Lakhbir Singh vs Kumari Veena

Surinder Singh, J.

This petition under section 482, Code of Criminal Procedure, has been filed with a prayer for quashing the two impugned orders, one passed by the Additional Chief Judicial Magistrate, Hoshiarpur, on November 5, 1983 and other confirming the said order, rendered by the Additional Sessions Judge, Hoshiarpur, on March 12, 1984, in Revision.

The Courts below have ordered the payment of Rs. 100/ per month as maintenance allowance under section 125, Code of Criminal Procedure, to Kumari Veena respondent who has been found to be the illegitimate daughter of the petitioner born from her mother Taro, with whom the petitioner had illicit relations for 13/14 years. The petitioner had executed an agreement on October 9, 1968, undertaking to pay Rs. 200/ per month by way of maintenance to Taro and also to maintain her in his house as his wife. The petitioner kept the respondent and her mother in a separate accommodation in village Akhlaspur, as he was himself a married man having children. The respondent was born on August 5, 1970 and was admitted in a school in the village. The name of the petitioner was mentioned as the father of the respondent in the school records. Birth Certificate Exhibit 1 has also been producein this behalf. The Courts below after considering the evidence produced by the parties came to the conclusion that the respondent was the illegitimate child of the petitioner.

The only submission made by the learned counsel for the petitioner is that under section 112 of the Evidence Act, the fact that any person was born during the continuance of a valid marriage between his mother and any man, shall be 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 time when he could have been begotten. The argument is what the respondent had failed to produce conclusive evidence to show that her mother Taro had no access to her actual husband Garibu at the time when the respondent was begotten. This aspect of the matter has been considered by the Courts below and it has been found that the petitioner had mortgaged his 25 Kanals of land with Taro for Rs. 10,000 with a view to providing her residence at his Tubewell. This circumstance as also the other facts on the record were taken into account for holding that Garibu, husband of Taro had no access to the former during the stay of Taro at the Tubewell of the petitioner. The finding of fact so arrived at by the trial Court was affirmed in Revision by the Additional Sessions Judge, Hoshiarpur. There is no occasion to alter this finding in the present petition which is only a garb for a Second revision Petition, not permissible under the law.

The learned counsel for the petitioner has sought to place reliance upon certain observations contained in Raghavan Pillai v. Gourikutty Amma and another, AIR 1960 Kerala 119. There is no quarrel with the proposition of law enunciated in the said authority, but the appreciation and assessment of evidence in the present case renders the authority, i.e. Kunden Singh and others v. Hardan Singh, AIR 1953 Allahabad 501, is distinguishable on facts. As against these, the learned counsel for the respondent has cited Mayandi Asari and others v. Sami Asari, AIR 1933 Madras 44, in which it was held that when after considering the matter the Court believes that there was no access or considers its existence so probable that a prudent man ought in the circumstance of the particular case to act upon the supposition that it existed, nonassess may be considered to have been proved.

In view of the foregoing discussion, the present petition under section 482, Code of Criminal Procedure, in the circumstances of this case, is not competent, as the question of quashing the impugned orders passed by the two Courts below does not arise. The same is accordingly dismissed.