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Maintenance for an illegitimate child from an alleged father

ORRISA HIGH COURT

Brief : : Where maintenance is claimed for an illegitimate child from an alleged father, it is not enough that the defendant would have been the father, but the court has to find out that in all reasonability no one else could have been the father

Smt. Ahalya Bariha Alias Barihani vs Chhelia Padhan on 19/7/1991

ORDER : A. Pasayat, J.

1. Petitioner assails correctness of order passed by the learned Additional SessiJudge, Bargarh, holding that the petitioner had failed to establish that she was entitled to any monthly allowance, for an illegitimate child, from the opposite party. The learned Subordinate Judge and Judicial Magistrate, first class, Padampur, had granted such allowance, which was reversed in revision by the learned Additional Sessions Judge.

2. Petitioner claimed Rs. 50/- per month from the opposite party on the
ground that latter was father of her illegitimate child, which was born
out of illicit sexual relationship between them. Petitioner examined
four witnesses to further her case, while opposite party examined five.
Two documents were exhibited by petitioner purporting to show that the
village committee had accepted the relationship between the parties,
and the birth of the child was from their illicit sexual relations. The
trial court accepted the prayer. The learned Additional Sessions Judge
reversed the order holding that in order to be entitled to maintenance
in terms of Section 125(1) of the Code of Criminal Procedure, 1973 (in
short ‘the Code’), it has to be established by credible evidence,
corroborating the assertions of paternity of the child. According to
him, the materials on record did not establish it.

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3. The learned counsel for the petitioner submits that there has been
improper evaluation of evidence on record, and material evidence has
been kept out of consideration. According to him, the two documents
containing decisions of the village committee have been misinterpreted
and though they establish the case of the petitioner beyond a doubt,
they have been erroneously held to be irrelevant.

4. The learned counsel for the opposite party, however, submits that on
elaborate analysis of evidence, the learned Additional Sessions Judge
has arrived at right conclusions and therefore, there is no scope for
interference in this revision application.

5. The object of Section 125 of the Code is to provide a summary remedy
to save dependants from destitution and vagrancy and this is to serve a
social purpose, apart from and independent of the obligations of the
parties under their personal law. The right of the child legitimate or
illegitimate under the Code is an individual right of the child in his
or on her own right, independent of the mother. When a woman claims
maintenance on behalf of a minor child out of wedlock against his
alleged putative father, the onus is on her to show that the child
could only have been born through the alleged father under the
circumstances of an exclusive relationship (See AIR 1962 Madras 141:
(1962 (1) Cri LJ 437 (2)) B. Mahadeva Rao v. Yesoda Bai) and 1976 Cri
LJ 1507 Durairaju v. Neela). In such a case the woman being a highly
interested person, the Court has a duty to see that her statement gets
independent corroboration, direct or circumstantial, that the claimant
could have conceived the child when she and the alleged father had
access to each other.

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6. Section 125 aims not to punish for the past, but to prevent future
vagrancy by compelling those who are capable, to support those who are
unable to support themselves and have a moral claim to support. (See
AIR 1963 SC 1521: (1963 (2) Cri LJ 413) Mst. Jagir Kaur v. Jaswant
Singh. While deciding the case of entitlement of a child, paternity and
not legitimacy has to be seen. Where maintenance is claimed for an
illegitimate child from an alleged father, it is not enough that the
defendant would have been the father, but the Court has to find out
that in all reasonability no one else could have been the father. The
evidence in this case falls short of that requirement. The so-called
decisions of the village committee on which strong reliance has been
placed is of no assistance to the petitioner, because it is not shown
that the opposite party had conceded to be bound by it. On the other
hand, the evidence of the witnesses is discrepant on the question
whether he was at all present when the alleged decisions were taken.
While some assert his presence, others accept his absence. The
substance of decisions of the committee has been described differently
by the witnesses. This aspect has been highlighted by the learned
Additional Sessions Judge. I find no perversity in the conclusions or
reasonings.

7. The revision application is, accordingly, dismissed.

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