

4. None appears on behalf of opposite party.

5. Learned counsel for the petitioner submits that learned revisional court had exceeded its jurisdiction in re-appreciating the evidence in a proceeding U/s.125 of Cr.P.C. and thereby has allowed the child to starve. Further B. Mahadeva Rao (supra) decision was prior to the commencement of the Registration of Births and Deaths Act, 1969 under which provision, the present Birth Certificate of the petitioner (Ext.1) was issued, as such the ratio of that decision is not applicable.

6. In the case at hand, the mother has given evidence that opposite party was the father of the minor daughter. Other two witnesses on her behalf had admitted the same. The Birth Certificate (Ext.1) has been issued by the Registrar of Births and Deaths U/s.12 of the Registration of Births and Deaths Act, 1969, wherein the present opposite party-Gopal Krishna Chintada has been shown as father. The entry of birth was made on 21.03.1998. Thus, it was much prior to the litigation.

6-a. Section 17(2) of the Registration of Births and Deaths Act, 1969 provides that the extract given by the State Government i.e. Certificate shall be admissible evidence for the purpose of proving the birth or death to which the entry relates. In this regard the decision of this Court in the case of Bikram Ray vrs. Smt. Jema Hembram and another, (2010) 1 OrissaLR 443, it has been held at para-6:-

"6. The register is maintained in Form No.11 in accordance with Rule 13 of the Orissa Registration of Births and Deaths Rules, 1970. Therefore, birth certificate is admissible as a public document. The Court further