JUDGMENT
R.P. Awasthy, J.
1. This revision petition has been directed against the judgment dated 9.7.1990 passed by Sessions Judge, Raisen in Criminal Revision No. 27/89, by virtue of which the order of payment of maintenance allowance at the rate of Rs. 150/- to the daughter of the present petitioner has been set aside and the revision petition filed against the said order passed by the Judicial Magistrate, First Class has been allowed.
2. Facts of the case are that it was not disputed that Radhabai was duly married with Rajaram, according to Hindu Rites about 8 years prior to the filing of the petition dated 20.1.1986 for payment of maintenance allowance to her and to her daughter aged about 15 months.
3. Contention of petitioner Radhabai was that her husband Rajaram subjected her to cruelty and ousted her about two years prior to the date of filing of the petition. When she was residing in the house of her maternal uncle, she gave birth to a child (daughter). On some intervention being made by the relatives of both the parties, the non-applicant agreed to keep the petitioner with him and he further executed one agreement that in case, he would ill-treat the petitioner, he would give her six acres of land for her maintenance. Inspite of execution of the said agreement, he did not bring Radhabai and his daughter to his house and they were still residing in the house of her maternal uncle. She also stated that she was unable to maintain herself and that Rajaram had sufficient means to maintain his wife/petitioner. Inspite of it he was refusing or neglecting to maintain her and her daughter.
4. In reply the non-applicant submitted that the petitioner was leading an adulterous life. Inspite of it the non-applicant gave opportunities to the petitioner to mend her ways. Inspite of it the petitioner was found indulging in adultery with one Shanker Singh. Though he had executed one agreement, yet the brother of the petitioner viz., Durjan Singh did not want that petitioner Radhabai should reside with the non-applicant-Rajaram. After execution of the agreement Durjan Singh did not bring Radhabai to house and, therefore, Radhabai was residing in the house of her maternal Uncle.
5. After recording evidence, the Trial Court held that since Radhabai was leading an adulterous life, she was not entitled to get maintenance allowance from non-applicant-Rajaram. However, inspite of giving a finding that it was doubtful that the daughter of Radhabai was born out of the wed-lock with the non-applicant-Rajaram, the Trial Court ordered Rajaram to pay maintenance allowance at the above referred rate.
6. Against the said finding Rajaram preferred a Revision Petition which was allowed by the learned Sessions Judge.
7. It has been argued for the petitioner-Radhabai that it was not disputed by Rajaram that he had executed the agreement by virtue of which six acres of land was agreed to be given to Radhabai. In the said agreement itself, it is specifically mentioned that the daughter born to Radhabai was so born through the non-applicant-Rajaram. There is absolutely no mention that she was an illegitimate child of Radhabai and consequently the fact that Rajaram is the father of the daughter of Radhabai is fully established by the said documentary evidence.
8. In reply, it has been submitted that the Trial Court was obviously in error in holding that inspite of the facet that the daughter of Radhabai was not born through non-applicant Rajaram, still Rajaram was liable to maintain her. Therefore, the learned Sessions Judge had not committed any error in allowing the revision petition and setting aside the order passed by the learned Magistrate.
9. It is obvious that the learned Judge of the Trial Court as well as the learned Counsel for the petitioner were harbouring under a total misapprehension of law that Rajaram would be liable to maintain the child of Radhabai, even if it be established that she was not his child or was born, as a result of adulterous relations of Radhabai with some other person. Therefore, the documents produced in the case were neither got proved in accordance with law nor were exhibited. In Para No. 3 of the petition, there is mention of a execution of an agreement which was not disputed by Rajaram. There is nothing in record to indicate that the document dated 22.10.1984 is that agreement which is said to have been executed by Rajaram which contains an admission of Rajaram.
10. Under the said circumstance, in my opinion it would be proper and in fitness of things and would be in the interest of justice, if the order passed by the learned Sessions Judge is set aside and the record of the Miscellaneous Judicial Case No. 3/86 be remanded to the Court of Judicial Magistrate, First Class, Bareli for recording the evidence regarding execution of the document dated 22.10.1984 which is said to be an agreement executed by Rajaram. It is being made clear that the petitioner shall be required to produce the original documents. If the said original documents be not in existence or has been lost or destroyed then the petitioner would be supposed to file an application for leading secondary evidence regarding the said documents.
11. After recording the said evidence to be adduced by the petitioner, opportunity shall be given to the non-applicant-Rajaram to adduce the evidence, if any in, rebuttal. Thereafter, the Trial Court shall give a finding afresh regarding the aspect as to whether it is established that the daughter of Radhabai was not born out of wed-lock between Radhabai and Rajaram.
12. The record of Miscellaneous Judicial Case No. 3/86 be sent to the Trial Court, that is, Judicial Magistrate, First Chass, Bareli within 15 days of passing of this order alongwith the copy of this order. The parties to the case shall appear in the said Court on 27.7.1995.