SHARMA, J. - (1.) ORDER granting maintenance to petitioner wife and her minor child, was set aside by the Revisional Court on the ground that she was living in adultery and respondent husband was not the father of her minor child. In the instant revision petition the petitioner-wife seeks to quash the said order of Revisional Court.
(2.) CONTEXTUAL facts depict that the petitioner-wife moved an application under Section 125 Cr. P. C. against the respondent- husband with the averments that she got married with respondent according to Hindu rites. The respondent kept the petitioner with him for about one year and when she was having pregnancy of seven months she was turned out by the respondent. The petitioner gave birth to Kishan Gopal, who on the date of filing application was of three years of age. The respondent kept another woman as his de-facto wife and refused to maintain the petitioner who is unable to maintain herself. Therefore, she filed the application claiming maintenance for herself and child Kishan Gopal. The respondent contested the application. The fact of marriage was admitted but it was pleaded that the marriage was not consummated and Kishan Gopal was not his son. The respondent levelled allegation of adultery against the petitioner. As many as four witnesses were produced by the petitioner whereas the respondent examined two witnesses. Learned Additional Civil Judge (Jr. Dn.) & Judicial Magistrate Bundi vide order date November 10, 1995 allowed the application and granted maintenance to the tune of Rs. 400/- per month to petitioner and Rs. 400/- per month to minor child Kishan Gopal. The said finding of learned Magistrate was set aside by learned Additional Sessions Judge Bundi vide order dated November 19, 1996. It is contended on behalf of the petitioner that in view of Section 125 (1) (b) Cr. P. C. the respondent is duty bound to maintain the petitioner and his child. According to this provision the father has to maintain his legitimate or illegitimate minor child. Reliance is placed on Mst. Sharbati vs. Ram Chandra and Anr. (1), and Surjeet Kaur vs. Hardam Singh Per contra, it is canvassed on behalf of the respondent that from the material on record it is established that petitioner was living in adultery and Kishan Gopal was not the son of respondent. Reliance is placed on Smt. Ahalya Bariha @ Barihani vs. Chhelia Padhan (3), Harikishan vs. Smt. Shantidevi (4), Annu Bala vs. Dharam Pal (5), and Darje Wangial vs. Karam Singh Their Lordships of Supreme Court in Jagir Kaur vs. Jaswant Singh (7), indicated that while deciding the case of entitlement of a child, paternity and not legitimacy has to be seen. Where maintenance is claimed for an illegitimate child from alleged father, it is not enough that the defendant would have been the father, but the court has to find out that in all reasonability no one else could have been the father. The object of Section 125 Cr. P. C. is provide a summary remedy to save dependents from destitution and vagrancy and this is to serve a social purpose, apart from and independent of the obligations of the parties under their personal law. the right of the child legitimate or illegitimate under the code is an individual right of the child in his or on her own right, independent of the mother. Claiming of maintenance on behalf of a minor child out of wedlock against his alleged putative father, the onus is on mother to show that the child could only have been born through the alleged father under the circumstances of an exclusive relationship. In such a case the woman being a highly interested person, the Court has a duty to see that her statement gets independent corroboration, direct or circumstantial, that the claimant could have conceived the child when she and the alleged father had access to each other.
(3.) IN the peculiar facts and circumstances of the case where the parties are illiterate and it is difficult to find definitely the paternity of child Kishan Gopal, I am of the opinion that result of Deoxyribonuclic acid test (DNA test) by itself can be taken as conclusive in deciding paternity. IN Nand Lal Misra vs. Kanhaiya Lal Misra It was propounded that it is the duty of the court before making the order under Section 125 Cr. P. C. to find definitely though in a summary manner the paternity of the child. Both the courts below did not appreciate the evidence in the right perspective and I have no option but to set aside both the orders of courts below. For these reasons, I dispose of the instant revision petition in the following terms:- (i) Orders dated November 19, 1996 and November 10, 1995 respectively passed by Additional Sessions Judge Bundi and Additional Civil Judge (Jr. Dn.) & Judicial Magistrate Bundi are set aside and the case is remitted to the court of Additional Civil Judge (Jr. Dn.) & Judicial Magistrate Bundi to decide the application under Sec. 125 Cr. P. C. afresh after providing the opportunity of hearing to the parties. (ii) In order to reach at the conclusion about the paternity, child Kishan Gopal and respondent Latoor Lal may be subjected to DNA test. Steps for arranging DNA test may be taken expeditiously by the learned Magistrate. (iii) Both the parties are directed to appear before the learned Additional Civil Judge (Jr. Dn.) & Judicial Magistrate Bundi on April 20, 2004 for seeking further instructions. (iv) The Deputy Registrar (Judicial) is directed to send the record back to the court of Additional Civil Judge (Jr. Dn.) & Judicial Magistrate Bundi forthwith. . ;