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Bharat Singh vs Preeti on 22 January, 2018

1 Criminal Revision No.1120/2016
(Bharatsingh Vs. Preeti and another)

Gwalior, Dated : 22/01/2018
Shri Ashirwad Dwivedi, Counsel for the applicant.
Shri M.L. Yadav, Counsel for the respondents.

Heard Finally.

This Criminal Revision under Sections 397, 401 of
Cr.P.C. against the order dated 20-10-2016 passed by Principal
Judge, Family Court, Bhind in M.Cr.C. No.301/2014, by which
the application filed by the respondents under Section 125 of
Cr.P.C. has been allowed and the applicant has been directed
to pay Rs.2500/- and 700/- per month to the respondent nos.1
and 2 respectively.

The necessary facts for the disposal of the present
application in short are that the respondents had filed an
application under Section 125 of Cr.P.C. on the ground that the
respondent no.1 is the wife of the applicant. The marriage was
performed on 19-6-2010 as per Hindu rites and rituals. The
father of the respondent no.1 had given Rs.2 lacs in cash and
other gold, silver ornaments apart from other household
articles. Immediately after the marriage, the relatives of the
applicant started harassing her as they were not satisfied with
the dowry and they started demanding a motorcycle. After 8
days of marriage, the respondent no.1 came to her father’s
house. When the applicant came to take her back, even then
he demanded a motorcycle. The father politely said that his
financial condition is not such so as to fulfill the demand of
motorcycle. On hearing the refusal, the applicant and his
relatives started abusing the father of the respondent no.1.
The respondent no.1 stayed with the applicant till January 2011
as his wife, but she was continuously harassed and beaten for
2 Criminal Revision No.1120/2016
(Bharatsingh Vs. Preeti and another)

want of motorcycle. In the month of January, 2011, the
respondent no.1 came to her parents’ house, however, just
after 4-5 days, the applicant took her back. In the month of July
2011, she was beaten because of non-fulfillment of their
demand of dowry and kept her ornaments with them and left
her in her fathers’ home. An attempt was made for
reconciliation with the help of elder members of the society, but
it failed. The respondent no.1 was deserted from July 2011,
and the respondent no.1 has no independent source of income
and is unable to maintain herself. The applicant is earning
Rs.7000/- per month. It was further pleaded that in compliance
of the compromise, she stayed with the applicant and the
respondent no.2 has born out of the wedlock. Accordingly, a
prayer for grant of Rs.4000/- per month and Rs.1,200/- per
month for the respondent nos.1 and 2 respectively was made.

A written reply was filed by the applicant and all adverse
allegations were denied. It was also denied by the applicant
that the respondent no.2 is his daughter. It was further pleaded
that the respondent no.1 is self dependent and is earning
Rs.5000/- per month from stitching etc.
The Trial Court after recording the evidence of the
parties, has allowed the application and has directed the
applicant to pay Rs.2500/- and Rs.700/- per month to the
respondent nos.1 and 2 respectively.

Challenging the order passed by the Court below, it is
submitted by the Counsel for the applicant that in fact the
respondent no.1 is residing separately without any reasonable
reason and since respondent no.2 is not his daughter,
therefore, he is not liable to pay maintenance to the
respondent no.2.

3 Criminal Revision No.1120/2016
(Bharatsingh Vs. Preeti and another)

Per contra, it is submitted by the counsel for the
respondent that the Trial Court after properly appreciating the
material available on record, has rightly awarded the
maintenance to the respondents.

Heard the learned counsel for the parties.
So far as the question of paternity of the respondent no.2
is concerned, the respondent no.1 has specifically stated that
in a proceeding filed by her against the applicant and her other
in-laws, the matter was compromised and accordingly, both the
parties on 5-2-2013 had expressed that the matter has been
compromised and they are residing together with each other.
The copy of the order dated 5-2-2013 is Ex. P.2. Thus, it is the
case of the respondent no.1 that she had once again resided
with the applicant from 5-2-2013 in view of the compromise
arrived at between the parties and the fact of residing together
is also mentioned in order dated 5-2-2013, Ex. P.2. Thus, it is
clear that the applicant and the respondent no.1 had resided
together at least in the month of February 2013. According to
the birth certificate of the respondent no.2, Ex. P.1, the date of
birth of the respondent no.2 is 10-11-2013.

Applicant has denied that the respondent no.2 is his
daughter.

Section 112 of Evidence Act, 1872 reads as under :

112. Birth during marriage, conclusive
proof of legitimacy.–The fact that any
person was born during the continuance of a
valid marriage between his mother and any
man, or within two hundred and eighty days
after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he
is the legitimate son of that man, unless it
can be shown that the parties to the
marriage had no access to each other at any
time when he could have been begotten.

4 Criminal Revision No.1120/2016
(Bharatsingh Vs. Preeti and another)

Thus, it is clear that where a child is born during the
continuance of a valid marriage between her mother and
father, then it shall be the conclusive proof that he/she is the
legitimate son/daughter unless it can be shown that the parties
to the marriage had no access to each other at any time when
he/she could have been begotten. In the present case, it is
clear from the order sheet dated 5-2-2013 that it was
expressed by both the parties that the matter has been
compromised and they are residing together. Thus, it is clear
that the respondent no.1 has established beyond doubt that
they were residing together at least in the month of February
2013 and accordingly, she gave birth to the respondent no.2 in
the month of November 2013. Thus, considering the totality of
the facts and circumstances of the case as well as in view of
the provisions of Section 112 of the Evidence Act coupled with
the fact that the parties had resided together, at least in the
month of February 2013, it is held that the respondent no.2 is
the daughter of the applicant and is entitled for maintenance.

So far as the entitlement of the respondent no.1 to
receive the maintenance amount is concerned, it is clear from
the facts of the case that number of cases were instituted
between the parties, which prima facie establishes that the
respondent no.1 was harassed due to non-fulfillment of their
demand of dowry. Furthermore, by denying the paternity of the
respondent no.2, the applicant has in fact tried to assassinate
the character of the respondent no.1, which itself amounts to
cruelty. If the applicant was so sure that he is not the father of
the respondent no.2, then he could have filed an application for
getting the D.N.A. test of the respondent no.2 and himself, but
that was not done.

5 Criminal Revision No.1120/2016
(Bharatsingh Vs. Preeti and another)

Considering the totality of the facts and circumstances of
the case, this Court is of the considered opinion that the
respondent no.1 is also entitled to receive the maintenance
amount.

So far as the question of quantum of maintenance
amount is concerned, it is the case of the respondent no.1 that
the monthly income of the applicant is Rs.7000/-.

Considering the price index, inflation rate, prices of the
goods of daily needs, as well as the status of the parties, the
Court below has awarded Rs.2500/- and Rs.700/- per month to
the respondent nos.1 and 2 respectively. By no stretch of
imagination, the maintenance awarded by the Court below can
be said to be on higher side.

Accordingly, the order dated 20-10-2016 passed by the
Principal Judge, Family Court, Bhind in M.Cr.C. No.301/2014 is
hereby affirmed.

The application fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge
Arun*

Digitally signed by ARUN KUMAR MISHRA
Date: 2018.01.25 12:52:05 +05’30’

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