ORDER
Pratibha Upasani, J.
1. This Writ Petition is filed, being aggrieved by the order dated 19th March, 1991, passed by the Additional Sessions Judge, Nashik in Criminal Revision Application No. 148 of 1989, partly allowing the Revision filed by the applicants (Respondent Nos. 1 and 2 herein). By this order, the learned Addl. Sessions Judge upheld the finding of the lower Court that the applicant Sulochana is not legally wedded wife of Pandharinath, petitioner herein. However, as far as the issue of claim of maintenance of daughter of Sulochana viz., applicant No. 1 was concerned, he remanded the matter back for inquiry into the alleged paternity of Surekha vis-a-vis Pandharinath and then to decide the application of maintenance of Surekha in accordance with law. The parties were directed to appear in the lower Court on 19th April, 1991. However, this Court (Coram : M.G. Chaudhari, J.) vide its order dated 15th July 1991 granted ad-interim stay in terms of prayer (c) and the matter is hanging fire since then.
2. Few facts which are required to be narrated, are as follows :–
It is the case of Respondent No. 2 Sulochana Pandharinath Thube that her marriage with the petitioner-original opponent Pandharinath was solemnized about 10 years back and that it was Gandharv marriage. Initially she was given good treatment by the said Pandharinath for 2-3 years. She also gave birth to one son who, however, died subsequently. In the year 1983, Sulochana gave birth to Surekha (Respondent No. 1 herein). According to her, Pandharinath is the father of minor girl Surekha. After the marriage, Pandharinath purchased agricultural field owned by Sulochana, her sister and mother for the consideration of Rs. 10,000/-. However, as per the assurance, Pandharinath did not pay the amount of Rs. 10,000/- to Sulochana, her sister and mother and when demand was made for the payment of the same, Pandharinath beat her and drove her outside the house. Thereafter Sulochana tried to cohabit with Pandharinath. She also filed one Criminal Case against him in respect of nonpayment of the said amount. However, subsequently compromise took place and Pandharinath agreed to cohabit with Sulochana. It is alleged that Pandharinath, however, did not cohabit with her and refused to maintain her and the child. Sulochana, therefore, made Maintenance Application No. 66 of 1987 in the Court of the Judicial Magistrate, First Class, Niphad, claiming maintenance for herself and her daughter. The learned Magistrate by his judgment and order dated 13th March 1989 came to a finding that Sulochana could not prove that she was legally wedded wife of Pandharinath and, therefore, was not entitled to maintenance from Pandharinath. He did not consider the point of maintenance with respect to applicant No. 1 Surekha, who was 7 1/2 years of age and no finding was given on the points whether she was entitled to maintenance and what amount should be given to her.
3. Being aggrieved by the order passed by the learned Judicial Magistrate, First Class, Niphad, the applicants Ms. Surekha and Smt. Sulochana filed Criminal Revision Application No. 148 of 1989 in the Court of the Additional Sessions Judge, Nashik. The said Revision came to be partly allowed and the finding of the lower Court with respect to applicant No. 2 Sulochana that she was not legally wedded wife of Pandharinath, was maintained. The learned Addl. Sessions Judge, however, observed that there was no finding of the lower Court about the putative status of Pandharinath vis-a-vis Sulochana and parties should be given fresh chance to lead elaborate evidence on this point. He observed that even though Sulochana is held to be not legally wedded wife of Pandharinath that should not deprive illegitimate child viz., Surekha from being awarded maintenance by Pandharinath. He observed that perusal of record Showed that the parties did not foresee the situation in which Sulochana would be held as not legally wedded wife of Pandharinath and, therefore, the applicant Sulochana did not lead any evidence proving Surekha as illegitimate child of Pandharinath. Observing this, he remanded the matter back to the lower Court for inquiry into the alleged paternity of Surekha vis-a-vis Pandharinath and then to decide the application of maintenance of Surekha according to law. It is against this order, the present writ petition has been filed.
4. Mrs. Agarwal, appearing for the petitioner, submitted that in the proceedings under Section 125 of the Code of Criminal Procedure issue of paternity cannot be raised an d decided as it is necessarily the power of the Civil Court. She further argued that by directing the parties to lead furthere vidence by remanding the matter for that purpose, the criminal Court has exceeded its on power. Mrs. Agarwal relied on 1991 Cri LJ 2847 in the case of Chandrapal v. Smt. Harpyari, wherein it is observed that provisions of Section 125 have been engrafted in Criminal Procedure Code for preventing destitution or vagrancy and providing succour to starving persons and frequent remand of cases under Section 125 or revisions arising therefrom defeat the very purpose of this section.
5. On the other hand, Ms. Smita S. Shetkar, appearing for Respondent Nos. 1 and 2 relied on the decision of the Supreme Court in the case of Sumitra Devi v. Bhikan Choudhary , wherein the Apex Court remanded the matter back for proving the factum of marriage since the claim for maintenance to the wife and child was at issue, reiterating the position that even an illegitimate minor child was entitled to maintenance.
6. I have heard both the learned Advocates at length. I have perused the proceedings. In my opinion, though there is an inordinate delay, certainly injustice has been done to the minor daughter Surekha. The learned Magistrate, Niphad, while giving finding that Sulochana was not legally wedded wife of Pandharinath, did not at all consider the point of the first applicant Kum. Surekha, whether she was entitled to any maintenance at all. That aspect was left entirely untouched. The learned Addl. Sessions Judge observed that perusal of record showed that the parties obviously did not expect this to be the outcome and did not lead any evidence as far as maintenance of Surekha was concerned. He rightly observed that since there was no finding of the lower Court on this aspect, parties should be given fair opportunity of leading evidence about the alleged claim of Surekha’s maintenance. The argument of Mrs. Agarwal that in the proceedings under Section 125 of the Code of Criminal Procedure, the Court would be exceeding its power if any finding is sought with respect to the paternity of Pandharinath which has bearing upon the claim of maintenance of Surekha cannot be accepted. In fact the Magistrate cannot dismiss the application under Section 125 of the Code of Criminal Procedure, 1973, for maintenance simply because it involves substantial questions of civil nature e.g. validity of a marriage, paternity of a child etc. I find support for this finding from the judgment of the Gujarat High Court reported in 1979 Cri LR (Guj) 489.
7. The proceedings under Section 125 of the Code of Criminal Procedure are in the nature of civil proceedings. Though they are wholly governed by the procedure of the Code of Criminal Procedure, they are really of civil nature, but are dealt with summarily in a Criminal Court for the purpose of speedy disposal on grounds of convenience and social order. In the present case at hand, the claim of maintenance of Surekha was not at all considered by the lower Court. It was erroneous on the part of the learned Magistrate not to consider her claim. This error was partly undone by the Sessions Court. It is true that many years have passed and to send the matter back to the lower Court at this stage after so many years for the purpose of allowing the parties to lead evidence will be a bit difficult for both the parties. However, not allowing them to do so also will deprive the parties to put forth before the Magistrate the evidence which ought to have been produced by them earlier. As already observed, the Magistrate has not at all touched the aspect of maintenance of Surekha who even now is a minor and unmarried girl. Just because there is delay, the injustice which has been perpetrated should not be perpetuated. This will amount to total denial of justice. In fact allowing the parties to lead evidence will be equally fair for both the parties and not that it will be advantageous only to the Respondents. The petitioner also will get equal opportunity to put forth his side and, therefore, he should not have any grievance if the matter is remanded back. Hence the following order: Writ Petition is dismissed. Parties to appear in the lower Court on 28th April 1999. The learned Magistrate is directed to dispose of the matter in accordance with law as expeditiously as possible and certainly on or before 31st August 1999.
Certified copy expedited.