ALLAHABAD HIGH COURT
Bench: JUSTICES N.L. Ganguley B. Dikshit
KM. AHILYA AND OTHERS On 20 November 1991
This is first appeal under Section 19 of the Family Courts Act, 1984 by the alleged husband Kamal challenging the judgment and order of the Family Court in Criminal Suit No. 43 of 1989, by which the family Court awarded Rs. 100/- each to the three minor children, Km. Ahilya, Ram Kumar and Km. Sukhmari alias Neelu, total amount Rs. 300/- per month payable with effect from the date of filing of the application on 19.3.1989 for maintenance of the minors. The family Court after filing of the criminal suit under Section 125 Cr. P.C. issued notice and the appellant submitted the written statement.
2. The case of the respondents is that Kamal-appellant and Dhanni Ram were two real brothers. Smt Shanti was married to Dhanni Ram. Dhanni Ram died and after his death Smt. Shanti, according to custom, started living with appellant Kamal as his wife. It was pleaded that out of the said union three children Km. Ahilya, Raj Kumar and Km. Sukhmari were born. It was pleaded that since the appellant was not maintaining the minor children and paying necessary expenses, it was not possible for the mother Smt. Shanti to provide maintenance to them. Hence, application under Section 125 Cr. P.C. was filed. In the written statement it was admitted that Dhanni Ram was the real brother of Kamal-appellant. He emphatically denied that he ever kept or remarried Smt. Shanti. He catagorically denied that the three minor children named above were ever born out of the union with him and Smt. Shanti. He specifically pleaded that he was physically incapable of procreating children. He stated that he was already married and a wife was living with him and there was no issue born out of the said marriage. The appellant, in order to prove the physical incapability of procreating child, filed Medical Certificate of a doctor showing that in the chemical test of the seman there was no spermatozoa present. The medical certificate after examining his real wife was also filed to indicate that she was capable of bearing children.
3 The case of the appellant was that after the death of Dhanni Ram Smt. Shanti started living with one Bhajju as his wife and the three children were born out of the said union. Number of documents were filed by the appellant to show that in the Kutumb Register and Votors’ List Shanti was shown to be the wife of Bhajju. The case of the other side was that Bhajju was below 20 years of age and Smt. Shanti was above 40 years in age. They were related as Maami an Bhajja and as such it was not possible that such marital relation be formed, Bhajju was examined as a witness and the Court was pleased to direct him to produce the school certificate to find out his age.
4. The material question for adjudication of this first appeal is whether the three minor children were born out of the sexual relation of Kamal-appellant and Smt. Shanti. The appellant Kamal specifically pleaded that he was incapable of producing child on account of physical infirmity. An application 47-B was moved on his behalf before the family Court for permission to summon Dr. R.K. Gupta of Maha Rani Luxmi Bai Medical College, Jhansi, besides a witness panchayat Adhikari and certain other witnesses. It is strange to find that there were there applications moved on behalf of the appellant on 4.4.1990 and order for accepting the written statement was passed by the family Court after payment of costs, no order was passed on the application 47-B.
5. No doubt, the family Court took pains in dictating a long judgment after appreciating evidence before it, but the relevant question which was the crux of the matter and sole defence of the appellant was omitted to be considered by the Court. It was necessary to have given an opportunity to the appellant to produce the witness Dr. R.K. Gupta, whose medical certificate after chemical test of the semen was already on the record. Since the Court below failed to pass any order, the appellant was prejudiced in his defence. The judgment and order of the Court below cannot be sub-stained in view of the serious irregularities committed by it.
6. After hearing learned Counsel for the parties we are of the view that it would be necessary in the interest of justice that the appeal be allowed and the case be remanded to the Family Court with the direction to give an opportunity to the appellant to examine the Doctor and other witnesses whom he intends to examine in defence of his case. The Court below shall take such steps to decide the case before him within a period of six months from the date of filing a certified copy of this order. Any amount deposited on behalf of the appellant in pursuance of the interim order passed by this Court, if not already paid the respondents, shall not be paid and the same may be payable after fresh decision of the case according to law.
7. We the allow appeal and set aside the judgment and order of the Court below and direct the Family Court to decide the case afresh in light of the above observations,
8. Parties to bear their own costs.