Safina Bi vs Parvez Ahmed

""Frailty thy name is woman"" Shakespeare has revealed one of the facets of human instincts. The saying of this great writer, it appears, has

assumed life in the facts of this case.

Safina Bi is born to Shahmida Bi, an unmarried woman, who claims that respondent is the father of the innocent sibling. The minor child Safina

Bi is suffering because the parents, in cruel disregard to the ethics and norms of life, without entering into marital knot, cohabited resulting in her

birth, consequently to suffer throughout her life at the Altar of naked fraud and unabashing deceit.

Shahmida Bi and Parvez Ahmed are both residents of village Khanetar Dalera Poonch and both were studying in Government High School

Khanetar. In petition filed under Section 488 Cr.P.C before the court of learned Chief Judicial Magistrate Poonch, it was stated that Shahmida Bi

and Parvez Ahmed belong to one village and were studying in same school, the respondent allegedly enticed and induced Shahmida and on the

promise of contracting marriage with her, abused her physically and she accordingly has begotten Safina Bi to the respondent on 28.04 2003.

Pleadings made in the petition under Section 488 Cr.P.C reveal that because of the physical relationship between Shahmida Bi and the respondent,

Shahmida Bi got impregnated. When this was brought to the notice of the respondent, he instructed Shahmida Bi not to abort the child as

respondent would marry her. Immediately after the birth of Safina Bi respondent married some other girl. Shahmida Bi claimed Safina Bi to be the

child of respondent so she claimed maintenance for him.

On notice to respondent, he filed his objections in which he specifically denied to have had any physical/ sexual relationship with Shahmida Bi.

Respondent, though denied the claim of Shahmida Bi he was studying with her, but admitted that Shahmida Bi was studying in Government Higher

Secondary School Khanetar where respondent was also studying, In the objections it has been further pleaded by the respondent that Shahmida

Bi belongs to a caste different to that of the respondent and as per custom prevalent in the family of the respondent. Persons of respondent's family

do not marry with the girls of other castes. Shahmida Bi belongs to Mehmoola Rajput caste so respondent would not marry with her in view of the

custom of the family. It is further case of the respondent in his objections that his father is respectable person, a retired Inspector of Panchayat

Department, because of political rivalry and in order to defame the father of the respondent, the story has been cooked up. The respondent

accordingly denied being father of Safina Bi and consequently not liable to pay any maintenance to her.

Parties being at variance, learned trial Magistrate directed for leading of evidence. Shahmida Bi appeared as witness before the trial Court on

19.01.2005. In her statement she deposed that she was studying in Government High School Khanetar and respondent was also studying in the

same school. Respondent promised Shahmida Bi that he will marry her and thus by duping her established sexual relationship resulting in her

becoming pregnant, which got transformed into Safina Bi. She further deposed that respondent was informed that she is pregnant because of the

sexual relationship the respondent had with her. The respondent took oath on Quran, assured Shahmida Bi that he will marry her and further

instructed her that she should not inform anybody about her pregnancy and if she divulges the same he will get her killed by militants. Shahmida Bi

deposed that she believed respondent as he had taken oath on Quran and consequently Safina Bi was born on 28.04.2003. Respondent married

some other woman on 4.5.2003. No Panchayat was convened. Shahmida Bi claimed that for maintenance of Safina Bi she require Rs. 2000/ per

month and that Safina Bi remains ill as well. She further deposed that respondent is a rich person and has more than 200 Kanals of land. In the

cross examination Shahmida Bi stated that after 10th she did not pursue her studies. She was studying in Khanetar school in 8th class. She and

respondent were studying together. She does not remember in which year she was studying in 8th and 9th classes. She stated that almost 4/5 years

have passed. Boys and girls were studying together and the children of the village were studying in the same school. After the classes would be

over, all the students would""come back home together. Respondent sought admission in 11th class in Chandak School. Respondent could not

qualify 12th class. Respondent is not a government employee. About pregnancy, she had informed her parents or relations neither this was

divulged to the parents of the respondent as the respondent had asked her not to divulge it to anybody. Nobody even could know that Shahmida

Bi was pregnant. When Safina Bi was born every body came to know about it. She belongs to Mehmolla Raiput caste and respondent belongs to

Gujjar caste and no intercaste marriage takes place.

Mst. Anwar Bi appeared as a witness of the petitioner. In her statement recorded on 07.02.2005 before the trial Court. She deposed that

Shahmida Bi and respondent were studying in Khanetar School. They would go to school together and would also come back together.

Respondent would also visit the house of Shahmida Bi. Nobody knew that the Shahmida Bi was pregnant. It was only when daughter was born

that she knew about the same. She further deposed that Shahmida Bi had informed her that respondent had promise her to marry her and

respondent had instructed her not to divulge to anybody about their sexual relations as also the pregnancy. Respondent married some other lady

and thereafter the maintenance petition was filed. In cross examination the witness deposed that Shahmida Bi is her niece. They are living in same

vicinity. Respondent belongs to a different caste and there in no relationship with the respondent nor any marriage takes place between the two

families. Shahmida Bi and respondent studied in Khanetar school. In which year they were studying was not remembered by her. Till such time

Shahmida bi was pregnant, she did not inform anybody about the same. When a woman becomes pregnant, after 5/6 months people learn about

the same. During pregnancy she did not inform her about the same but after the child was born, she informed the witness that respondent is the

father of the newly born child.

Another witness Noor Hussain in his statement before the trial Court deposed that Safina Bi was born on 28.4.2003 at Poonch hospital. He

further deposed that when Shahmida Bi and respondent were studying at Khanetar school they developed sexual relationship which resulted in

birth of Safina Bi. It is also stated that a case under Section 376 R.P.C has also been registered against the respondent and trial is going on in the

court of learned Sessions Judge Poonch. The said witness also deposed that DNA Test was also conducted which proved that respondent is

father of Safina Bi. Respondent denied to be the father of Safina Bi to save himself from the rigor of law as he is facing trial under Section 37o

R.P.C. The said witness also deposed that Shahmida Bi has no source of income and she requires Rs.2000/ per month for maintenance of Safina

Bi. Respondent is a well off person. In cross examination the witness has stated that 4/5 years back Shahmida Bi and respondent were studying in

Khanetar school. He deposed that he does not know whether they were studying in same class or different classes.

Respondent appeared as his own witness on 07.07.2006 and in his statement before the trial Court stated that he and Shahmida Bi are residents

of same village but claimed that his house is about 4 kilometers away from the course of Shahmida Bi. He further stated that there are some houses

between the house of Shahmida Bi and the respondent. He has admitted that he studied up to 10th class in Khanetar School. He also stated that

he studied in the said school up to 199495 and thereafter pursued his studies in Government Higher Secondary School Chandak where he studied

up to 12th class. Respondent further deposed that Shahmida Bi did not seek admission in Chandak School. Shahmida Bi and respondent were not

studying in the same class. After the school hours all the boys and girls would come back home together. Shahmida Bi would not accompany

respondent while going to school or even coming back home. He has further denied having visited the house of Shahmida Bi. Respondent also

denied having married Shahmida Bi as also that Safina Bi is his daughter. He further deposed that he belongs to Gujjar caste and Shahmida Bi

belongs Mehmoona Rajput caste and no intercaste marriage takes place between these two castes. He further deposed that Shahmida Bi h? s filed

a false case against him. Respondent has admitted that he belongs to a respectable and rich family. He has denied that police has got any medical

test conducted on him. He has also denied that for conducting any medical test blood was taken from him. On cross examination he deposed that

he and Shahmida Bi were studying in same school. He also admitted that he would daily go to school and Shahmida Bi and he would tread the

same path. It would take almost one and a half hour to reach the school. The houses of the parties are situated at high altitude. He has admitted

that a case under Section 376 R.P.C is pending against him and in that case Shahmida Bi has deposed against him. He has admitted that Shahmida

Bi is not married but she has given birth to a child. He has denied of having any illegal physical relationship with Shahmida Bi. He deposed that he

does not want to conduct DNA Test.

One Fazal Hussain also appeared as witness of the respondent. The witness admitted that Shahmida Bi and respondent are resident of Khanetar

and their houses are situated at a small distance from each other. He has deposed that there was no relationship between Shahmida Bi and the

respondent and he has not seen respondent visiting the house of Shahmida Bi. The witness has admitted that he has seen them going to school and

coming back from the school together. The witness deposed that Shahmida Bi was studying in Chandak school. He has, however, pleaded his

ignorance as to in which class she was studying. He deposed that respondent is an agriculturist and is living separately from his father No land is

recorded in his name and entire land stands in the name of his father. He further deposed that respondent was married before filing of the case. It

was only after the child was born that Shahmida Bi stated that respondent is father of the child. On cross examination, the witness deposed that

there is case pending against the respondent in the Court of learned Sessions Judge Poonch which pertains to rape and in that case petitioner is the

complainant. The witness has stated that he does not know as to ""whether the respondent is the father of Safina Bi or not"". The witness has further

pleaded ignorance about conducting of the DNA test.

After considering the pleadings and evidence the learned Chief Judicial Magistrate Poonch dismissed the petition vide order of July 9, 2007.

Revision filed against the said order has also been dismissed by learned Sessions Judge Poonch vide his judgment dated 29.11.2008. The

petitioner has filed petition under Section 561A Cr.P.C to challenge both these orders.

Heard learned counsel for the parties, perused the record and considered the matter.

Learned counsel for the respondent raised a preliminary objection about the maintainability of the petition. He submitted that an amendment

has been made in Section 435 in terms of the Jammu and Kashmir Code of Criminal Procedure (Amendment) Act, 2006 (for short Act of 2006

hereafter). Learned counsel referred to Section 3 of the Act of 2006. Section 3 of the Act has substituted Section 435 (sic) SubSection (3) of

Section 435 provides that if an application under this section has been made by any person either to the High Court or to the Sessions Judge, no

further application by the same person shall be entertained by the either of them. Learned counsel would thus submit that this petition, in terms of

the bar contained in SubSection (3) of Section 435 substituted under the Act of 2006, is not maintainable and merits dismissal. Learned counsel in

support thereof referred to and relied upon a judgment of Hon'ble Supreme Court of India in Saroj Devi. Vs Pyara Lal & another, AIR 1981 SC,

Perusal of the said judgment would reveal that in a case registered under Section 448 of the Indian Penal Code by an order dated

01.09.1970 the house was ordered to be restored to the possession of the complainant. Application was filed for possession which was resisted

by the applicant. The learned Magistrate overruled the objections. The order of learned Magistrate was maintained by the High Court vide its

order dated 21.07.1978. the applicant filed criminal miscellaneous application before the High Court under Section 482 of the Code of Criminal

Procedure, alleging therein that she was not a party to the criminal proceeding and she was in possession in her own right and that earlier directions

of the High Court dated 1st September, 1970, directing restoration of possession to Pyara Lal, be clarified by declaration that it was not binding

on her and did not affect her possession. The said petition was dismissed by the High Court and it was held that in view of bar contained in section

362 of the Code of Criminal Procedure, the High Court could not review its own order. The Hon'ble Supreme Court held that in view of bar

contained in Section 362 the High Court could not review its order by invoking powers under Section 482 of the Code of Criminal Procedure.

The facts of case are materially different from the facts of this case. In this case the petitioner is not seeking review of the order of High Court

by invoking its inherent jurisdiction. The petitioner is seeking quashing of the orders passed by the Subordinate Courts.

Learned counsel also referred to and relied upon Jagpati Vs State of Madhya Pardash, AIR 1993 SC 1360, to show that second revision was

not permissible before the High Court in view of the bar contained in subsection (3) of Section 397 of the Central Code. It was held that High

Court had erred in entertaining the second revision at the instance of 2nd respondent. In the present case, 2nd revision petition is not entertained

but petition under Section 561A Cr.P.C is entertained by the High Court. Section 561A falls in Chapter XLVI whereas Section 435 falls in

Chapter XXXII. Section 561A, for facility of reference is reproduced thus:

561A. Saving of inherent power of High Court.

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give

effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Section 561A Cr.P.C saves inherent powers of the High Court. The very expression used in this section mandates that nothing in this Code

shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under

this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The power under Section 561A gives

recognition to the inherent powers of the High Court. The High Court being court of record, has inherent powers to do justice wherever injustice

stares at its face and secondly that where no provision is contained in the Code of Criminal Procedure to meet out such eventuality. The very

expression that, nothing shall be deemed to limit or affect the inherent powers of the High Court, makes it clear that this power is not shackled

hand and foot. This power has to be exercised whereever it is necessary to give effect to any order under the Code of Criminal Procedure or to

prevent the abuse of process of the Court or otherwise to secure the ends of justice. A situation may arise in which a nacked injustice may be

brought to the notice of the Court but there would be no provision on the statute book to meet out the justice, would it mean that court of law

would be helpless or hapless to meet out justice. It is for this purpose that Section 561A has been enacted by the Legislature. Even in absence of

provisions like 561A, the superior court like the High Court would not be powerless to meet out justice to parties. The very purpose of creation

and constitution of superior courts would be meaningless if an argument is raised that in absence of any provision of law the superior court/High

Court cannot administer justice, and if accepted, would be doing disservice to the institution of higher judiciary and to the society at large, for the

benefit of which the institutions are created.

This Court has the power and same can be exercised to secure the ends of justice.

The case in hand is one such case in which the said power requires to be exercised for the reasons which would follow.

This is definitely a case having its own peculiarities. The Court is not dealing with a normal case. In such type of cases, more particularly in

society like ours, a woman, who establishes an illicit relation with member of opposite sex, would not indulge in such activities in public gaze and

would not also retale her experiences to others. In a society like ours, such relationships are not only looked down upon but are frowned upon.

Such relations between two opposite sexes have no acceptability in our society. When a woman ventures into, otherwise, such a forbidden area,

she would not make it public. In peculiar facts of this case, as per the case of Shahmida Bi, respondent had developed love relationship with her,

who had promised to marry her and that is how the parties established physical relationship which ultimately got exposed by the birth of Safina Bi.

The learned trial Court has rejected the case of Shahmida Bi by dealing with the evidence as if the learned trial Judge was considering a

criminal case where the offence has to be proved beyond all shadow of doubt. In petitions filed under Section 488 Cr.P.C the Court can pass an

order, if satisfied even on preponderance of probabilities of the evidence lead before it. The learned Magistrate, while rejecting the case of the

petitioner, has observed that Shahmida Bi has nor given the details of place, where the sexual intercourse took place between her and the

respondent neither lias given date and other details. This approach of the learned Magistrate, in such type of cases, cannot be approved. A

woman, who will be knowing that she will be carrying a stigma throughout her life and may even loose opportunity of getting married and settling in

life, would not normally tell a lie. In the present case though respondent (sic) has stated in his objections that because of political rivalry the

petitioner wants to bring bad name to the father of the respondent, but he has not made even a whisper in his statement made before the trial Court

about same. Even otherwise, no evidence has been led to support this defence.

It is true that for coming to the just and lawful conclusion in proceedings pending in a court of law, the claim projected must derive support

from other independent evidence, but the case in hand, as already stated, is not a normal routine case. The learned Magistrate has stated that

Shahmida Bi is an interested person and she has failed to get her evidence corroborated.

Evidence of Shahmida Bi could be corroborated only when Shahmida Bi would have had sexual intercourse with the respondent in presence of

some persons, which is quite impossible. No lady would have sex with a man in presence of other persons. Seeking for corroboration, in such

circumstances, would be asking for moon.

In the present case the material was available to corroborate the evidence of Shahmida in the shape of DNA Test and one of the witnesses of

Shahmida Bi had specifically deposed before the trial Court that DNA test had been conducted in this case. Perusal of the report placed on record

reveals that respondent is said to be biological father of Safina Bi. The learned Magistrate in order (sic) case, should have considered the said

report and, if deemed necessary, should have granted opportunity to the petitioner to lead the evidence to prove the DNA report and thereafter

given opportunity to the respondent to cross examine the witnesses or even to lead evidence in defence.

The learned Magistrate by rejecting the maintenance petition, has not only committed grave illegality, but has failed to administer justice in the

case. The learned Sessions Judge, for same reasons, has also committed illegality which has resulted in miscarriage of justice.

The way the subordinate Judges have conducted the proceedings of the case tantamount to the abuse of the process of the Court. In this case

justice was in fact to be meted out to Safina Bi, an innocent sibling. The Subordinate Courts have failed to secure the ends of justice.

For the above stated reasons, this petition is allowed. The impugned orders are set aside and the matter is remanded back to the learned trial

Magistrate, who would consider the effect of report of authority who has conducted the DNA test and if the learned Magistrate would deem it

imperative, then he may call upon the petitioner to lead evidence in this behalf and would also thereafter give opportunity to the respondent to lead

evidence in rebuttal.

During the pendency of the petition under Section 488 Cr.P.C before the learned Magistrate, respondent would pay an interim maintenance in

the amount of Rs. 1500/ per month to Safina Bi, who shall be entitled to receive the same from today. Respondent will be duty bound to deposit

the interim maintenance in the second week of every month in the trial Court, who will thereafter disburse the same to Safina Bi through her mother

Shahmida Bi.

In case of failure to deposit the interim maintenance, the trial Magistrate shall secure its recovery in accordance with law.

Observations made while deciding this petition, shall not, however, affect the merits of the case of the parties and any other case pending

between the parties.

Records be sent back forthwith.

Parties, through their counsel, are directed to appear before the trial Court on November 9, 2009.