Full Judgment Text
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PETITIONER:
DUKHTAR JAHAN
Vs.
RESPONDENT:
MOHAMMED FAROOQ
DATE OF JUDGMENT20/01/1987
BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
SEN, A.P. (J)
CITATION:
1987 AIR 1049 1987 SCR (1)1086
1987 SCC (1) 624 JT 1987 (1) 221
1987 SCALE (1)92
ACT:
A Code of Criminal Procedure, 1973, section 125, nature
of proceedings under.
B. High Court’s jurisdiction under section 482 of the
Code of Criminal Procedure--Whether could interfere with the
concurrent findings of the courts below granting maintenance
to the child/wife.
C. Evidence Act, section 112--Rule of law under section
112 as to the legitimacy or otherwise of the child--Whether
the factors that the child was born within seven months’
time from the date of the marriage and that the illiterate
mother had deposed the child was not born prematurely lead
to the inference of suppression of the factum of the mother
being enceinte at the time of marriage.
HEADNOTE:
The appellant and the respondent, who were already
related as lint cousins being the issues of two sisters,
were married on 11.5.1973. The marriage lasted only for 17
months, since the respondent divorced the appellant on
16.10.1974. When the parties were in wedlock, the appellant
delivered a female child on 5.12.1973. After the Respondent
effected the divorce in October, 1974, the appellant tiled a
Petition under section 125 Criminal Procedure Code in the
Court of the Special Judicial Magistrate No. 1, Ramput for
grant of maintenance of Rs.50 p.m. to the child.
The respondent refuted his liability to provide mainte-
nance to the child on the ground that he was not the father
of the child and that the child had been conceived even
before marriage and the appellant had suppressed the fact of
her being enceinte at the time of the marriage.
The Trial Magistrate after taking into consideration the
evidence adduced in the case and the conduct of the parties
held that since the child had been born when the parents
were in wedlock and since the respondent had not discarded
the wife or disowned the child forthwith but had waited for
about 10 months to divorce the appellant, it would be rea-
sonable to hold that the child should have been conceived to
the
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respondent and as such he is by law obligated to provide
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maintenance to the child. He accordingly awarded maintenance
to the child Rs.30 p.m. as against the claim of Rs. 50
p.m.
A Revision Petition preferred against the order of the
Magistrate to the Sessions Judge, Rampur proved of no avail
and hence the respondent filed Criminal Misc. Petition No.
1816 of 1978 to the High Court of Calcutta under section 482
Cr. P.C. for quashing the order of maintenance. A Single
Judge of the High Court allowed the petition and quashed the
order of maintenance in favour of the child, by taking the
view that since the child had been born in about 7 months’
time from the date of marriage and since the child was not
claimed to be prematurely born it has to be necessarily held
that the appellant should have conceived even before she
married the respondent and consequently the respondent
cannot be held to be the father of the child and called upon
to pay maintenance to it. However the High Court granted a
certificate under Article 134 (1)(c) read with Article I34A
of the Constitution to the appellant to prefer an appeal for
consideration of a question of law formulated as "Whether,
in an application under Section 482 Cr. P.C. the High Court
can interfere with concurrent findings rendered by the
courts below. ’ ’
Allowing the appeal, the Court,
HELD 1.1 Proceedings under section 125 of the Code of
Criminal Procedure are of a summary nature and are intended
to enable destitute wives and children, the latter whether
they are legitimate or illegitimate, to get maintenance in a
speedy manner. In the instant case, the order of the High
Court of Calcutta quashing the order of maintenance in
favour of the child by setting aside the concurrent findings
rendered by the Courts below is not in order. [1094E-F]
1.2 The proper course for the High Court, even if enti-
tled to interfere with the concurrent findings of the courts
below in exercise of its powers under Section 482 Cr. P.C.,
should have been to sustain the order of maintenance and
direct the respondent to seek an appropriate declaration in
the Civil Court, after a full-fledged trial, that the child
was not born to him and as such he is not legally liable to
maintainit. [1094D-E]
1 .3 The facts of the case and the conduct of the par-
ties and the attendant circumstances reveal a preponderance
of materials to support the case of the appellant rather
than that of the respondent. [1093E]
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If the appellant was pregnant even at the time of the
marriage she could not have concealed that fact for long and
in any event the respondent would have come to know of it
within two or three months of the marriage and thereupon he
would have immediately protested and either discarded the
appellant or reported the matter to the village elders and
relatives and sought for a divorce. On the contrary the
respondent had Continued tO lead life with the appellant in
a normal manner till the birth of the child. Even the con-
finement appears to have taken place in his house as other-
wise the child’s birth would not have been registered in his
village. The respondent had not disowned the child immedi-
ately after its birth or sent away the appellant to her
parents’ house. Such would not have been his conduct if he
had any doubt about the paternity of the child. Moreover,
there is an entry in the birth register (Exhibit Kha-I)
setting out the respondent as the father of the child.
Though the respondent has attempted to neutralise the entry
in Exhibit Kha--I by examining D.W.2 and making it appear
that the entry had been made on the basis of the information
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given by a third party, the lower courts have refused to
give credence to the vague and uncorrobarated testimony of
D.W.2. Further, the respondent had allowed eleven months to
pass before effecting a divorce. By his inaction for such a
long period the respondent has given room for inference that
the divorce may have been effected for other reasons and not
on account of the appellant giving birth to a child con-
ceived through someone else. Lastly, even if the child had
been born alter a full-term pregnancy it has to be borne in
mind that the possibility of the respondent having had
access to the appellant before marriage cannot be ruled out
because they were closely related and would therefore have
been moving on close terms. AH these factors negate the plea
of the respondent that the minor child was not lathered by
him. Giving birth to a viable child after 28 weeks’ duration
of pregnancy, according to medical science is not biologi-
cally an improbable or impossible event. [1093F-H; 1094A-D]
2. Section 112 of the Indian Evidence Act lays down that
if a person was born during the continuance of a valid
marriage between his mother and any man or within two hun-
dred and eighty days after its dissolution and the mother
remains unmarried, it shall be taken as 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. This
rule of law based on the dictates of justice has always made
the courts incline towards upholding the legitimacy of a
child unless the facts are so compulsive and clinching as to
necessarily warrant a finding that the child could not at
all have been begotten to the father and as such a legitima-
tion of the
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child would result in rank injustice to the father. Courts
have always desisted from lightly or hastily rendering a
verdict and that too, on the basis of slender materials,
which will have the effect of branding a child as a bastard
and its mother an unchaste woman. [1092D-F]
Mahbub Ali v. Taj Khan, AIR 1915 Lahore 77(2); Kahan
Singh v. Natha Singh, AIR 1925 Lahore 414; Sibt Mohamed v.
Md. Maneed, AIR 1926 Allahabad 589 and Ponnamal v. Addi
Aivan, AIR 1953 TRACO 434 (Vol. 40, C.N. 169), approved.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 13
of 1981
From the Judgment and Order dated 26.3.1979 of the
Allahabad High Court in Crl. Misc. Petition No. 1816 of 1976
Altar Ahmad for the Appellant (not present).
V.A. Bobde (Amicus Curiae) for the Respondent.
The Judgment of the Court was delivered by
NATARAJAN, J. This is an unfortunate case where the High
Court has quashed an order of maintenance passed in favour
of a minor child Tarana Farooq by the Special Judicial
Magistrate No. 1, Rampur under Section 125 Cr.P.C., in
exercise of its powers under Section 482 Cr. P.C. The High
Court has, however, deemed it fit to grant a certificate to
the appellant Dukhtar Jahan, the mother of the minor child,
under Article 134(1)(c) read with Article 134A of the Con-
stitution to prefer an appeal to this Court for considera-
tion of a question of law formulated as under:--
"Whether, in an application under Section 482
Cr.P.C. the High Court can interfere with
concurrent findings rendered by the courts
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below."
As we find the appeal is capable of being disposed of on
the basis of other materials, we do not feel called upon to
answer the question of law formulated for consideration by
the High Court.
We may now have a look at the facts of the case. The
appellant Dukhtar Jahan and the respondent Mohammed Farooq
who were already related as first cousins, being the issues
of two sisters, were married on 11.5.1973. The marriage
lasted only for about 17 months
1090
since the respondent divorced the appellant on 16.10.1974.
However, when the parties were in wedlock the appellant
delivered a female child named Tarana Farooq on 5.12.1973.
After the respondent effected the divorce in October 1974,
the appellant filed a petition under Section 125 Cr.P.C. in
the court of the Special Judicial Magistrate No. 1, Rampur
for grant of maintenance to her and the child at Rs. 150
p.m. and Rs.50 p.m. respectively. The appellant however gave
up the claim of maintenance for herself as the stand of the
respondent was that he had paid her the Maher and the amount
payable for the Iddat period and that he had also returned
all the articles given by way of dowry. The enquiry in the
petition was therefore, confined to the claim of maintenance
for the child Tarana.
The respondent refuted his liability to provide mainte-
nance to the child on the ground that he was not the father
of the child and that the child had been conceived even
before marriage and the appellant had suppressed the fact of
her being enceinte at the time of the marriage.
While the appellant examined herself and another witness
to substantiate the claim for maintenance for the child, the
respondent examined three witnesses besides himself to
refute the claim. Of those three witnesses, two have spoken
about the payment of Maher etc. to the appellant and hence
we need mention only about the testimony of D.W.2 Abdul
Asad. This witness was a Panchayat Sevak and he has deposed
that he made entries in the birth register (Exhibit Kha-I)
about the birth of the girl child Tarana Farooq to the
respondent and the appellant on the basis of information
given to him by the Village chowkidar by name Kalicharan.
Obviously this witness has been examined to show that the
respondent was not the informant of the birth of the child
in order to neutralise the effect of the entry in the birth
register.
The Trial Magistrate, after taking into consideration
the evidence adduced in the case and the conduct of the
parties held that since the child had been born when the
parents were in wedlock and since the respondent had not
discarded the wife or disowned the child forthwith but had
waited for about 10 months to divorce the appellant, it
would be reasonable to hold that the child should have been
conceived to the respondent and as such he is by law obli-
gated to provide maintenance to the child. After taking into
consideration the respondent’s income the learned Magistrate
awarded maintenance to the child at Rs.30 per month as
against the claim of Rs.50 p.m.
1091
A Revision preferred against the order of the Magistrate
to the Sessions Judge, Rampur proved of no avail and hence
the respondent filed Criminal Misc. Petition No. 1816 of
1978 to the High Court of Calcutta under Section 482 Cr.P.C.
for quashing the order of maintenance. A Single Judge of the
High Court has allowed the petition and quashed the order of
maintenance in favour of the child. The learned Judge has
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taken the view that since the child had been born in about 7
months’ time from the date of marriage and since the child
was not claimed to be prematurely born it has to be neces-
sarily held that the appellant should have conceived even
before she married the respondent and consequently the
respondent cannot be held to be the father of the child and
called upon to pay maintenance to it.
As the order of the High court appeared to be prima
facie unsustainable and as the respondent failed to enter
appearance in spite of notice being served on him, we re-
quested Mr. Bobde to appear as amicus curiae for the re-
spondent, and we are thankful to him for his assistance.
The admitted facts are that the appellant and the re-
spondent were close relations and not strangers before
marriage. They were married on 11.5.1973 and the girl child
was born on 5.12.1973. The respondent did not divorce the
appellant immediately after the child birth or even two or
three months later but he divorced her only on 16.10. 1974.
The child birth took place in the house of the respondent
himself and hence there is no question of the birth of the
child not being known to the respondent immediately.
In spite of all these factors the High Court has allowed
itself to be influenced by only two factors viz. the child
birth taking place in about 7 months’ time from the date of
marriage and the child being claimed to be a full-grown one
at the time of birth.
Examining the matter, we feel the learned Judge has
failed to view the case in its entire conspectus and this
has led to miscarriage of justice. On the sole ground that
the child had been born in about 7 months’ time after the
marriage it cannot be concluded that the child should have
been conceived even before the respondent had consummated
the marriage. Giving birth to a viable child after 28 weeks’
duration of pregnancy is not biologically an improbable-or
impossible event. In "Combined Textbook of Obstetrics and
Gynaecology" by Sir Gugald Baird 7th Edition at page 162 it
is reported as under:-
1092
"In the case of Clark v. Clark (1939) an
extremely small baby, born alive 174 days
after last possible date when intercourse with
the husband could have taken place, and which
survived, was held to be legitimate. While it
is most unusual for babies of this weight for
gestation period to survive it does occasion-
ally happen."
The learned Judge ought not, therefore, to have rushed to
the conclusion that a child born in about 7 months’ time
after the marriage of the parents should have necessarily
been conceived even before the marriage took place. In so
far as the second aspect is concerned viz. about the appel-
lant’s statement that the child was not born prematurely,
the High Court has failed to bear in mind that the appellant
is a rustic and illiterate woman and as such her opinion
could suffer from error of judgment.
Another serious infirmity noticed in the judgment is
that the learned Judge has completely lost sight of Section
112 of the Indian Evidence Act. Section 112 lays down that
if a person was born during the continuance of a valid
marriage between his mother and any man or within two hun-
dred and eighty days after its dissolution and the mother
remains unmarried, it shall be taken as 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 begotton. This
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rule of law based on the dictates of justice has always made
the courts incline towards upholding the legitimacy of a
child unless the facts are so compulsive and clinching as to
necessarily warrant a finding that the child could not at
all have been begotten to the father and as such a legitima-
tion of the child would result in rank injustice to the
father. Courts have always desisted from lightly or hastily
rendering a verdict and that too, on the basis of slender
materials, which will have the effect of branding a child as
a bastard and its mother an unchaste woman.
To drive home the point, we may refer to some of the
reported cases where the courts have applied the rule of
evidence contained in Section 112 of the Indian Evidence Act
and declared the legitimacy of a child born during wedlock,
even though the child had been born prematurely. In Mahbub
Ali v. Taj Khan,, A.I.R. 1915 Lahore 77 (2) it was held that
a boy born about 7 months’ after his father and mother were
lawfully married and who had opportunity or access to each
other at the time he could have been begotten, must be held
to be the legitimate son of his parents. In Kahan Singh v.
Natha Singh, A.I.R.
1093
1925 Lahore 414 the defendant’s father was married to the
defendant’s mother on 2nd August 1889 and the defendant was
born on 23rd January 1890. Even so it was held "that the
defendant being born during the continuance of the marriage
between his parents, he is his father’s legitimate son
unless it is shown that his parents had no access to each
other at any time when he could have been begotten and that
it is immaterial how soon after the marriage the defendant
was born." In Sibt Mohammad v. Md. Hameed, A.I.R. 1926
Allahabad 589 it was held that a Muhammedan child born
during the continuance of a valid marriage between its
parents but within 6 months of the date of its parents’
marriage must be held to be a legitimate child by reason of
Section 112 of the Evidence Act. In Ponnammal v. Addi Aiyan,
A.I.R. 1953 TRA-CO 434 [Vol. 40, C.N. 169] the paternity of
a child born to a married woman after 8 months’ from the
date of marriage was disputed as the husband alleged that he
was incapacitated from having sexual intercourse for one
month from date of marriage due to some operation he had to
undergo and hence the child was not his. The court held that
even assuming that the husband was so incapacitated, the
time available, viz, over seven months, was sufficient to
raise the presumption that he was the father of the child.
Even without reference to Section 112 of the Indian
Evidence Act if we take into consideration the facts of the
case and the conduct of the parties and the attendant cir-
cumstances we find a preponderance of materials to support
the case of the appellant rather than that of the respond-
ent.
The relevant features which have escaped the attention
of the High Court can be catalogued as under:-
If the appellant was pregnant even at the time of the
marriage she could not have concealed that fact for long and
in any event the respondent would have come to know of it
within two or three months of the marriage and thereupon he
would have immediately protested and either discarded the
appellant or reported the matter to the village elders and
relatives and sought for a divorce. On the contrary the
respondent had continued to lead life with the appellant in
a normal manner till the birth of the child. Even the con-
finement appears to have taken place in his house as other-
wise the child’s birth would not have been registered in his
village. The respondent had not disowned the child immedi-
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ately after its birth or sent away the appellant to her
parents’ house. Such would not have been his conduct if he
had any doubt about the paternity of the child. Moreover,
there is an entry in
1094
the birth register (Exhibit Kha-1) setting out the respond-
ent as the father of the child. Though the respondent has
attempted to neutralise the entry in Exhibit Kha-1 by exam-
ining D.W.2 and making it appear that the entry had been
made on the basis of information given by a third party, the
lower courts have refused to give credence to the vague and
uncorroborated testimony of D.W.2. It is also significant to
note that the respondent had allowed eleven months to pass
before effecting a divorce. By his inaction for such a long
period the respondent has given room for inference that the
divorce may have been effected for other reasons and not on
account of the appellant giving birth to a child conceived
through some one else. Lastly, even if the child had been
born after a full-term pregnancy it has to be born in mind
that the possibility of the respondent having had access to
the appellant before marriage cannot be ruled out because
they were closely related and would therefore have been
moving in close terms. All these factors negate the plea of
the respondent that the minor child was not lathered by him.
The proper course for the High Court, even if entitled
to interfere with the concurrent findings of the courts
below in exercise of its powers under Section 482 Cr.P.C.,
should have been to sustain the order of maintenance and
direct the respondent to seek an appropriate declaration in
the Civil Court, after a full-fledged trial, that the child
was not born to him and as such he is not legally liable to
maintain it. Proceedings under Section 125 Cr.P.C., it must
be remembered, are of a summary nature and are intended to
enable destitute wives and children, the latter whether they
are legitimate or illegitimate, to get maintenance in a
speedy manner. The High Court was, therefore, clearly in
error in quashing the order of maintenance, in favour of the
child.
The appeal has, therefore, to succeed and we accordingly
allow the appeal and set aside the order of the High Court
and restore the order of maintenance passed by the trial
court.
S.R. Appeal
allowed.
1095