HIGH COURT OF KERALA
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(1.) This petition raised a question, which appears to be slightly startling to me, under S.488 of the Code of Criminal Procedure. The objection raised by the petitioner, the alleged father of the respondent, is that the criminal court is not the proper forum for deciding the paternity of the respondent, in other words, the criminal court, under S.488 of the Code, has no jurisdiction to decide a question relating to the paternity of a child. In short, the contention amounts to that the criminal court has jurisdiction to award maintenance only when the paternity of the child is admitted. M V. K. Hamza, the counsel of the petitioner argues that if there is a special law applicable to the father like the Hindu Adoption and Maintenance Act, the Travancore Nayar Act or the Travancore Ezhava Act, it is that special law that has to apply and not the general law contained in S.488 of the Code of Criminal Procedure. The counsel also contends that since the procedure contemplated by S.488 is only summary procedure, complicated or important and far reaching questions like the paternity of a child should not be decided by a criminal court under this section.
(2.) It is not a question of a special law superseding a general law. One purpose of enacting S.488 of the Code is to prevent children, who are not able to maintain themselves, being thrown on the road. In such a case, the legislature thought and rightly thought that the putative father must maintain the child so long as the child was not in a position to maintain itself. There is therefore no force in the contention that S.488 contains a general law, which will be superseded by the personal law or the special law of the father.
(3.) Then about the second contention. If the criminal court has jurisdiction to award maintenance to a child which it undoubtedly has, it must necessarily have the jurisdiction to decide whether a child claiming maintenance is the child of the respondent. If the contention of the counsel is accepted, S.488 of the Code of Criminal Procedure will become a dead letter. Of course, the procedure contemplated by the section is only summary procedure; but that does not mean that the moment a complicated question is raised, the criminal court is deprived of its jurisdiction under this section. A person who is aggrieved by the order of the criminal court may resort to the civil court, as the order of the criminal court is not final.;
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