JUDGMENT
T. Vaiphei, J.
1. This revision petition under Rule 6 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 is directed against the judgment dated 22.8.2003 passed by the learned Addl. Judge, District Council Court, Shillong in Criminal Revision No. 1 of 2003 whereby the appellant was directed to pay maintenance allowances of Rs. 1,000 per month to the respondent and a further sum of Rs. 750 per month for maintenance of the first adopted child.
2. The facts relevant for disposal of this revision petition may be briefly noticed at the very outset. The respondent herein filed an application under Section 125, Cr.P.C. before the Court of Subordinate District Council Court, Shillong against the appellant claiming maintenance allowances for herself and their two adopted female children, which was registered as MCR Case No. 9 of 2001. The case of the respondent is that she is the legal wife of the appellant and their marriage was solemnized on 27.3.1981 and when no issues were born from their wedlock, they adopted two female children on 20.2.1996 and on 4.2.2001, whose names are Miss Julinda Phawa and Miss Mervillind Phawa respectively. It is alleged by the respondent therein that the appellant deserted her and her adopted children since December 2000 and refused to maintain them, though they are dependent on him for their maintenance. The respondent claims that they have been unable to maintain themselves ever since their desertion by the appellant. According to the respondent, the appellant is serving as Lower Division Assistant in the Election Office, Government of Meghalaya and is drawing Rs. 8,000 per month as salary. The maintenance allowances claimed by the respondent is to the order of Rs. 3,000 per month. The appellant resists the application by filing his written objection in which he categorically denies all the allegations made by the respondent. The appellant contends that the adoption of the children are illegal and the documents of adoption relied on by the respondent are false and fabricated documents and the signatures contained therein are also forged and that once it is shown that no issues were born from their marriage, the question of maintaining the adopted children would not arise. It was also contended by the appellant herein that the respondent is a rich lady having a monthly income of Rs. 30,000 which she earns through her landed properties situated at different parts of Shillong. He, therefore, claims that as he is earning a meagre salary, is looking after his old aged parents and is not able to maintain the respondent and the adopted children.
3. The Trial Court, after hearing both the parties, by judgment and order dated 23.12.2002 directed the appellant to pay a sum of Rs. 2,500 per month for the maintenance of the respondent and her two adopted children with effect from 1.12.2002. Aggrieved by the said judgment and order, the appellant preferred Criminal Revision Petition No. 1 of 2003 before the learned Addl. District Council Court, Shillong, who, after hearing the parties, passed the impugned judgment partly allowing the revision petition in the manner indicated in the beginning. The Additional District Council Court, Shillong held that the adoption of the first child had taken place at the time when the appellant and the respondent were staying together and that the adoption in respect of this child was done with the consent of the appellant. Insofar as the second adopted child is concerned, the Trial Court held that there was no evidence on record to show that the adoption was done with the consent of the appellant and that the second adoption had taken place after the appellant deserted the respondent and, as such, there was no question of maintaining the second adopted child by him. The aforesaid findings are under challenge in this revision petition.
4. Assailing the findings of the learned Addl. Judge of the District Council Court, Shillong, Mr. S. Sen, the learned Counsel for the appellant advances four-fold contentions, namely, (1) The documents adduced by the respondent to show that there was valid adoption of the first adopted child, are false and fabricated documents and the Courts below grossly erred in relying upon these documents for holding that the first child was duly adopted with the consent of the appellant; (2) As per Khasi Customary Law, the only practice which is recognized for adoption is “Rap ling”, which means if a family has a separate share but has no daughters, she can choose to adopt any female belonging to the family or clan and that when the first adopted child was taken from Ganesh Das Hospital without ascertaining her clan or caste, such child could not be validly adopted and that when there is no adoption as per Khasi Customary Law, the question of maintaining the first adopted child cannot arise; (3) The Courts below completely overlooks the glaring fact that the respondent is having sufficient means to maintain herself and there was admission by the respondent of her ability to maintain herself in her cross-examination and (4) in any case, the adoption of the first child is illegal being in contravention of Juvenile Justice (Care and Protection of Children) Act, 2000 which prescribed that only authorized agencies such as Children Home or State Government-run Institution for Orphans can give away such adoption and when the admitted position of the parties being that the first child was taken from Ganesh Das Hospital, such adoption is not a valid adoption in the eye of law and that non-consideration of this vital aspects in the case has vitiated the impugned judgment, which is liable to be set aside.
5. Per contra, Mr. V.G.K. Kynta, the learned Counsel for the respondent contends that the concurrent findings of the Courts below with respect to the adoption, the marital relationship between the appellant and the respondent, the inability of the respondent to maintain herself and the first adopted child and the appellant is having sufficient means to maintain them, do not suffer from perversity and, therefore, do not warrant the interference of this Court. Inviting my attention to the decision of the Apex Court in Kirtikant D. Vadodaria v. State of Gujarat and Anr., , which held that even an adoptive mother and a childless step-mother, could claim maintenance allowances against her adopted son or her step-son, if she is a widow or her husband, if living, is also incapable of maintaining her, the learned Counsel submits that the same analogy can be applied in the instant case by holding that an adopted child could claim maintenance from its adoptive father. In support of his contention that an adopted child comes within the extended meaning of the word “child”, he takes me to the definition of “adoption” and “adopted child” as found in Black’s Law Dictionary (Eighth Edition). He also submits that the instant revision petition is also barred by Section 397(3) of the Code of Criminal Procedure inasmuch as the application for revision petition filed by the appellant has already been disposed of by the learned Addl. Judge, District Council Court in the impugned judgment. Contending that the revision petition is otherwise devoid of merit, he strenuously urges that the revision petition be dismissed with cost.
6. From the tone and tenor of the submission of the learned Counsel for the appellant in the course of hearing, it is obvious that the grievance of the appellant is mainly directed against the findings of both the Courts regarding the payment of maintenance allowances to the first adopted child and also of the capability of the respondent to maintain herself and the adopted child. The Trial Court had held that the two adopted children were entitled to maintenance allowances from the appellant since their adoption took place before the appellant deserted the respondent. The learned Addl. Judge, however, took the view that only the first child was adopted before the appellant deserted the respondent and the first child was thus entitled to maintenance from the appellant. As for the second adopted child, according to the learned Addl. Judge, this child was adopted after desertion of the respondent by the appellant and, as such, the question of granting maintenance allowances for the second child did not arise. The High Court is loath to interfere with the concurrent findings of facts given by the two Courts below in favour of the paternity of a child. When both the Courts below have given their concurrent findings that the first child had been duly adopted by the appellant and the respondent before the former deserted the latter, this Court is not inclined to interfere with such findings especially when no perversity is shown therein. In any case, the Trial Court is to take a prima facie view of the matter and it is not necessary for the Court to go into the dispute concerning the customary law of adoption in details. The reason is that the order passed in an application under Section 125, Cr .P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance of wives, children and parents. The provisions under Section 125, Cr.P.C. is not to be utilized for defeating the rights conferred by the Legislature on the destitute children, who are the victims of the social environment. Having said that, the core issue which has been raised by the learned Counsel for the appellant appears to the admissibility of maintenance allowances to an adopted child. Section 125(1), Cr.P.C. provides for an order for the maintenance of wives, children and parents, the relevant portion whereof are read thus:
Section 125. Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or refuses to maintain–
(a) His wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) His father or mother, unable to maintain himself or herself,
A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
7. A bare reading of the provisions extracted above indicates that a minor child contemplated therein must be the legitimate or illegitimate child of the person concerned, since the expression “minor child” is qualified by the words “legitimate or illegitimate”. The ordinary meaning of the expressions “legitimate child” or “illegitimate child” will necessarily imply that the child is a natural child and not an adopted child. Thus, an “adopted child” could not normally be described as either a “legitimate” or “illegitimate” child. Black’s Law Dictionary (Eighth Edn.) defines the terms “adoption” and “adopted child” in the following manner–
Adoption–The creation of a parent-child relationship by judicial order between two parties who usually are unrelated; the relation of parent and child created by law between persons who are not in fact parent and child. This relationship is brought about only after a determination that the child is an orphan or has been abandoned, or that the parents’ parental rights have been terminated by Court order. Adoption creates a parent-child relationship between the adopted child and the adoptive parents with all the rights, privileges, and responsibilities that attach to that relationship, though there may be agreed exceptions. There is a distinction between adoption and legitimating, and between adoption and fostering. Adoption usually refers to an act between persons unrelated by blood; legitimation refers to an act between persons related by blood. Universally, a decree of adoption confers legitimate status on the adopted child.
Adopted child–A child who has become the son or daughter of a parent or parents by virtue of legal or equitable adoption.
8. Be that as it may, in the words of the Apex Court (in Kirtikant D. Vadodaria v. State of Gujarat and Anr. (supra), while dealing with the ambit and scope of the provisions contained in Section 125, Cr.P.C., it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and parents, who are unable to maintain themselves but have a moral claim for support. The provisions in Section 125 provide a cheap and speedy remedy to those women, children and parents, who are in dire straits. These provisions are clearly intended to achieve a special and social purpose. The dominant purpose behind the benevolent provisions engrafted in Section 125 clearly is that the wife, child and parents should not be left in a state of distress, destitution and starvation. Having regard to this special purpose, in my judgment, the provisions of Section 125 shall have to be given a liberal construction to fulfil and achieve the intention of the Legislature. The concept of adoption is recognized, accepted and followed by the Khasi tribal community in their customaty law, a fact fairly conceded by the learned Counsel for the appellant: he only questions the legality/ existence of adoption of the first adopted child and of the admissibility of maintenance allowance to an adopted child. In this connection, it is instructive to note that Section 3(20) of the General Clauses Act, 1897 defines a “father”, in the case of any one whose personal law permits adoption, to include an adoptive father. If that is so, in a Khasi community where the customary law recognizes adoption, there can be no difficulty in holding that an adopted child can claim maintenance allowance from its adoptive Khasi father.
9. In Kirtikant D. Vadodaria v. State of Gujarat and Anr. (supra), the Apex Court was called upon to decide as to whether a step-mother can be included within the term “mother” under Section 125(1)(d), Cr.P.C. While observing that the expression “mother” clearly means the natural mother, who has given birth to the child and not the one, who is the wife of one’s father by another marriage, the Apex Court, nevertheless, proceeded to also hold that though an adoptive mother may also be included in the expression “mother” but not the step-mother, yet the step-mother can still proceed against her step-son provided that she is a widow or her husband, if living, is also incapable of supporting and maintaining her. Since the personal law of the parties permits adoption, the Apex Court, by applying the same logic, also held that an adoptive mother may also be included in the expression “mother”. The logical extension of the decision of the top Court, is that an adopted son can also come within the purview of the expression “child” within the meaning of Section 125(1)(b) of the Code. In the instant case, it has become all the more necessary in view of the fact that the first adopted child is apparently in danger of becoming a destitute or being orphaned after the desertion of his adoptive mother by the petitioner. The first adopted child, whose adoption has prima facie been found to be proved, should not be abandoned in the state of distress, destitution and starvation. In the view that I have taken, the contention of Mr. S. Sen, the learned Counsel for the appellant, that the first adopted child is not entitled to maintenance allowance from his adoptive father like the appellant does not hold water. The inevitable conclusion is that the petitioner has the duty to prove maintenance allowance to the first adopted minor child. The second limb of submission of the learned Counsel for the appellant that there could be no valid adoption of the first adopted child when the same was done in contravention of the Juvenile Justice (Care and Protection of Children) Act, 2000, need not detain us inasmuch as the such adoption admittedly took place in 1996 before the coming into force of the said Act. Moreover, when, on the facts found, such adoption actually took place as alleged by the respondent, contravention of the procedure for adoption cannot be a ground to deny maintenance allowance to the first adopted child provided for in a benevolent and welfare legislation like Section 125, Cr.P.C. Once it is found that the first adopted child is unable to maintain itself, it must be maintained by the petitioner to save it from starvation irrespective of whether the adoption was illegal or not.
10. Coming now to question of the ability of the respondent to maintain herself, much emphasis is laid by the learned Counsel for the appellant on her so-called admission in her cross-examination that she has sufficient means to maintain herself. It is submitted by the learned Counsel that once the respondent admitted that she has sufficient means to maintain herself, the Courts below could not have granted maintenance allowance to her and the adopted child. Mr. V.G.K. Kynta, the learned Counsel for the respondent, counters this submission by contending that such admission, if at all it can be regarded as an admission, should not be considered in isolation, but must read with her pleadings and her deposition in her examination-in-chief. Terming the admission as a slip of tongue unwittingly blurted out due to skilful cross-examination, the learned Counsel maintains that had been the true state of affairs, she would not have filed the application in the first place. Strong reliance is placed by him upon the decision of the Apex Court in Chikkam Koteswara Rao v. Chikkam Subbarao and Ors. and the decision of the Karnataka High Court in Parameshwari Bai v. Muthojiro Scindia AIR 1981 Knt. 40, in support of his contention.
11. In Chikkam Koteswara Rao (supra), the Apex Court observed that before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive and that there should be no doubt or ambiguity about the alleged admission. Relying upon the aforesaid observations, the Karnataka High Court in Parameshwari Bai (supra), held:
Stray sentences elicited in the cross-examination could hardly be construed as admission. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should not be any doubt or ambiguity about the alleged admission and to examine whether there is ambiguity in the admission, it would be necessary for the Court to read the other parts of the evidence and the stand taken by him in the pleadings.
In the instant case, I have taken pains to go through the entire deposition of the respondent in the cross-examination and her examination-in-chief. I have also carefully gone through her pleadings in the application filed by her. It cannot be overlooked that the application for maintenance allowance is filed by the respondent on the ground that she is unable to maintain herself. It has been her consistent stand throughout till the alleged admission made by her in her cross-examination that she has no sufficient means to maintain herself. The tone and tenor of her statement in her examination-in-chief and her cross-examination are unmistakable, namely, except for the alleged admission, she never wavers in the position taken by her that she is unable to maintain herself. The stray sentence indicating alleged admission on her part that she is able to maintain herself appears to be unnatural and totally inconsistent with the main thrust of her case to the contrary, thereby creating serious doubt or ambiguity about the alleged admission. Reading her cross-examination together with her examination-in-chief and of her pleadings, I am of the opinion that the alleged admission of the respondent appears to be unintended, or, rather, slip of tongue due to skilful cross-examination or blurted out unwittingly under the stress and strains of long cross-examination. Therefore, such stray sentence elicited in her cross-examination could hardly be construed as an admission or could hardly destroy/defeat her claim for maintenance.
12. In the view that I have taken, the alleged admission in the cross-examination of the respondent that she has sufficient means cannot also defeat her claim for maintenance. At any rate, the fact of her having sufficient means can also not defeat her claim for maintenance allowance unless the appellant could show that she was all along having sufficient means before his desertion. In this context, the observations of the Apex Court in Rajathi v. C. Ganesan, , on the interpretation of the expression “unable to maintain herself”, are relevant. The Apex Court therein has held that the expression “unable to maintain herself” would mean the means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow and that Section 125 is enacted on the premise that it is the obligation of the husband to maintain his wife, children and parents and that it would be for the husband to show that he has sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them. The Apex Court further observed therein that the statement of the wife that she was unable to maintain herself would be enough and it would be for the husband to prove otherwise. In the instant case, no attempt was made by the appellant to show that the respondent was able to maintain herself before he deserted her. It is quite possible that the properties alleged to have been owned by the respondent was acquired by her after his desertion and not before. In this view of the matter, I have no alternative but to hold that the respondent is unable to maintain herself. Consequently, I do not find any ground for upsetting the findings of the Courts below in the impugned judgment in their behalf.
13. For the reasons stated in the foregoing, this revision petition is devoid of merit and is liable to be dismissed, which I hereby do. However, on the facts and circumstances of the case, the parties are directed to bear their own costs.