AHMAD ULLAH KUNDJI Vs. HUMARIA
HIGH COURT OF JAMMU AND KASHMIR
AHMAD ULLAH KUNDJI
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(1.) Trial Court of Judicial Magistrate, City Munsiff, Srinagar has granted maintenance to the respondent from the petitioner under the provisions of S.488, Cr.P.C. at the rate of Rs. 200/- per month from the date of passing of the order i.e. from 23-4-1983. The petitioner filed a revision petition before the Additional Sessions Judge, Srinagar against the order of the trial Magistrate and the Additional Sessions Judge, Srinagar has made a reference to this Court with the recommendation that the respondent was not the daughter of the petitioner and as such she was not entitled to be maintained by the petitioner herein and the order is recommended to be quashed.
(2.) Learned counsel for the parties argued this case for a considerable time. A preliminary objection was raised by Mr. Z.A. Shah appearing for the respondent to the effect that the findings of fact cannot be interfered with by this Court in revision. Mr. Qayoom has submitted these findings of fact are perverse and illegal, therefore revisional Court has the power to go into this finding to the extent of discovering as to whether respondent's mother and the petitioner were at all married or not. If their marriage is not proved, the respondent cannot be held to be daughter of the petitioner. He has also submitted that the order under S.488, Cr. P.C. is not appealable, therefore a duty is cast on the revisional Court to examine the order and its legality. He has referred to the provisions of S.439, Cr.P.C. to indicate that revisional Court has the same powers which are vested in a Court of appeal. On the terms of the said section it is submitted that revisional Court can go into the question of facts also in appropriate cases.
(3.) It is true that revisional Court has not to examine the question of fact which fact is established on evidence. That would mean that revisional Court cannot scan or appreciate the evidence if its appreciation is valid. But if the appreciation of evidence is perverse or illegal, or if the trial Court has based its order on an evidence which is not admissible, the revisional Court may, in such cases examine the evidence and record the impropriety or illegality committed by the trial Court. If the paternity of a child is denied and the trial Court gives a finding on the said question which finding is said to be based on no evidence or on evidence which is not admissible, the revisional Court may in appropriate cases examine the evidence for the limited object of finding out as to whether the appreciation made by the trial Court was valid or not.;
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