HIGH COURT OF CHATTISGARH AT BILASPUR
Misc Criminal Case No 2828 of 2001
Sant Kumar
...Petitioners
Versus
1. Neera Bai
2. Ku. Uma
3. Pappu
...Respondents
{Application under Section 482 of the Code of Criminal
Procedure, 1973}
! Mr. M.D. Sharma, counsel for the applicant
^ Mr. Bhaskar Payashi, counsel for the non-applicants
Honble Mr. T.P. Sharma, J
Dated:30/04/2009
: Judgment
ORDER
(Passed on 30th April, 2009)
1. By this petition for invoking inherent jurisdiction, the
applicant has challenged legality & propriety of the order
dated 1-10-2001 passed by the 2nd Additional Sessions Judge,
Baloda Bazaar in Criminal Revision No.280/2001, affirming the
order dated 11-5-2001 passed by the Judicial Magistrate First
Class, Baloda Bazaar in Miscellaneous Criminal Case
No.107/95, whereby both the Courts below have awarded
maintenance under Section 125 of the Code of Criminal
Procedure, 1973 (for short `the Code’) to non-applicant No.3
Pappu.
2. The order is challenged on the ground that Pappu is
neither legitimate child nor illegitimate child of the
applicant and has begotten & born after non-applicant No.1
left the matrimonial house i.e. the residence of the
applicant and there was no occasion of physical relation
between the applicant & non-applicant No.1.
3. I have heard learned counsel for the parties, perused
the petition and the orders impugned.
4. Vide order dated 11-5-2001 passed in Miscellaneous
Criminal Case No.107/95, the Judicial Magistrate First Class,
Baloda Bazaar has awarded maintenance to the non-applicants
under Section 125 of the Code. The applicant, who is father
of non-applicants No.2 & 3 and husband of non-applicant No.1,
has not challenged the order awarding maintenance to non-
applicants No.1 & 2, but has challenged the order awarding
maintenance to non-applicant No.3. After appreciating the
evidence available on record, learned Judicial Magistrate
First Class has awarded maintenance to all the non-applicants
and the same was affirmed in criminal revision.
5. Learned counsel for the applicant submitted that non-
applicant No.1 gave birth to non-applicant No.3 after two
years of leaving the house of the applicant and there was no
occasion for any physical relation between the applicant &
non-applicant No.1. Non-applicant No.1 herself has admitted
in her evidence recorded on 7-1-97 that she had left the
house of the applicant two years before her statement, and
the birth certificate of non-applicant No.3 shows that non-
applicant No.3 was born on 18-11-95. The applicant has
specifically made allegation in his reply that non-applicant
No.3 is not legitimate or illegitimate child of the applicant
and he is not liable for maintenance to non-applicant No.3.
However, the non-applicants have not adduced any evidence to
establish that non-applicant No.3 is the legitimate child of
the applicant and even after leaving the house of the
applicant by non-applicant No.1 there was opportunity of
access to each other at the time of alleged pregnancy of non-
applicant No.1 in relation to the birth of non-applicant
No.3.
6. On the other hand, learned counsel for the non-
applicants opposed the petition and submitted that the
applicant & non-applicant No.1 are legally wedded wife &
husband, non-applicant No.2 is daughter of the applicant and
non-applicant No.3 is son of the applicant. Non-applicant
No.3 came into existence and born during the subsistence of
marriage of the applicant & non-applicant No.1. There is
presumption that non-applicant No.3 is legitimate child of
the applicant in accordance with Section 112 of the Indian
Evidence Act, 1872. Learned counsel further submitted that
this is a summary proceeding to save minor children from
destitution and vagrancy and the applicant may avail remedy
before the competent civil Court, however, he is under
obligation to maintain non-applicant No.3. Learned counsel
placed reliance in the matter of Smt. Dukhtar Jahan v.
Mohammed Farooq1 in which the Apex Court has held that child
born within 7 months’ time after marriage is not sufficient
for raising any presumption that child is not legitimate,
refusal of maintenance to such child is not proper. Learned
counsel also submitted that at the time of reply to the
application filed under Section 125 of the Code, the
applicant has specifically admitted the allegation relating
to paternity of non-applicant No.3 in para 3 of his reply,
but subsequently after lapse of three years on 20-7-99, the
applicant has amended his reply and made allegation that
probably Pappu @ Munna (non-applicant No.3) is not the
legitimate or illegitimate son of the applicant, even after
recording of the evidence of non-applicant No.1 on 7-1-97
i.e. after 2 + years and no opportunity to rebut the same has
been given to non-applicant No.1.
7. This is a petition under Section 482 of the Code for
quashment of maintenance awarded to non-applicant No.3.
Though the jurisdiction under Section 482 of the Code exists
and is wide in its scope, but it is a rule of practice that
it will only be exercised in exceptional cases. The powers
under Section 482 of the Code are to be exercised sparingly
and not as an appellate/revisional Court. In the case of
Arun Shankar Shukla v. State of U.P.2 the Supreme Court
observed:
“It is true that under Section 482 of the
Code, the High Court has inherent powers to
make such orders as may be necessary to give
effect to any order under the Code or to
prevent the abuse of process of any Court or
otherwise to secure the ends of justice. But
the expressions “abuse of the process of law”
or “to secure the ends of justice” do not
confer unlimited jurisdiction on the High
Court and the alleged abuse of the process of
law or the ends of justice could only be
secured in accordance with law including
procedural law and not otherwise. Further,
inherent powers are in the nature of
extraordinary powers to be used sparingly for
achieving the object mentioned in Section 482
of the Code in cases where there is no
express provision empowering the High Court
to achieve the said object. It is well neigh
settled that inherent power is not to be
invoked in respect of any matter covered by
specific provisions of the Code or if its
exercise would infringe any specific
provision of the Code.”
8. In the instant case, copy of the petition filed under
Section 125 of the Code and its reply shows that maintenance
for non-applicant No.3 was claimed on the basis that non-
applicant No.3 is the legitimate child of the applicant.
Contents of para 3 of the application of the non-applicants
relating to paternity of non-applicant No.3 was admitted by
the applicant in para 3 of his reply dated 29-6-96, but after
the statement of non-applicant No.1 the present applicant has
amended his reply and additional allegation has been made as
para 3 (a) wherein it has been alleged that non-applicant
No.3 is not the son of the applicant and he was born during
the course of adulterous life of non-applicant No.1. The
present applicant has amended his reply on 20-7-99 after
three years of his filing reply. Averments relating to
paternity in the application filed on behalf of the non-
applicants are as follows: –
“3@ ;g fd vukosnd lardqekj ds rjQ ls
vkosfndk uhjkckbZ ds xHkZ ls vukosnd dks pkj
oS/kkfud larku nks iq=h ,oa nks iq= yds”ojh
ckbZ mez 7 o’kZ] mek iq=h mez 3 o’kZ] iq=
Hkjr mez 5 o’kZ ,oa uk0ck0 iq= eqUuk mez
yxHkx ,d ekg iq=h yds”ojh ,oa iq= Hkjr
vukosnd ds ikl jg jgk gS ,oa iq=h mek 3 o’kZ
,oa ,d ekg dk iq= uk0ck0 eqUuk firk lardqekj
vkosfndk ds lkFk jg jgs gS A”
Reply/admission of the allegations and subsequent
explanation by amendment of the applicant are as follows:
–
“3@ ;g fd vkosfndkx.k ds vkosnu i= dh
dafMdk&3 dk d/ku lR; gS] blfy;s Lohdkj gS A3(d)@ “;g fd dafMdk&3 d dsoy bruh ckrsa
lR; gS fd y[ks”ojhckbZ mekckbZ] i= Hkjr
vukosnd dh rjQ ls oS/kkfud larkusa gS ,oa
eqUuk dk tUe tkjrk dh n”kk esa gqvk gS bl
dkj.k vukosnd dk i= ugha gS] bl dkj.k esa rF;
badkj gS fd eqUuk vukosnd dk iq= gS” A”
(Amended on 20-7-99)
9. The applicant has specifically admitted in para 3 of his
reply relating to paternity of non-applicant No.3, but
subsequently, he has made additional allegation explaining
paternity and alleged that non-applicant No.3 was born during
the course of adulterous life of his mother i.e. non-
applicant No.1. The present applicant has not withdrawn his
previous admission of paternity. Para 3 & para 3 (a) of his
reply are self-contradictory. Para 3 of his reply is
supported by the allegation of the non-applicants and also by
the evidence adduced on behalf of the non-applicants,
however, factum of birth of non-applicant No.3 during the
course of adulterous life of non-applicant No.1 is not
corroborated by any ocular or documentary evidence of the
present applicant. In absence of any evidence to prove the
allegation made in para 3 (a) of the reply of the applicant,
it is difficult to hold that non-applicant No.3 was born
during the period of adulterous life of non-applicant No.1
and in absence of such proof it may be safely inferred on the
basis of admission of the applicant in para 3 of his reply,
allegation of the non-applicants and their evidence that non-
applicant No.3 is the legitimate child of the applicant, he
is not residing with the applicant and is entitled for
maintenance from his legitimate father under Section 125 of
the Code.
10. Both the Courts below, after appreciating the evidence
available on record and after considering the law applicable,
have awarded maintenance to non-applicant No.3. The Courts
below have not committed any illegality resulted into
miscarriage of justice. The order impugned does not warrant
any interference in exercise of inherent jurisdiction.
Consequently, the petition is liable to be dismissed and it
is hereby dismissed.
J U D G E