Tej Singh Thakur vs Sumit Thakur And Another

1 : Petitioner/non-applicant has filed this Criminal Revision under Section 19 of Family Court Act read with Section 397 read with Section 401 of

Cr.P.C. to set aside the order dated 14.8.2019, passed in M.J.C.No.100/2017, by learned Principal Judge Family Court, Damoh, District Damoh,

whereby learned Principal Judge, Family Court, has allowed the petition presented by respondents under Section 125 of Cr.P.C. and directed the

petitioner/ non-applicant to pay Rs.2,000/- per month as maintenance to the respondent No.1 till he attains the age of majority and Rs.2,000/- per

month as maintenance to the respondent No.2 also.

2 : The respondents filed an application before Family Court, Damoh, under Section 125 of Cr.P.C. It is alleged by them that Petitioner/non-applicant

is their father. The marriage of mother of respondents was solemnized with Petitioner/non-applicant on 15.4.1996. Out of their wedlock respondents

were born. In the year 2005, Petitioner/non-applicant had thrown out the mother of respondents from her matrimonial house, therefore, respondents

were residing with their mother at her parental house. Respondents have no source of income. They are students. Respondent No.1 is studying in

Class-X and respondent No.2 is studying in IX Class. Petitioner/non-applicant has sufficient means of income. He has sufficient agricultural land,

therefore, he is earning Rs.10,00,000/-(Rupees Ten lacs) per annum. Their mother has no source of income. She is a labour. Petitioner/non-applicant

is their father, so Petitioner/non-applicant is liable to pay maintenance to the respondents-children.

3 : The petitioner/non-applicant filed reply to the petition under Section 125 of Cr.P.C. before the trial Court. It is admitted by him that the marriage of

Smt. Rekha Rajpoot, who is mother of respondent No.1, was solemnized on 15.4.1996 and out of their wedlock respondent No.1 Sumit Thakur was

born. Thereafter, Smt. Rekha Thakur ran away with his nephew Nehar Singh. Respondent No.2 is the daughter of Nehar Singh. The mother of

respondents is residing with Nehar Singh as husband and wife, therefore, respondent No.2 is not the daughter of Petitioner/non-applicant and he is not

liable to pay any maintenance to her. Respondent No.1 is his son and he is ready to keep him. He has no sufficient means of income. He is a casual

labour, therefore, he is not liable to pay any maintenance to the respondents.

4 : Both the parties produced the evidence before the trial Court. Learned trial Court considered the evidence and found that respondent No.1-Sumit

Thakur and respondent No.2 Ekta Thakur are the children of Petitioner/non-applicant. They are living separately. They are minor. They have no

source of income. The Petitioner/non-applicant has sufficient source of income, so he is liable to pay maintenance. Therefore, learned trial Court

allowed the petition and awarded maintenance as above.

5 : Learned counsel for the petitioner/non-applicant submits that the impugned order passed by learned Principal Judge, Family Court, is illegal,

arbitrary and contrary to law, therefore, the same is liable to be set aside. Petitioner/non-applicant got married with Smt. Rekha Rajpoot and out of

their wedlock, respondent No.1 Sumit Thakur was born, but subsequently Smt. Rekha Thakur was having illicit relationship with his nephew Nehar

Singh @ Prakash Singh, therefore, Smt. Rekha Rajpoot and Nehar Singh ran away with Sumit Thakur and since then the wife of Petitioner/non-

applicant and Nehar Singh are residing together and out of their relationship, respondent No.2 Ekta was born. Thereafter, two more children were also

born. Respondents did not produce any sufficient evidence and documentary evidence about the daughter of Petitioner/non-applicant. It is submitted

by Petitioner/non-applicant that respondent No.2 is studying in Class-IX, but respondent No.2 did not produce any admission register, marksheet or

other documents to show that the respondent No.2 is the daughter of Petitioner/non-applicant. It is the duty of respondent No.2 to produce

documentary evidence which is available with her, so non-disclosure of material document with a view to obtain advantage amounts to fraud. Only on

this ground, respondent No.2 is not entitled to get any maintenance. Learned counsel for the petitioner/non-applicant relied upon the decision of the

Apex Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. V. Jagannath (dead) by L.Rs and others [(1994) 1 SCC 1].

6 : Learned trial Court did not consider this fact that the wife of Petitioner/non-applicant has filed an application under Section 125 of Cr.P.C. for grant

of maintenance after long lapse of 15 years on the false and fictitious grounds. The wife of Petitioner/non-applicant is an educated lady and doing job.

She is running tiffin center. Respondent No.1 is aged about 19 years and respondent No.2 is more than 16 years old. Therefore, they are major and

they are not entitled to get any maintenance under Section 125 of Cr.P.C. The wife of Petitioner/non-applicant is residing separately with another

person who is taking proper care and expenses and she is also having three children, so on this ground respondents are not entitled to get any

maintenance from the Petitioner/non-applicant. Thus, the order is liable to be set aside.

7 : Learned counsel for the respondents submits that the impugned order is proper and the same is based on facts and legal evidence, so no

interference is warranted. It is admitted fact that the marriage of the mother of respondents was solemnized with Petitioner/non-applicant.

Petitioner/non-applicant did not get any divorce decree from any competent Court, so it is evident that out of their wedlock, respondents were born.

They were minor, they have no source of income, therefore, they are entitled to get maintenance from their father-Petitioner/non-applicant.

8 : Heard learned counsel for both the parties and perused the record.

9 : It is an admitted fact that the respondent No.1-Sumit Thakur is son of Petitioner/non-applicant. Respondent No.1-Sumit Thakur is residing

separately from his father. Respondent No.1-Sumit Thakur has no source of income. He attained the majority on 22.1.2019. Learned trial Judge

awarded Rs.2,000/- per month as maintenance to the respondent No.1-Sumit Thakur. Petitioner/non-applicant has joint agricultural land at Village

Midwasa & Budhakheda, so it is admitted that he has sufficient means of income and he is liable to pay maintenance to the respondent-Sumit Thakur

till his attaining the majority i.e. 22.1.2019.

10 : Learned counsel for the Petitioner/non-applicant submits that respondent No.2 is not his daughter, so he is not liable to pay any maintenance to

her. Smt. Rekha Thakur (PW/1) is mother of respondent No.2. Smt. Rekha Thakur deposed before the trial Court that the respondent No.2 was born

at her matrimonial house when she was residing with Petitioner/non-applicant. Thereafter, Petitioner/non-applicant and his family members taunted

about her character, then she had come with respondents No. 1 & 2 at her parental house. Thereafter, she is residing at her parental house with

respondents No. 1 & 2. She produced the school receipt respondent No.2 i.e. Ex.P/2. The name of father of Petitioner/non-applicant is mentioned in

this document, which shows that Petitioner/non-applicant is father of respondent No.2. Petitioner/non-applicant deposed before the trial Court that

respondent No.2 is not his daughter. Neksingh (PW/2) also deposed the same facts before the trial Court, but no other material was produced by

Petitioner/non-applicant in this regard. In this context learned counsel for the Petitioner/non-applicant referred to Section 112 of the Evidence Act,

which is as under :-

“112. Birth during marriage, conclusive proof of legitimacy,- The fact that any person was born during the continuance of a valid marriage between

his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, 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 any time when he could have been begotten.â€​

11 : It is admitted fact that Petitioner/non-applicant did not file file any divorce petition. Both the parties belong to Hindu religion and Smt. Rekha

Thakur has deposed that the respondent No.2 is the daughter of Petitioner/non-applicant. At that time, she was residing with  Petitioner/non-

applicant.  It is suggested in her cross-examination by Petitioner/non-applicant that he wants DNA examination, then Smt. Rekha

Thakur (PW/1) deposed that she is ready for DNA examination, but Petitioner/non-applicant did not take any action for proceeding with DNA

examination. Therefore, there are no material contradictions and omissions in the evidence of Smt. Rekha Thakur (PW/1). It is proved that at the time

of birth of respondent No.2 Smt. Rekha Thakur was residing with Petitioner/ non-applicant, so it is presumed that respondent No.2 is the daughter of

Petitioner/non-applicant. It was the duty of Petitioner/non-applicant to produce some evidence or material before the trial Court on the basis of which

trial Court can consider the allegation of Petitioner/non-applicant that respondent No.2 is not his daughter. But, Petitioner/non-applicant did not

produce any evidence in this regard, so the finding of learned trial Court is proper and based on facts and legal evidence. So, it is proved that the

respondent No.2 is daughter of Petitioner/non-applicant and it cannot be said that respondent mother intentionally did not produce any material

evidence, admission register and mark sheet about respondent No.2.

12 : Learned counsel for Petitioner/non-applicant submits that the learned trial Court did not consider this fact that the respondent No.2 could get

maintenance till attaining the majority. It is admitted fact that both the parties belong to Hindu religion. The provisions of Section 20(3) of the Hindu

Adoptions and Maintenance Act provide for the right of an unmarried girl after attaining majority to claim maintenance till her marriage. In this

context, learned counsel for the Petitioner/non-applicant relied upon the decision of Apex Court in the case of Dr. Jagdish Jugtawat Vs. Manjulata and

others [(2002) 5 SCC 422]. Paras 2, 3 4 of the report is as under :-

“2. The petitioner is the father of Kumari Rakhi, respondent 3 herein, who is a minor unmarried girl. Considering the application filed under Section 125 of the

Criminal Procedure Code by Respondent 1, wife of the petitioner and mother of Respondent No.3, claiming maintenance for herself and her two children, the Family

Court by order dated 22.7.2000 granted maintenance @ Rs.500 per month to each of the applicants. The petitioner herein filed a revision petition before the High

Court assailing the order of the Family Court on the ground, inter alia, that Respondent 3 was entitled to maintenance only till she attains majority and not thereafter.

Considering the point the learned Single Judge of the High Court accepted the legal position that under Section 125 CrPC, a minor daughter is entitled to maintenance

from her parents only till she attains majority, but declined to interfere with the order passed by the Family Court taking the cue from Section 20(3) of the Hindu

Adoptions and Maintenance Act under which the right of maintenance is given to a minor daughter till her marriage. The learned Single Judge was persuaded to

maintain the order of the Family Court with a view to avoid multiplicity of proceedings. The relevant portion of the judgment of the High Court is quoted here :-

“Thus, in view of the above, though it cannot be said that the order impugned runs counter to the law laid down by the Hon'ble Supreme Court, the provisions of

Section 125 CrPC are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a

Muslim. However, taking an overall view of the matter, I, with all respect to the Hon'ble Court, am of the candid view that the provisions require literal interpretation

and a daughter would cease to have the benefit of the provisions under Section 125 CrPC on attaining majority, though she would be entitled to claim the benefits

further under the statute/personal law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order

would create great inconvenience to Respondent 3 as she would be forced to file another petition under sub-section (3) of Section 20 of the Act of 1956 for further

maintenance etc. Thus, in order to avoid multiplicity of litigations, the order impugned does not warrant interference.â€​

In view of the finding recorded and the observations made by the learned Single Judge of the High Court, the only question that arises for consideration is whether

the order calls for interference. A similar question came up for consideration by this Court in the case of Noor Saba Khatoon V. Mohd. Quasim relating to the claim of

a Muslim divorced woman for maintenance from her husband for herself and her minor children. This Court while accepting the position that Section 125 CrPC does

not fix liability of parents to maintain children beyond attainment of majority, read the said provision and Section 3(1)(b) of the Muslim Women (Protection of Rights

on Divorce) Act together and held that under the latter statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent

girl.

Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining

majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order

passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined residing of Section 125 CrPC and Section

20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated we are of the view that on facts and in the circumstances of the case, no interference

with the impugned judgment/order of the High Court is called for.â€​

13 : So it is evident from the aforesaid discussion that respondent No.2 is the daughter of petitioner/non-applicant. She is minor. She is living

separately, therefore, petitioner/non-applicant is liable to pay maintenance to the respondent No.2. Learned Judge appreciated each and every fact in

perspective way in this regard.

14 : Learned counsel for the Petitioner/non-applicant submits that the awarded maintenance is very excessive. Petitioner/non-applicant admitted this

fact that he has agricultural land of joint ownership, so he has sufficient means of income, therefore, awarded maintenance is not excessive and no

interference is warranted. The case law relied upon by learned counsel for the applicant is not helpful as the same is based on different facts and

circumstances.

15 : In view of the foregoing discussions, the order order dated 14.8.2019, passed in M.J.C.No.100/2017, by learned Principal Judge Family Court,

Damoh, District Damoh, is hereby modified to the extent that the petitioner/non-applicant shall pay Rs.2,000/- per month to the respondent No.1, till he

attained the majority as on 22.1.2019. So far as the respondent No.2 is concerned, the impugned order dated 14.8.2019 shall remain as it is.

16 : Accordingly, the Criminal Revision stands disposed of with the aforesaid modification.