Debiprasad Sengupta, J. - (1.)In the present revisional application the petitioner has challenged an order dated 10.5.2002 passed by the learned Additional Sessions Judge, 2nd Court, Suri, Birbhum in Criminal Motion No. 116/2001 thereby setting aside the judgment and order dated 5.9.2001 passed by the learned Chief Judicial Magistrate, Suri, Birbhum in Misc. Case No. 48/1998 under Section 125 of the Code of Criminal Procedure.
(2.)One Smt. Shila Ankure filed an application under Section 125 of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Suri, Birbhum claiming maintenance of Rs. 1,500/- for herself and Rs. 1,000/- for her minor son. The present petitioner/husband entered appearance and contested the said proceeding of filing a reply to show cause denying all the allegations made in the application under Section 125 of the Criminal Procedure Code in the said proceedings under Section 125, Cr.P.C. The present petitioner/husband made an application before the learned Magistrate praying for holding D.N.A. test to determine the paternity of the child. The learned Magistrate by his order dated 5.9.2001 directed such D.N.A. test to be held to determine the paternity of the child. Challenging such order a revisional application was preferred by the wife before the learned Sessions Judge and the learned Additional Sessions Judge, 2nd Court, Birbhum by the impugned order allowed such revisional application and set aside the order dated 5.9.2001 passed by the Chief Judicial Magistrate, Suri as aforesaid. The petitioner has come up before this Court in revision challenging the order passed by the learned Additional Sessions Judge.
(3.)It is the contention of the learned Advocate of the petitioner that the impugned order suffers from serious illegality inasmuch as unless the paternity of the child is determined by D.N.A. test the petitioner/husband will be seriously prejudiced. The learned Advocate submits that if the paternity of the child is determined then he would not be liable to pay any maintenance for the wife as also for the said child. In support of his contention the learned Advocate relies upon a judgment of the Hon'ble Supreme Court reported in Smt. Kamti Devi and Anr. v. Poshi Ram. From a reading of the said judgment it appears that the husband filed a Civil suit for a decree declaring that he is not the father of the child as he had no access to the appellant Kamti Devi during the period when the child would have been begotten. The Trial Court on the basis of admitted facts that the parties are spouses of a valid and subsisting marriage, relied on the conclusive presumption mentioned in Section 112 of the Evidence Act. The Trial Court held that the husband failed to prove that he has no access to his wife Kamti Devi during the relevant period. Accordingly, the suit was dismissed. But the first Appellate Court after re-evaluating the entire evidence found that the husband succeeded in discharging the burden for rebutting the presumption by proving that he had no access to the mother of the child during a very long stretch of time covering the relevant period. On such finding the first Appellate Court allowed the appeal and decreed the suit declaring, that the plaintiff is not the father of the child. The High Court refused to interfere with the aforesaid finding in the second appeal on the premise that "the question whether Roshan Lal is the son of the plaintiff is a pure question of fact which calls for no interference by the Court in the second appeal under Section 100 of the Code of Criminal Procedure." Challenging such order an appeal was preferred before the Hon'ble Supreme Court and it was held by the Hon'ble Supreme Court that the conclusion was reached on the strength of the evidence adduced by both sides and the first Appellate Court was satisfied in a full measure that the plaintiff husband had no liberty whatsoever to have liaison with the defendant mother. The finding thus reached by the first Appellate Court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such finding. The appeal was accordingly dismissed.
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