Kanakram Patel v. Daujatram

Kanakram Patel, aged about 52 years, S/o Shri Chamrur-am Patei, Caste Atera\ Agriculturlst LQbour, R/o Viilcge Chaknar, PoSicc Station ©andai, Tah^ij Chhuikhadan, Dlstt. RGJnand9<K)n (€,&.) Versus Daujatram, aged obout 8 yecrs, S/o htot known, R/o Viiioge ChaS<nar% PoISc& Station ©andai,AAinor throi^h his noturaS guardian Mother Smt. Dashribai, Wsdow of Late Shri Tijuram Scihu, a9ed dboyt 45 years, A9riculturl5t Labour, R/o VslSage Chaknar, Police Station &cindQi, Tflhsil Chhyikhadan, &istt. ftajnandg^n (C.^.5 {Petition under Sectlon 482 of fhe Code of Criminai Procedyre, 1973) Present? ' . Mr. P.K.C. Tiwary, Senior Advocote with Mr- Rakesh Tltakur, Advocate for the petittoner- Mr- Rakesh Pandey, coyn$@J for the respondent. Sinole Bench: Hon'ble Mr. T.P. Sharma.J OR^L. OW&t (28-11-2CS08)

1. Jh^ petition is directed against the order dated 12-U"2CK)7 pc^sed by 1+ie Additionat Sessions Judge, KhdrGgor'h in Criminal Revision No.52/2007 offirmirg the order doted 10-5-2CX37 passed by the Judicial AAcgistrate, First Class, Kholragarh in Misc. Criminat Case No.&4/2006 whereby the trial Court has awarded mdntenonce to the respondent crs iSlegitimate child,.

2. The <OTord is chaiienged on the ground that wthout aw suffident evideiice the Court beiow ha^ crrived at a finding that the respondent is JilegJtimQte child of the petitioner and committed itl.egaiity, , 3, I have heard leGrned counsel for the parties Gnd peru^ed.th€ order impygned as oiso th©record of the Courts beiow. 1;/ 1-- ^

4. Learned counsel for the petitioner submits thot occordmQ to the case of the respondent, the petitioner has committed rape with the mother of respondent and as a result of the said rape/sexual intercourse, she conceived ond deilvered the respondent. The respondent is the itlegitimQte child of petitloner. Thls is not the case of second marriQ9e, irregular marriage, unlawful marria9is o^ E^^9 cohabitation between the petitioner and mother of Itie respondent, this is a cose of casual cohcbitation which mother of the respondent has not hoped; Learned counsel further submits that in the cose of itlegitimGte chiSd, mother of th@ said child ig required to prove the fact that retation between the petitioner csnd mother of iSJegitimate child is virtually orse of monogcmious.

5. On the other hand, learned cours^ei for the respondent submits thGt 1+ie Court bebi^ after appreciatinQ the evidence avcsiiable on record, crrived Qt Q findin9 that the respondent is illegitimate child of the petittoner. He fyrther submits that the Court be!ow has not comraitted any IJl©gality. Mother of the respondent has quoted the cose of the respondent, the petitioner hcg not cross-examined the mother of the respondent to show that the petitioner wos not having any retation with the mother of the respondent, she has not conceived and as a r^s^ilt of ^uch reiation 90^6 birth to the respondent.

6. On careful examination of record, it appeoirs that mother of the respondent has iod9ed report agalnst the petitioner for offence punishobte under Section 376 of the I.P.C. The petitioner wos trted for the said offence and acquitted finally. ^ Accordirsg to the mother of th©respond@nt, the petitioner conimitted forceful sexual intercourse with her for 3-4 tiwes os a result of whsch ^he conceived €nd delivered the respondent, The petitlo'ner has filed suit for decbration c^ainst the rcspondent reJQting to birth certlficate thct h@ is not the father of the respondent and wrongty the name of the petitioner has been mentioned. The said suit was dismissed. Ttiie Court below has consldered the birth certificate and arrlved at a findin9 that ieQQtity & propriety of the birth certificate has not teen challer^ed by the petitioner ^hsch is evident, a!thou9h the author of the birth certificate Kotwor Sitaram (NAW-2) has $tated that he ha^ corrected the entry and strske off the name of the petitioner1 from the birth entry register. This is the case of irregulcir marriage, second married, ilieg<xl mwnage or bn9 cohabitGtion bet^een the petitioner <& mother of the respondent Paternity of the re^pondent is b^ed on the cohQbitation of l+ie petitioner withmother of ti^e respondent by committini9 rope. '"7- ^^^

7. As has been hsld by the Madras HiQh Court iin the matter of DuroJrcyu v. Neela and arsother reported in 1976 CRI. L.J. 1507 in pQra 6 the chitd Irrespective of 11 To decide the paternity of the child is prima-facie improper to accept the mere stQtement of the mother, ypon whorri the burden to ©stablishthe paternity of the child- It is true that corroborative evidence is tiot ysualiy forthcoming and therefore the AA^Istrate has to rely upn other corr'obor<2tin9 cireurri^tGraces if they are avaiSabJe. But at that ^6m& timc 11 Is not correct to scy that untess the child is admitted by the putative father to bc his IIIegitimat^ child, the Magistrote has no power to make an order for payment of niaintenance. The ba^is of an application for masntenance of aehild is the its legitiniQcy or pQternity of llkgitimQcy. T?rrierefor<s, it is the duty of the Cour't/bsfore making the order, to flnd definitely though in a ^ummory manner, the patemity of the chlld. In the instant case, the medical officer who made the entnes in Ex. P-1 has not been exomined. PW 1 is the witness who hod made the entries in the ori9inal of Ex. P-2 on the basls of 1+ie entries made in Ex. P-1. The author of the inforriiatiori is not mentioned in &<, P.1. It may aiso be noted here that PW-2 herself hos not stated that she mentioned to the doctor that the child ^as born to her through the petitioner. In the obsence of such evidence the question is whether this documerat eouid by it^e!f prove the relevont entries mode thereon Section 35 of the Evidence Act states as follows:- "An entry in any public or other offjcid book, register or record stating a fact in issue or r@Sevant fact and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which i^ it^clf a ^ueh book, registcr or relevant fact". is kapt, r€cor$d To prove the document under 5©ction35 it mu^t be shown that the document was prepared by a pyblic servant in discharge of his official duty or by any y^rson in performance of Q duty ^peciaily enjoined by the iaw. But in th8a3 ease ther-e is absolutely no evidence on the side of the respondents as to whose signoture is found in Ex. P.1 as the informant. PW-1 does not speok about the signexture found on Ex. P.1 of course, it is not pos^ibje for him. Either the aythor of Ex. P.1 or onybody from the hospitdi hos not been examined to prove the intimation unders Ex. P.1. In the absence of such evidenee, it cannot be heid that the entries were niade by Q public servcyit in discharge of his officiai dvty so as to prove the evjdence of poternity. Therefore, no presumption of paternity can arise out of these ti^o docymenta. It i^ wel! stated that uniess it is estabiished beyond doubt that a woman was the exclusively kept mi^tress of the man arad the reiatiori^hip was virtuGHy Wi€ of mono9amy/ it cannot be Segitimately presumed that the chiid i^as born to thc ^'oman throygh that man (vide M<diad.€va Rao V. Yasoda Devi 1961 Mad WN (Crl) l64=(l962 (l) Cri LJ ' ^^'^%, ^w€"\ A... % ' ^^^ ^%.s^;" 437 (2). For the reasons mentioned above, the record, Exs- P.1 and P2 in this case, are not adequate to ^ustain <my such finding and the evidence of PW 2 is also not sufficient to hold that she i^as kept exclusivety a^ a concubine of the petitsoner and during such period only she conceived/' It WQS aiso observed in para 8 as under:- 1 "The burden of proof is not upon the father of the child m such case^. It is for the mother ciaiming niairstenance to show the child was born to the alleged father and the the exdusive reiationship. Consequentjy, circum^tances of since it cannot be said that the paternity of the second in the instant case has been proved either1 by respondent documentary or oral evSdence or by both, this revision will hwe to be alfowed and the order of maintenance pas^d by the learned Magi^trate hos to be vacoted. Hence, I set oside the order passed by the lecrned AAagistrate and ailow thte revisjon petition." ^ 8« Mother of the child is required to prove the fact that reiation betw^n her csid the present petitioner against whom maintenance hcs been ciaimed was virtually one of monogamou^. In this case, mother of the respondent hos not adduced any conclusive evidence to the effect thot relation between her & the petitioner was virtually one of mono9amous and in absence of such evidence, any finding relating to the paternity of the ilJe9itimate child is not sustaincfcle.

9. This is a summary proceedlng and in order to decide the righte of the parties, parties are required to avail their remedy before the competent Court. Court' below has not considered this aspect ond committed iilegality which resulted in miscarriQQ^of justice.

10. Consequently, the order impugned is not sustainiQble and liQble to be set aside, it is hereby set oside. The petition is allowed. Maintemince awcrded to the respondent agdnst the petitioner Ss wcivect. Henceforth the petitioner is not required to pay any maintenance to the respondent. 11< In view of thi$ order, I.A.Nol/2007 stands dlsposed of. Soma Sd/- T.P. Sharma Judge