JUDGMENT
Pravendu Narayan Sinha, J.
1. The revisional application under Article 227 of the Constitution of India is directed against the judgment and order dated 5.6.1998 passed by the learned Additional Sessions Judge, 3rd Court, Murshidabad in Criminal Motion No. 70 of 1996 thereby dismissing the motion and affirming the judgment and order dated 13.11.1995 passed by the learned Judicial Magistrate, 3rd Court, Berhampore in M.R. Case No. 14 of 1994 under Section 125 of Cr.P.C. allowing maintenance @ Rs. 500 per month for the illegitimate child of opposite party Sayeda Khatun Bibi and giving effect to order of the maintenance amount from 10.1.1994 till attainment of majority of the said child.
2. Facts of the case, as it appears from the materials-on-record and the lower Court record is that, the opposite party Sayeda Khatun Bibi filed an application under Section 125 of Cr.P.C. before the learned Sub-Divisional Judicial Magistrate (in short SDJM), Berhampore, Murshidabad praying for maintenance for her minor son Rehesan Ali which was registered as M.R. Case No. 14/94 and it was transferred to the Court of learned Judicial Magistrate, 3rd Court, Berhampore for disposal. In the said application it was mentioned that she was engaged as a maid servant by the opposite party (present petitioner). After some days of working the present petitioner gave a proposal to her for cohabitation with her which she refused. The petitioner thereafter promised to marry her and started co-habitation with her and lived like husband and wife. The opposite party subsequently became pregnant and she stated the said fact to petitioner and told him to marry her, but the petitioner refused to marry her and drove hermit of his house. She then took shelter in her parents house and gave birth to a son on 11.7.1992 corresponding to 26th Shravan, 1399 B.S. and the said child was aged about one year five months when she filed the application under Section 125 of Cr.P.C. for maintenance of the said child against this petitioner claiming the child as the illegitimate child of this petitioner. It was her further allegation that petitioner being a rich businessman having monthly income of more than Rs. 8,000 per month did not take any information of the child and did not give any maintenance to the said child. The petitioner as opposite party in the Court below contested the matter by filing written objection and denied all the material averments of the application under Section 125 of Cr.P.C. He contended inter alia that, he is a reputed and respectable person of that area having business, of fertilizer. For the purpose of his business he used to stay at Shialmara and she was residing there with his wife and children. As his wife was in need of a maid servant, the opposite party was engaged to work as maid servant in his house. The opposite party’s house at Shialmara was adjacent to his house and after doing the works as maid servant she used to return back to her house. He had no occasion to meet with the opposite party and even had no time to talk with her for his heavily engaged business work. The allegation of the opposite party that he had sexual intercourse with her as a result of which she became pregnant and gave birth to the child are absolutely false and baseless and is an attempt to tarnish his fame and reputation. The opposite party is a woman of loose character and easy virtue and she had illicit relation with several youths of the village. The opposite party has instituted the case making false and frivolous allegation against him.
3. It appears that after the end of the trial in the said M.R. case learned Judicial Magistrate, 3rd Court, Berhampore by his order dated 13.11.1995 held that the present petitioner was the father of the child namely Rehesan Ali and he is bound to maintain his illegitimate child. The learned Magistrate accordingly allowed the prayer of the present opposite party and granted maintenance for the minor child @ Rs. 500 per month giving effect to the maintenance order from date of filing of the application i.e. from 10.1.1994 till the child attains majority. It is evident that challenging the said order the present petitioner preferred a revision before the learned Sessions Judge at Murshidabad and it was disposed of by the learned Additional Sessions Judge, 3rd Court, Murshidabad by his order dated 5.6.1998 in Criminal Motion No. 70 of 1996. The learned Additional Sessions Judge dismissed the motion and affirmed the order passed by the learned Judicial Magistrate, 3rd Court, Berhampore.
4. Mr. Dipak Sengupta, learned Senior Advocate for the petitioner contended that paternity of a child and legitimacy of a child are completely different matters. The learned Additional Sessions Judge did not consider that evidence of opposite party who was petitioner in the Trial Court and evidence of other witnesses failed to establish that the petitioner had any access to the opposite party for the alleged act of sexual intercourse which ultimately made the opposite party pregnant resulting into giving birth of the alleged child. The learned Judge did not consider the evidence of both parties adduced in the Trial Court. The learned Judge acted wrongly by holding that the present petitioner had to discharge onus that the opposite party was a woman of loose character and used to mix with other youths and also worked as maid servant elsewhere. From the evidence and circumstances it was not at all proved that this petitioner had ever access to the opposite party. The learned Magistrate as well as the learned trial Judge failed to come to the finding from evidence and circumstances that, it was none but, the petitioner alone, had the access to the opposite party and petitioner was father of the illegitimate child.
5. Mr. Sengupta further contended that P.W. 1 in her evidence stated that she worked in the house of the petitioner three and half years back and if she worked for three and half years in petitioner’s house the evidence goes against her case. Though the P.W. 1 in her evidence denied that wife of petitioner was living at Shialmara; from evidence of other witnesses it transpired that petitioner was living at Shialmara with his wife and children and the opposite party was engaged as maid servant to help his wife. The opposite party was engaged by the wife of petitioner and not by the petitioner. The learned Courts below did not consider all these matters and failure of the learned Courts below to consider the evidence and circumstances have far reaching consequences. There was no scientific assistance to ascertain whether the petitioner was the father of the child and there was no DN A Test to ascertain the paternity of the child. Failure of the learned Courts below to consider the evidence and circumstances and the point for consideration in a case of such nature resulted into miscarriage of justice. The learned Magistrate and the learned Appellate Court without due consideration of evidence and circumstances came to an erroneous finding of fact that petitioner was the father of the child. Substratum of fact and law and the problems were not considered by the learned Courts below. This is a fit case where this Court should interfere to remove illegality and miscarriage of justice. The orders of the learned Courts below being not in accordance with law should be set aside.
6. Mr. Anisur Rahaman Khan, learned Advocate appearing for the opposite party Sayeda Khatun Bibi contended that from pleadings of the parties and from evidence it has been transpired that the present petitioner though married used to stay at Shialmara village for his business purpose alone and his wife and children were residing at Rani Nagar. Rani Nagar is not far away from Shialmara and for the purpose of domestic works in Shialmara house the petitioner engaged the opposite party to work in his house as maid servant. After she joined the work the petitioner started sexual intercourse with her giving promise of marrying her and due to such act the opposite party became pregnant and gave birth to a child on 11.7.1992.
7. Mr. Khan further contended that the petitioner is a businessman and an influential person of Rani Nagar and Shialmara area. The cross- examination of this petitioner as O.P.W. 1 revealed that he used to take rest in his house sometimes during noon. From evidence it transpired that the opposite party used to remain in his house throughout the day time and after doing her works she used to return back to her father’s house at evening. At noon the petitioner had the opportunity of making sexual intercourse with the opposite party giving promise of marriage and evidence clearly establishes that the petitioner had access to the opposite party for the sexual intercourse. The petitioner failed to introduce any evidence in the Trial Court to prove that the opposite party was a woman of easy virtue or loose character. There was no evidence that she used to work in other houses or had mixing with local youths and in evidence no name of any youth or other persons transpired who had intimacy with the opposite party. The learned Magistrate as well as the learned Additional Sessions Judge rightly appreciated evidence and came to the finding that it was petitioner and none else had the access to the opposite party and due to such access the petitioner had sexual intercourse with the opposite party and made her pregnant. After she became pregnant she told opposite party to marry her but, the petitioner instead of marrying her drove her out. Over that matter, there was a ‘salish’ in village and in ‘salish’ the opposite party narrated the entire incident and, this fact has been corroborated by the evidence of the witnesses. The petitioner did not examine his wife in Trial Court to prove that his wife used to stay with him at Shialmara village. This is the second revision and is not maintainable. When two lower Courts came to a concurrent finding of fact, this Court would seldom interfere into the finding of fact. The legal principle in the instant case is of little consequence when both the lower Courts below came to the finding of fact that petitioner was the father of the child of opposite party. There is no ground at all to interfere with the findings of the learned Courts below and the revisional application having no merit should be dismissed.
8. I have carefully perused the revisional application and the materials-on-record including the lower Court record and the evidence adduced by the parties in the instant case. It appears that in order to prove her case the opposite party as petitioner in the Court below examined three witnesses namely P.W. 1 Sayeda Khatun Bibi, P.W. 2 Hazrat Sheikh, her father and P.W. 3 Alauddin Sheikh. The petitioner as opposite party in the Court below examined three witnesses namely O.P.W. 1 Md. Mahasin Ali Sk, O.P.W. 2 Md. Mahasin Al! and O.P.W. 3 Bahastullah Sheikh. Evidence of P.W. 1 reveals that about three years back she was engaged to work in house of Mahasin Sheikh (present petitioner) as maid servant. The word ‘since three years back’ should not be construed as she was working for ‘three and half years’ as contended by the learned Advocate for petitioner. Here the meaning of the words ‘since three years back’ clearly signifies that, she spoke about her work as maid servant in the house of petitioner three and half years back from the date of giving evidence in Court. Her evidence reveals that the petitioner tried to have sexual intercourse with her but, she refused. Then this petitioner gave proposal to her that he would marry her and thereafter, the petitioner started having sexual intercourse with her. She had thereafter love and affection with the petitioner and due to sexual intercourse she became pregnant. Her evidence reveals that the petitioner was residing at his Shialmara house alone and occasionally, wife of petitioner and children used to come there from Rani Nagar. After pregnancy she told the petitioner to marry her but, he refused and drove her out and, not only that, he left Shialmara and started living at his permanent house at Rani Nagar. She gave birth to a male child at her father’s house. She stated that the petitioner has business of cement and fertilizer and he is also owner of 12/13 bighas of land and his monthly income is more than Rs. 7,000 per month.
9. P.W. 2 is the father of the opposite party Sayeda Khatun and he also stated that his daughter used to work in the house of petitioner about three years back. His house is situated near to house of petitioner. The petitioner promised to marry his daughter and had sexual intercourse with his daughter as a result of which his daughter became pregnant and she gave birth to a male child at his house. He stated clearly that his daughter used to work in the house of petitioner only and in no other place. He also stated that the monthly income of petitioner is more than Rs. 8,000 per month. P.W. 3 also stated that the opposite party used to work as maid servant in the house of petitioner. There was a ‘salish’ in the village where opposite party disclosed everything that she became pregnant due to sexual intercourse with petitioner and petitioner is the father of her child. Cross-examination of P.W. 1, P.W. 2 and P.W. 3 reveal that petitioner used to stay at Shialmara for his business purpose and his permanent residence is at Rani Nagar. He used to stay at Shialmara mostly alone and his wife and children used to visit Shialmara occasionally. P.W. 1 denied the suggestion that she was engaged by wife of petitioner and after she became pregnant she was driven out by the wife of petitioner. P.W. 2 stated that he came to know about the incident from his daughter when his daughter was carrying for three months. When the petitioner refused to marry his daughter there was a ‘salish’ and the petitioner did not obey the verdict of the ‘salish’ to marry the opposite party. P.W. 1, P.W. 2 and P.W. 3 denied the suggestion that opposite party used to work as maid servant in other houses also.
10. The present petitioner as O.P.W. 1 in his evidence stated that he has a house-cum-godown at Shialmara and the opposite party was engaged to work as maid servant in his house by his wife. In examination-in-chief O.P.W. 1 stated that petitioner used to work in 2/3 other houses at same time. But in cross-examination he did not state name of the houses where the present opposite party also worked as maid servant. In cross-examination he admitted that the opposite party used to work for the whole day in his house but, did not stay in his house at night. He used to take rest in his house at Shialmara at noon time. This cross-examination reveals that there was a ‘salish’ in village regarding allegation of the opposite party that she was pregnant due to sexual intercourse with him. Evidence of O.P.W. 2 and O.P.W. 3 did not help the present petitioner at all. On the other hand, evidence of O.P.W. 2 and O.P.W. 3 rather supports the case of the present opposite party. O.P.W. 2 stated that he heard that the opposite party used to work in the houses of present petitioner and there was ‘golmal’ and there was a ‘salish’ regarding pregnancy of opposite party. He stated that he was not present in the ‘salish’ and he heard about the salish. Evidence of P.W. 3 reveals that the present opposite party used to work in the house of this petitioner. In cross-examination he stated that Sayeda Khatun Bibi used to work in the house of Mahasin Sk. at Shialmara and Mahasin Sk. used to reside there. Evidence of O.P.W. 1, O.P.W. 2 and O.P.W. 3 do not reveal anything regarding mixing of present opposite party with any local youth to prove that she was a lady of easy virtue or woman of loose character. Their evidence do not prove that she used to work as maid servant in any other house.
11. Evidence is to be construed on its totality and on the whole. Appreciation of evidence on a single line or, single sentence is erroneous. Consideration of evidence adduced by the both parties lead to the irresistible conclusion that, the present opposite party was working as maid servant in the house of petitioner at Shialmara. It has also been established from evidence that petitioner was residing at Shialmara for his business purpose and opposite party was working in his house at Shialmara. The petitioner has his main house at Rani Nagar where his wife and children stay and his wife used to visit Shialmara occasionally. From evidence it has been established that the petitioner used to take rest in his Shialmara house at noon and the opposite party used to work as maid servant in his house throughout the whole day and she used to return back to her father’s house at evening. Evidence reveals that the petitioner wanted to enjoy the lust and young flesh of the opposite party and wanted to have sexual intercourse with her. When she refused to concede to his proposal, he gave promise to marry her and thereby enjoyed her flesh, youth and virginity and made her pregnant. The onus was upon the present petitioner to prove the allegation that she was a woman of loose character and had mixing with youths of that area and that she used to work as maid servant in other houses also. From evidence name of any person did not transpire with whom the opposite party had mixing to establish the allegation of petitioner that she was woman of loose character. From evidence name of any other person did not transpire in whose house the opposite party worked as maid servant.
12. On the other hand, reading of the entire evidence adduced by both parties prove it convincingly that the opposite party worked in the house of petitioner only and nowhere else. The petitioner could not deny her entry into his house and in cross-examination he admitted taking rest in his house at noon time. When a man and grown up lady came close to each other and the man had the desire of enjoying flesh of opposite party, whether that was noon time or, evening, possibility of sexual intercourse cannot be ruled out. There is no ground at all to disbelieve the evidence of P.W. 1 as being unmarried woman she would not take the risk of putting stigma on her character. It is well-known that our society does not recognise pregnancy of unmarried woman and such woman are almost ostracized in village. Why the opposite party would take such a risk of being ostracized in village including her family members by making a false accusation taking risk of stigma on her character of becoming pregnant without marriage.
13. In order to prove a case of such nature the crux for consideration is whether the petitioner had any access of having sexual intercourse with the opposite party due to which she became pregnant and whether the petitioner is the only person who had access to the opposite party for the sexual intercourse. The entire consideration of evidence prove that the opposite party was working in the house of petitioner at Shialmara. The petitioner in spite of having house at Rani Nagar, which was not far away from Shialmara, used to stay at Shialmara alone, His wife and children used to reside at Rani Nagar and they occasionally used to visit at Shialmara. The opposite party was engaged for doing domestic work of petitioner at his Shialmara house and most of the time the petitioner used to stay alone at Shialmara house. The evidence has convincingly proved that during noon time he used to take rest in his house at Shialmara where opposite party also used to remain present as it is in evidence of petitioner himself that she used to work throughout the day and used to leave for her residence at evening. The evidence of P.W. 1 proves that the petitioner wanted to have sexual intercourse with her when initially she did not agree. The petitioner in order to fulfil his desire then gave a promise to her that he would marry her and giving such promise had sexual intercourse with the opposite party. Due to such sexual intercourse the opposite party became pregnant and, when she was about three months pregnant she told petitioner to marry her but, the petitioner drove her out and not only that, he left the Shialmara residence and started residing at Rani Nagar. Subsequently, the opposite party gave birth to a male child at her father’s house and the petitioner claimed maintenance for the said illegitimate child of the petitioner. Evidence clearly establishes that at noon the petitioner had the access of having sexual intercourse with the opposite party. From the evidence and circumstances it has been convincingly proved that it was petitioner alone who had the access and opportunity of having sexual intercourse with the opposite party. When it has been proved that she had no illicit relation with any other person and that she did not work in any other house except the house of this petitioner, there is no ground at all to disbelieve the case of the opposite party. The evidence of present petitioner himself proves that only he had the access of having sexual intercourse with the opposite party and none else and he made her pregnant. The minor son of the opposite party is the illegitimate child of this petitioner.
14. From evidence it has been established that the petitioner is a businessman of cement and fertilizer and his monthly income is RS. 8,000 per month. Evidence of P.W. 1, P.W. 2 proves that the opposite party is unable to maintain herself and the child and, she has no source of income. The learned Additional Sessions Judge, therefore, made no mistake by granting maintenance in favour of the child of the opposite party who was born due to sexual intercourse between petitioner and the opposite party. The amount of maintenance approved by the learned Judge was not excessive considering present hard market and increase of price of all essential commodities. The amount of maintenance granted may be inadequate but, the opposite party as petitioner in the Trial Court claimed only Rs. 500 per month which has been allowed by the learned Courts below and the order regarding quantum of maintenance requires no interference.
15. The aforesaid discussion on the basis of evidence, circumstances and materials-on-record clearly establishes that the learned Additional Sessions Judge rightly came to a finding of fact that, it was petitioner only who had the access of having sexual intercourse with the opposite party as a result of which the opposite party became pregnant and gave birth to a male child who is the illegitimate child of this petitioner. In an application under Section 125 of Cr.P.C. DNA test is not permissible in view of decision of this Court in Manik Ch. Ankure v. State of West Bengal 2003 (4) CHN 649. Moreover, DNA test is not required at all when in the instant matter evidence is convincing and pin pointing to the fact that, it was only the petitioner who had access to meet with the opposite party and had the access of having sexual intercourse with her as a result of which she became pregnant and gave birth to the male child. This petitioner did not enquire about the child and did not pay any money or maintenance to the child and thereby neglected to maintain the child. The petitioner is, therefore, bound to maintain his illegitimate child. The learned Additional Sessions Judge rightly arrived at correct decision and this Court in this revision, which is the second revision, finds nothing to come to a different finding from the findings arrived at by the learned Court below. The order passed by the learned Additional Sessions Judge did not cause any illegality or material irregularity amounting to miscarriage of justice and the said order cannot be regarded as perverse.
16. In view of the aforesaid discussion the revisional application fails and is dismissed.
17. Interim order of stay, if any, stands vacated.
18. Send down the lower Court record along with copy of order to the learned Courts below.
19. All interim orders passed earlier stand vacated. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.