M. C. JAIN, J. - (1.) THIS is an application u/sec. 482 Cr. P. C. against the order of the Sessions Judge dated 31st July, 1981 passed in criminal revision No. 134/80 whereby the learned Sessions Judge dismissed the applicant's revision petition in proceedings relating to maintenance.
(2.) THE facts may briefly be stated as under leading to the present application -. The respondent Smt. Shantidevi submitted an application u/sec. 125 Cr. P. C. for maintenance for herself and for her minor daughter Ashakumari. The present applicant did not appear in that application despite service of notice and final expert order was passed on 19. 6. 79 granting maintenance to Shanti Devi and Asha Kumari. Thereafter an application was submitted on 30th November, 1979 by the applicant for cancellation of the order dated 19. 6. 79 mentioning it to be u/sec. 125 sub-sec. 4 and 5 Cr. P. C. It was stated in that application that the applicant had filed proceedings for judicial separation and a decree for judicial separation was passed on 13. 4. 72. It was found in that petition that the parties after marriage never cohabited and the child Asha Kumari is not the child from the applicant. Thereafter a petition for divorce was also submitted by the applicant and a decree of divorce has also been passed by the Court of Civil Judge, Senior Division, Akola on 2nd April, 1979 in Hindu Marriage Case No. 96/1978. Reply to the application u/sec. 125 (4) & (5) Cr. P. C. was submitted by the respondent. The learned Magistrate after hearing the arguments dismissed the application on 15. 7. 80. Dissatisfied with that order, criminal revision petition was filed before the Sessions Judge who by his impugned order dismissed that petition. Hence this application u/sec. 482 Cr. P. C. It may also be stated that the applicant also availed remedies in this Court one by way of revision petition against the expert order dated 19 6. 79 in S. B. revision on 36/80 but that revision petition was dismissed on 18. 7. 80 as not pressed as it was stated that the applicant has already applied before the Magistrate for setting aside the expert order of maintenance. As a matter of fact the application was for cancellation of the order stated to be under sub-sec. 4 and sub-sec. 5 of Sec. 125 Cr. P. C. The petitioner also filed an application u/sec. 482 Cr. P. C. against the order dated 15. 7. 80 in S. B. Cr. Misc. Application No. 128/80 but that application was also dismissed with the observations that the learned counsel for the applicant fairly concedes that the applicant has preferred the revision petition in the Sessions Court, Jodhpur therefore this application u/sec. 482 Cr. P. C. is not maintainable. This Court, therefore, dismissed the application and it was observed that it will not affect the merits of the revision pending before the learned Sessions Judge. Thus, it would appear that the remedies by way of revision against the main order dated 19. 6. 79 and remedy by way of an application u/sec. 482 Cr. P. C. against the order dated 15. 7. 80 would not in any way affect the present application as the matters were not finally heard and decided and it was left to the applicant to get the alternative remedy availed by him, decided. I have heard Shri P. C. Tatia, learned counsel for the applicant and Shri P. N. Mohanani, learned counsel for the respondent. Learned counsel for the applicant submitted that the courts below have seriously erred in rejecting the applicant's application despite the fact that the decree for judicial separation was passed in Hindu Marriage Case No. 67/70 on 13. 4. 72 by the Civil Judge, Senior Division, Akola and thereafter a decree for divorce was also passed on 2. 4. 79 in the divorce petition by that very court in case No. 96/78. In the petition for judicial separation one of the issues was as under:-"does petitioner prove that the respondent has after solemnization of marriage had sexual intercourse with any other person other than the petitioner?"
(3.) IN that petition on the basis of the non-controverted testimony of the petitioner to the effect that the petitioner had no cohabitation with the respondent from the time of the marriage, and the child is not his. Belie ring his testimony a finding was arrived at that the wife had sexual intercourse with any other parson other than her husband. Issue No. 4 was, therefore, decided in the affirmative in favour of the petitioner against the wife and a decree for judicial separation was passed. IN view of the finding arrived at in the petition for judicial separation, the applicant's case is that when the spouses were never cohabited and the child is not his, the applicant is not liable for maintenance to the minor daughter, and the order is liable to be cancelled. Reply to the petition was filed and issues were framed but thereafter it appears that the matter was not contested by Shanti Devi and the evidence went non-controverted. Learned counsel for the petitioner therefore urged that the decisions rendered in the matrimonial cases should have been given due effect by the learned Magistrate. IN an application u/sec. 125 Cr. P. C. on behalf of a child, paternity has to be established and when there is a decree for judicial separation passed on the basis that after solemnization of marriage, the wife had sexual intercourse with some other person other than her husband alleging that there had been no cohabitation between the spouses and the child is not his; then it should have been found by the learned Magistrate that the applicant is not the father of the minor daughter Asha Kumari and as such he is not liable for maintenance. Learned counsel also urged that the decree for judicial separation having become final, the finding arrived at believing the evidence of the petitioner that the petitioner had never cohabitation with the respondent from the time of the marriage and the child is not his, is binding on the criminal court and it was the obligatory duty of the court in these circumstances to have cancelled the order. Learned counsel for the petitioner places reliance on the decision of the Supreme Court in Nand Lal V/s Kanaya Lal (1 ). It has been observed in this case as under:- "under S. 488, so far as it is relevant to the present enquiry, an illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance, if the putative father having sufficient means neglects or refuses to maintain it. It is suggested that unless the child is admitted by the putative father to be his illegitimate child, the magistrate has no power to make an order for payment of maintenance. This argument, if accepted, would make the entire section nugatory. The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by conferring jurisdiction on the magistrate to make an allowance for the maintenance of the child, by necessary implication, confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the court, before making the order, to find definitely, though in a summary manner, the paternity of the child. "' Learned counsel for the respondent, on the other hand, submitted that the applicant had moved an application under sub-sec. 4 & 5 of Sec. 125 Cr. P. C. Unless the applicant proves that the respondent wife is living in adultery the application u/sec. 125 Sub-sec. 4 & 5 Cr. P. C. is liable to be dismissed and the courts below were justified in dismissing the application. In both the sub sections there are three grounds for refusal of maintenance and the only ground which can be attracted is that the wife is living in adultery which is a question of fact. Unless the criminal court arrives at the finding that the wife is living in adultery she cannot be denied maintenance. Sub-sec. 5 only applies in the situation when order had already been passed for maintenance u/sec. 125 (1 ). Learned counsel for the applicant then submitted that the application may be treated u/sec. 127 sub-sec. 2 Cr. P. C. as the necessary facts have already been pleaded by the applicant. What the court has to see is as to what is the effect of the decisions rendered by the competent Civil court in the matrimonial case relating to judicial separation followed by the decree of divorce. ;