Singaravelu v. Sathya (Minor aged 2 years)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:17.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1388 of 2006andM.P.No.1 of 2006Singaravelu ... Petitioner /Respondentvs.Sathya (Minor aged 2 years) .... Respondent /rep.by Guardian and motherII Petitioner Sembagadevi Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 12.10.2006 passed by the District Munsif cum JudicialMagistrate, Parangipettai, Cuddalore District, in M.C.No.6 of 2005.For Petitioner : Mr.K.V.SridharanFor Respondent : No appearance ORDER Challenging and impugning the order dated 12.10.2006 passedby the District Munsif cum Judicial Magistrate, Parangipettai,Cuddalore District, in M.C.No.6 of 2005, this criminal revisioncase is focussed.2. Compendiously and concisely, the facts which areabsolutely necessary and germane for the disposal of this criminalrevision case would run thus:-The respondent herein and the respondent's mother-Sembagadevifiled M.C.No.6 of 2005 under Section 125 of Cr.P.C. before theDistrict Munsif-cum-Judicial Magistrate, Parangipettai, CuddaloreDistrict, claiming maintenance from the revision petitioner herein.Inasmuch as the revision petitioner resisted the claim, enquiry wasconducted. (b) During enquiry, the mother of the respondent hereinexamined herself as P.W.1 along with one Thangasamy as P.W.2 andExs.P1 to P3 were marked. The revision petitioner herein examinedhimself as R.W.1 along with R.W.2 and R.W.3 and Exs.R1 to R4 weremarked. https://hcservices.ecourts.gov.in/hcservices/ (c) Ultimately, the claim made by Sembagadevi was dismissed.Whereas, the claim of Sathya-the respondent herein was accepted andthe revision petitioner was directed to pay a monthly maintenanceof Rs.500/- to Sathya. 3. Being aggrieved by and disconcerted with such awarding ofmaintenance in favour of Sathya payable by Singaravelu-the revisionpetitioner, this revision is focussed on various grounds, the gistand kernal of them would run thus: In the connected criminal case the Court acquitted therevision petitioner, of the charge of rape having been allegedlycommitted on Sembagadevi and that he was also acquitted of theoffence under Section 417 of IPC. Without any evidence, thelearned Magistrate simply assumed and presumed as though therevision petitioner is the father of the minor child-Sathya andawarded the maintenance, warranting interference by this Court.4. Despite printing the name of the respondent, no oneappeared. Heard the learned counsel for the revision petitioner.5. The learned counsel for the revision petitioner, byinviting the attention of this Court to the various portions of theevidence, would develop her argument that absolutely there is noshard or shred, miniscule or scintilla, molecular or iota ofevidence to point out that Sathya is the child of Singaravelu andin such a case, without any rhyme or reason, the Magistrate simplymulcted the revision petitioner-Singaravelu with the liability topay maintenance in favour of Sathya.6. The available evidence placed before me would reveal thataccording to P.W.1-Sembagadevi-the mother of Sathya, the revisionpetitioner-Singaravelu moved with her closely and in thatconnection alone, Sathya was born to her. 7. No doubt, the criminal case emerged, at the instance ofSembagadevi, for the offence under Sections 417 and 376 of IPC asagainst the revision petitioner herein, which ended in acquittalultimately. In fact, the Assistant Sessions Judge, acquitted therevision petitioner herein of the offences under Section 376 IPCand convicted for the offence under Section 417 of IPC. But theappellate Court acquitted the accused even of the offence underSection 417 IPC. 8. It is the defence of Singaravelu that Sembagadevi was inthe habit of moving with several males and more specifically, withher own brother-in-law and also with one Kandan and in thatprocess she might have got conceived and delivered Sathya and forthat, Singaravelu cannot be burdened with the task of payingmaintenance. To put it pithily and precisely, as per the revisionpetitioner he has not fathered Sathya and she is not his biologicalchild. https://hcservices.ecourts.gov.in/hcservices/

9. No doubt, in view of the latest medical development, if thepersons concerned are subjected to DNA test, which is almost aconclusive test, the truth will come out. The question arises asto whether in a summary proceeding like the one under Section 125of Cr.P.C., the revision petitioner, namely, Singaravelu, therespondent-Sathya and her mother-Sembagadevi could be subjected toD.N.A. test. 10. I am of the considered opinion that the Honourable ApexCourt in catena of decisions held that the proceedings underSection 125 of Cr.P.C. are summary in nature and after scanning theevidence available, that is both oral and documentary, a decisionhas to be arrived at, driving the parties to fight out their actualdispute in the regular forum by instituting appropriateproceedings. 11. At this juncture, my mind is reminiscent and redolent ofthe following decision of the Honourable Apex Court:(2003) 10 SCC 228 Amarjit Kaur vs. Harbhajan Singh, an excerptfrom it would run thus:8. Section 24 of the Hindu Marriage Act, 1955 empowersthe court in any proceeding under the Act, if it appears tothe court that either the wife or the husband, as the casemay be, has no independent income sufficient for her or hissupport and the necessary expenses of the proceeding, itmay, on the application of any one of them order the otherparty to pay to the petitioner the expenses of theproceeding and monthly maintenance as may seem to bereasonable during the proceeding, having regard to also theincome of both the petitioner and the respondent."12. What I could understand from the decision of theHonourable Apex Court is that when a hapless minor child isapproaching through her mother for some succour, the Court shouldnot drive them to a meandering process of proving paternity etc. Iam fully aware of the fact that Tom, Dich or Harry should not beallowed to invoke Section 125 of Cr.P.C., as against a gentlemanwho is unconnected with the seeker of maintenance and if permittedso, it would be deleterious to the society. A Magistrate, being alegally trained person is expected to appreciate the oral evidence,which is normally subjected to cross-examination, and also theavailable documentary evidence, if any, and come to a reasonedconclusion under Section 125 of Cr.P.C. and the same is alwayssubject to modification in the regular proceedings, if at allanything is required. 13. In this case, the Magistrate considered the evidence ofSembagadevi-P.W.1 and her father D.W.1 and got satisfied that therewas connection between Sembagadevi and Singaravelu and due to thatSathya was born. Simply because in the criminal case Singaraveluwas acquitted of the offences under Sections 417 and 376 ofCr.P.C., there is no presumption that the claim by Sathya-the minorchild for maintenance under Section 125 of Cr.P.C. should https://hcservices.ecourts.gov.in/hcservices/ necessarily be dismissed. The ingredients of Sections 417 and 376IPC are entirely different from the ingredients of Section 125 ofCr.P.C. Based on preponderance of probabilities, under Section 125of Cr.P.C., maintenance could be awarded, as the Honourable ApexCourt clearly held that the proceedings under Section 125 Cr.P.C.should be taken as civil in nature even though in stricto sensu itis quasi criminal. Without dilating on that, I am of theconsidered opinion that P.W.1, at the relevant time was a younggirl of 20 years old and Singaravelu was 23 years old. In such acase, the allegation put on P.W.1 that she was leading a waveredlife and she might have got conceived through some other males,appears to be too big a pill to swallow in the summary proceedingsunder Section 125 of Cr.P.C. 14. The learned counsel for the revision petitioner alsopointed out that Ex.P2-the Birth Certificate cannot be relied on,as it emerged subsequent to the lodging of the complaint bySembagadevi. 15. Be that as it may, what else Sembagadevi could do when shewas constrained to deliver a child, after lodging the complaint.At this juncture, my mind is reminiscent and redolent of thefollowing decisions of the Honourable Apex Court:(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari PrasadSingh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand)and another; an excerpt from it would run thus:"13. The instant case is not one where any such illegalitywas committed by the trial court. In the absence of anylegal infirmity either in the procedure or in the conduct ofthe trial, there was no justification for the High Court tointerfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a finding different fromthe trial court. In the absence of manifest illegalityresulting in grave miscarriage of justice, exercise ofrevisional jurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court was notjustified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance ofthe informant. It may be that the High Court on appreciationof the evidence on record may reach a conclusion differentfrom that of the trial court. But that by itself is nojustification for exercise of revisional jurisdiction underSection 401 of the Code of Criminal Procedure against ajudgment of acquittal. We cannot say that the judgment ofthe trial court in the instant case was perverse. No defectof procedure has been pointed out. There was also noimproper acceptance or rejection of evidence nor was thereany defect of procedure or illegality in the conduct of thetrial vitiating the trial itself. https://hcservices.ecourts.gov.in/hcservices/ (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjeeand Others vs. State of W.B.and others, an excerpt from it wouldrun thus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by theHigh Court only in very exceptional cases where the HighCourt finds defect of procedure or manifest error of lawresulting in flagrant miscarriage of justice."16. A bare perusal of those decisions would exemplify anddemonstrate that the High Court, while exercising its revisionaljurisdiction is not expected to interfere with the finding of factarrived at by both the Courts below simply because one other viewis possible or a different view could be taken. 17. Since the Magistrate exercised his discretionary powers inawarding maintenance in favour of the minor child, rejecting theclaim of Sembagadevi, based on factual appreciation, I am of theview that interference relating to the finding of fact by theMagistrate is not warranted. 18. Relating to the quantum is concerned, the Magistrateawarded only a moderate sum of Rs.500/- per month. Whereas, thelearned counsel for the revision petitioner would submit that asper the version of the revision petitioner as R.W.1, he was earningonly a sum of Rs.1000/-per month as an agricultural coolie and thathe cannot be mulcted with such heavy liability of paying a sum ofRs.500/- per month in favour of Sathya.19. Once again I would like to refer to the common or gardenprinciple of law that a father is expected to toil and moil likeanything and strain his every nerve to see that he is earning andproviding maintenance to his minor child and by pleading that he ishaving no enough source of income, he cannot wriggle out of hisliability. Taking into account the present day cost of living, achild cannot be brought up without even a a sum of Rs.500/-(fivehundred only) per month, which is the rock bottom level in awardingmaintenance. Hence, I am of the considered opinion that nointerference with the order of the lower Court is warranted.20. Accordingly, the criminal revision case is dismissed.Consequently, consequently connected miscellaneous petition isdismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ mskTo1. The District Munsif cum Judicial Magistrate, Parangipettai, Cuddalore District2. -Do-Thro The Chief Judicial MagistrateCuddalore District.3.The Section Officer, Criminal Section, High Court, Madras. 1 cc To Mr.K.V.Sridharan, Advocate, SR.32771Crl.R.C.No.1388 of 2006NTK(CO)SRA(30/7/2009)