1. This Criminal Revision Application has been filed by a tribal lady, who had knocked the door of the court of learned Magistrate claiming maintenance for her minor child in the background of the fact that under the false hope and promises given by the respondent no. 2 of marrying her and she consented to live with him which resulted into giving birth to a child, named Jai Singh on 24.6.1997.
2. Learned Magistrate passed order granting of maintenance of Rs. 500/- per month in favour of the child. This order of learned Magistrate was challenged by respondent no. 2 in the court of learned 2nd Additional District Judge, Vyara district, Surat by preferring Criminal Revision Application No. 3 of 2006. The application was allowed by learned Judge on the ground that the petitioner has not established that respondent no. 2 is father of illegitimate minor child, Jai Singh and therefore, respondent no. 2 is not liable to pay maintenance to the such child. This is the order which is under challenge by the petitioner.
3. Shri S.A. Qureshi, learned counsel for the petitioner has submitted that there was ample evidence led before learned Magistrate to prove that there was live-in relationship between the petitioner and the respondent No.2. He further submitted that the petitioner a tribal woman, was cheated by respondent No. 2 by giving promise of marrying with her. The respondent no. 2 is a teacher by profession. The petitioner continued her relationship with respondent no. 2 as she was in fact the wife of the respondent no. 2 and because of such continued relationship and living together as wife and husband in the eyes of the society, ultimately she gave birth to a child, named Jai Singh. Shri Qureshi further submitted that when the birth of child took place, name of the respondent no. 2 was entered as father of the child in the certificate issued by the Gram Panchayat. It is submitted that the learned Magistrate has not committed any error in relying on such certificate and in coming to the conclusion that the child was born out of the relationship between petitioner and respondent no. 2. He also submitted that it may be that there was no legal marriage between the petitioner and respondent no. 2 but it can not change the fact that the child was born out of the relationship between the petitioner and respondent no. 2 and in fact there was no serious dispute about the above said facts in the Court of learned Magistrate and, therefore, as per his submission, the learned Additional Sessions Judge ought to have interfered with the order passed by the learned Magistrate.
4. As against the above said arguments advanced by learned advocate for the petitioner, learned advocate Shri R.K. Shah for respondent No.2 submitted that since there was no sufficient evidence led before the learned Magistrate to establish the fact that the child was born out of the relationship between the petitioner and the respondent no.2. Learned Additional Sessions Judge has not committed any error in setting aside the order passed by the learned Magistrate. He submitted that the birth certificate was not a conclusive proof to establish that child Jai Singh was born out of the relationship between the petitioner and the respondent no. 2. In fact no importance could have been attached to a simple certificate issued by the Gram Panchayat so as to come the conclusion that the child was born out of the relationship between the petitioner and the respondent no. 2. He submitted that since there was no other evidence produced before the learned Magistrate as regards the respondent being father of child Jai Singh, the learned Magistrate had committed grave error in awarding maintenance for minor child Jai Singh.
5. Learned Advocate Shri Shah has relied upon a decision of Hon'ble Supreme Court in the case of Savitaben Somabhai Bhatiya vs. State of Gujarat and others 2005(2) GLR 1378 to point out that live-in relationship cannot be recognized and only legally wedded wife is entitled to maintenance.
6. Learned Advocate Shri Qureshi for the petitioner has relied on judgment of Hon'ble Supreme court in the case of Madan Mohan Singh & Others vs. Rajni Kant and Others reported in AIR 2010 SC 2933 and laid emphasis on the observations made in the paragraph 16 of the said judgment which is reproduced below :-
"16. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases."
On the basis of this judgment, he pointed out that the entries made in the official record by the officers or the persons authorized in performance of official duties can be relied on.
7. Having heard learned counsel for the parties, I am of the opinion that learned Additional Sessions Judge has committed grave error in interfering with the order passed by the learned Magistrate in favour of minor Jai Singh.
8. It is required to be noted that the respondent No. 2 is a teacher by profession and so far as the petitioner is concerned, she comes from a very poor strasta of society and she belongs to Scheduled Tribes community. In the Court of learned Magistrate, she had entered into the witness box and given her evidence and proved certificate at Exh.18 to establish that the birth of child Jai Singh was out of her relationship with respondent No. 2.
9. She also produced love letters exchanged between her and the respondent No. 2 in the court of learned Magistrate. In view of above evidence, which was available with learned Magistrate, in my opinion, the learned Magistrate has rightly come to the conclusion that child Jai Singh was born out of the relationship between the petitioner and respondent no. 2. It was a finding of fact recorded by learned Magistrate on the basis of evidence adduced before him and the learned Additional Sessions Judge while exercising the revisional power under Section 397 of the Code of Criminal Procedure could not have interfered with such finding of fact recorded by the learned Magistrate. Even apart from this, the Hon'ble Supreme Court in the case of Savitaben (supra) has held that a lady fails to establish her legal marriage is not entitled to maintenance but a child born out of live-in relationship is entitled to maintenance.
10. At this stage, Shri Qureshi, learned counsel for the petitioner has cited the judgment of the Hon'ble Supreme Court in the case of Chanmuniya versus Virendra Kumar Singh Kushwaha and another (2011) 1 SCC, 141. From the said decision, observations made in paragraph 42 are required be re-produced as below :
"42. We are of the opinion that a broad and expansive interpretation should be given to the term "wife" to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual."
11. With change of scenario of the society as regards relationship between a woman and a man and considering the ground reality in the society, the Hon'ble Supreme Court referred three questions stated in paragraph 41 of the said judgment reproduced as under :
"41. We, therefore, request the Hon'ble Chief Justice to refer the following, amongst other, questions to be decided by a larger bench. According to us, the questions are:
Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 CrPC?
Whether strict proof of marriage is essential for a claim of maintenance under Section 125 CrPC having regard to the provisions of the domestic Violence Act, 2005?
Whether a marriage performed according to the customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 CrPC?
12. From the evidence discussed by learned Magistrate, there is no reason to doubt that the petitioner has successfully proved her relationship with respondent No.2. It may be that there was no legal marriage between the petitioner and the respondent No.2 but because of live-in relationship between the petitioner and the respondent No.2, if child Jai Singh was born, which is prima facie proved from the certificate produced at Exh. 18, this Court is of the opinion that learned Additional Sessions Judge was not justified in interfering with the order passed by the learned Magistrate while exercising revisional powers.
13. In view of the above, the order passed by the learned Additional Sessions Judge is required to be quashed and set aside. Accordingly, judgment and order passed by learned Additional Sessions Judge in Criminal Revision Application No. 3 of 2006 dated 22.1.2007 is hereby quashed and set aside and order passed by learned Magistrate dated 14.2.2006 in Maintenance Application No. 203 of 1997 is hereby restored. Respondent No.2 is directed to pay the amount of maintenance to the petitioner on the basis of the order passed by learned Magistrate and clear the arrears of maintenance within two months from today.
14. Present Criminal Revision Application is allowed. Rule is made absolute.
[C.L. SONI,J] FH.
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