Zahoor Ahmad Pampori vs Nadia (Minor)

Petitioner, by means of this petition, under S. 561A, Cr. P.C. is seeking to quash the orders dated 11/2000 and 21122000, passed by the

learned Chief Judicial Magistrate, Anantnag, in petition under Section 488, Cr. P.C. and order dated 29122001 passed by the learned Sessions

Judge, Anantnag, in revision petition No. 60/2001.

Petitioner was married to Ruby Jan. Out of the wedlock, Nadia, a female child, was born on 28th March, 1989. The marriage between the

parties was dissolved on 17.10.88, The minor, Nadia, through her mother, filed an application before learned Chief Judicial Magistrate, Anantnag,

against the petitioner herein, seeking maintenance under Section 488, Cr. P.C.

During the pendency of these proceedings, petitioner filed an application for conducting DNA test disputing the paternity of the child. The

learned Magistrate, on appreciation of the evidence, dismissed the application of the nonapplicant (Petitioner herein), seeking direction to conduct

the DNA test vide order dated November, 2000. He granted a sum of Rs. 500/ to the child as maintenance vide order dated 21122000. This

order was challenged by the nonapplicant (Petitioner herein) before the learned Sessions Judge, Anantnag, in revision petition which also stands

dismissed on 29122001.

Learned counsel for the petitioner is seeking to quash these proceedings on the ground that the trial Court has not appreciated the evidence as

the child was born after eighteen months of the dissolution of marriage and immediately after the dissolution of marriage, Mst. Ruby Jan, mother of

minor, Nadia, contracted another marriage.

Learned trial Court and revisional Court have appreciated these pleas of the learned counsel and rejected. There is no further evidence on

record to controvert that the marriage was dissolved on 17th October, 1988 and Nadia, the female child, was born on 2831989, within a period

of sic months. There is no evidence on record to make out that the minor Naida was born after eighteen months.

There is presumption of legitimacy of birth in terms of Section 112 of Evidence Act which reads as under :

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 eight days after its dissolution, the mother remaining unmarried, shall be conclusive proof that

he is the legitimate sen 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.

The child is born within six months. During such a period a complete healthy child is not expected to be delivered, It is not made out that the

child was not healthy or was of six months at the time of birth. Under such circumstances, it is not safe to doubt the paternity of the child despite

the plea that the mother of the child contracted I another marriage, immediately after the dissolution of the marriage. There is no I contrary

evidence to this effect even that any other person had the access to the • mother of the child. The presumption therefore, holds good in this case

also. The impugned orders of the Court's below cannot be said to be erroneous or suffering from the abuse of the process of the Court or law.

There is no merit in this petition, which is, accordingly, dismissed. Petition dismissed.