- (1.) P. K. Jain, J. Heard Sri Subodh Kumar learned Counsel for the revisionist and the learned A. G. A.
(2.) RESPONDENT Smt. Rekha filed Criminal Misc. Petition under Section 125, Cr. P. C. before the Judge, Family Court, Bareilly, decided by Sri M. S. Raizada, claiming maintenance for herself and her two minor male children said to be born from the petitioner. The petitioner contested the maintenance petition. He admitted marriage with respondent No. 1 as also birth of the first male child. He, however, vehemently disputed the birth of the second child from him and specifically alleged that the second child was not born from him and was an illegitimate child. Admittedly in her petition under Sectoin 125, Cr. P. C. (Annexure 1 to the petition) respondent No. 1 claimed that she was turned out of the house by the petitioner on 6-6-1989. Birth certificate, Annexure 2, discloses that the male child was born on 28-11-1990 and the father's name was described as Govind Pal Singh (the present petitioner ). The contention of the learned Counsel for the petitioner is that since respondent No. 1 was admittedly turned out of the house on 6-6-1989 the male child, bom on 28-11-1990, could not have been the petitioner's child. The trial Court has not given any specific finding of fact as to whetehr the second male child to whom respondent No. 1 gave birth on 28-11-1990 was legitimate or illegitimate child of the petitioner. The lower Court, however, awarded maintenance allowance to the child born on 28-11-1990 on the ground that under clause (c) to sub-section (1) of Section 125, Cr. P. C. 'child' includes a legitimate or illegitimate child. The view-taken by the trial Court is erroneous on the face of it. Petitioner was not bound to maintain any or every illegitimate child born to his separated wife. It is only the legitimate child who is shown to have born from the petitoiner was entitled to mainte nance allowance from the petitioner. In this view of the matter, the petition de serves to be allowed so far as grant of maintenance allowance to the male child born on 28-11-1990 is concerned.
(3.) WHILE admitting the petition by or der dated 1-4-1997 it was made clear that so far as first child Raj Kumar is con cerned, there is no illegality in the im pugned order and the petition in respect of the maintenance allowance granted by the Court below to Raj Kumar is dismissed. Therefore, the order of maintenance al lowance granted lo Raj Kumar stands; confirmed by order dated 1-4-1997. As regards the other child said to be born on 28-11-1990, the matter is sent back to the Court below with a direction lo give a specific finding if the second child was born from the petitioner and there after decide the matter afresh in the light of the observatins made above. Court below shall dispose of the matter within six months. Copy of this order shall be made available to the petitioner's Counsel within a week from today on payment of usual charges. Revision allowed .;