Challenging and impugning the order dated 12.10.2006 passed by the District Munsif cum Judicial Magistrate, Parangipettai, Cuddalore District, in M.C.No.6 of 2005, this criminal revision case is focussed.
2. Compendiously and concisely, the facts which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:-
The respondent herein and the respondent's mother-Sembagadevi filed M.C.No.6 of 2005 under
Section 125 of Cr.P.C. before the District Munsif-cum-Judicial Magistrate, Parangipettai, Cuddalore District, claiming maintenance from the revision petitioner herein. Inasmuch as the revision petitioner resisted the claim, enquiry was conducted.
(b) During enquiry, the mother of the respondent herein examined herself as P.W.1 along with one Thangasamy as P.W.2 and Exs.P1 to P3 were marked. The revision petitioner herein examined himself as R.W.1 along with R.W.2 and R.W.3 and Exs.R1 to R4 were marked.
(c) Ultimately, the claim made by Sembagadevi was dismissed. Whereas, the claim of Sathya-the respondent herein was accepted and the revision petitioner was directed to pay a monthly maintenance of Rs.500/- to Sathya.
3. Being aggrieved by and disconcerted with such awarding of maintenance in favour of Sathya payable by Singaravelu-the revision petitioner, this revision is focussed on various grounds, the gist and kernal of them would run thus:
In the connected criminal case the Court acquitted the revision petitioner, of the charge of rape having been allegedly committed on Sembagadevi and that he was also acquitted of the offence under
Section 417 of IPC. Without any evidence, the learned Magistrate simply assumed and presumed as though the revision petitioner is the father of the minor child-Sathya and awarded the maintenance, warranting interference by this Court.
4. Despite printing the name of the respondent, no one appeared. Heard the learned counsel for the revision petitioner.
5. The learned counsel for the revision petitioner, by inviting the attention of this Court to the various portions of the evidence, would develop her argument that absolutely there is no shard or shred, miniscule or scintilla, molecular or iota of evidence to point out that Sathya is the child of Singaravelu and in such a case, without any rhyme or reason, the Magistrate simply mulcted the revision petitioner-Singaravelu with the liability to pay maintenance in favour of Sathya.
6. The available evidence placed before me would reveal that according to P.W.1-Sembagadevi-the mother of Sathya, the revision petitioner-Singaravelu moved with her closely and in that connection alone, Sathya was born to her.
7. No doubt, the criminal case emerged, at the instance of Sembagadevi, for the offence under Sections 417 and 376 of IPC as against the revision petitioner herein, which ended in acquittal ultimately. In fact, the Assistant Sessions Judge, acquitted the revision petitioner herein of the offences under
Section 376 IPC and convicted for the offence under
Section 417 of IPC. But the appellate Court acquitted the accused even of the offence under
Section 417 IPC.
8. It is the defence of Singaravelu that Sembagadevi was in the habit of moving with several males and more specifically, with her own brother-in-law and also with one Kandan and in that process she might have got conceived and delivered Sathya and for that, Singaravelu cannot be burdened with the task of paying maintenance. To put it pithily and precisely, as per the revision petitioner he has not fathered Sathya and she is not his biological child.
9. No doubt, in view of the latest medical development, if the persons concerned are subjected to DNA test, which is almost a conclusive test, the truth will come out. The question arises as to whether in a summary proceeding like the one under
Section 125 of Cr.P.C., the revision petitioner, namely, Singaravelu, the respondent-Sathya and her mother-Sembagadevi could be subjected to D.N.A. test.
10. I am of the considered opinion that the Honourable Apex Court in catena of decisions held that the proceedings under
Section 125 of Cr.P.C. are summary in nature and after scanning the evidence available, that is both oral and documentary, a decision has to be arrived at, driving the parties to fight out their actual dispute in the regular forum by instituting appropriate proceedings.
11. At this juncture, my mind is reminiscent and redolent of the following decision of the Honourable Apex Court:
(2003) 10 SCC 228 Amarjit Kaur vs. Harbhajan Singh, an excerpt from it would run thus:
8. Section 24 of the Hindu Marriage Act, 1955 empowers the court in any proceeding under the Act, if it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent."
12. What I could understand from the decision of the Honourable Apex Court is that when a hapless minor child is approaching through her mother for some succour, the Court should not drive them to a meandering process of proving paternity etc. I am fully aware of the fact that Tom, Dich or Harry should not be allowed to invoke
Section 125 of Cr.P.C., as against a gentleman who is unconnected with the seeker of maintenance and if permitted so, it would be deleterious to the society. A Magistrate, being a legally trained person is expected to appreciate the oral evidence, which is normally subjected to cross-examination, and also the available documentary evidence, if any, and come to a reasoned conclusion under
Section 125 of Cr.P.C. and the same is always subject to modification in the regular proceedings, if at all anything is required.
13. In this case, the Magistrate considered the evidence of Sembagadevi-P.W.1 and her father D.W.1 and got satisfied that there was connection between Sembagadevi and Singaravelu and due to that Sathya was born. Simply because in the criminal case Singaravelu was acquitted of the offences under
<act id=4LGxPokB_szha0nWDtBn section=417>Sections 417 </act>and
<act id=ObGxPokB_szha0nWLtNN section=376>376 </act>of Cr.P.C., there is no presumption that the claim by Sathya-the minor child for maintenance under
Section 125 of Cr.P.C. should necessarily be dismissed. The ingredients of
<act id=4LGxPokB_szha0nWDtBn section=417>Sections 417 </act>and
<act id=ObGxPokB_szha0nWLtNN section=376>376 </act>IPC are entirely different from the ingredients of
Section 125 of Cr.P.C. Based on preponderance of probabilities, under
Section 125 of Cr.P.C., maintenance could be awarded, as the Honourable Apex Court clearly held that the proceedings under
Section 125 Cr.P.C. should be taken as civil in nature even though in stricto sensu it is quasi criminal. Without dilating on that, I am of the considered opinion that P.W.1, at the relevant time was a young girl of 20 years old and Singaravelu was 23 years old. In such a case, the allegation put on P.W.1 that she was leading a wavered life and she might have got conceived through some other males, appears to be too big a pill to swallow in the summary proceedings under
Section 125 of Cr.P.C.
14. The learned counsel for the revision petitioner also pointed out that Ex.P2-the Birth Certificate cannot be relied on, as it emerged subsequent to the lodging of the complaint by Sembagadevi.
15. Be that as it may, what else Sembagadevi could do when she was constrained to deliver a child, after lodging the complaint. At this juncture, my mind is reminiscent and redolent of the following decisions of the Honourable Apex Court:
(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus:
"13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.
14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under
Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself.
(ii) 2005 Supreme Court Cases (cri) 276 Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus:
"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice."
16. A bare perusal of those decisions would exemplify and demonstrate that the High Court, while exercising its revisional jurisdiction is not expected to interfere with the finding of fact arrived at by both the Courts below simply because one other view is possible or a different view could be taken.
17. Since the Magistrate exercised his discretionary powers in awarding maintenance in favour of the minor child, rejecting the claim of Sembagadevi, based on factual appreciation, I am of the view that interference relating to the finding of fact by the Magistrate is not warranted.
18. Relating to the quantum is concerned, the Magistrate awarded only a moderate sum of Rs.500/- per month. Whereas, the learned counsel for the revision petitioner would submit that as per the version of the revision petitioner as R.W.1, he was earning only a sum of Rs.1000/-per month as an agricultural coolie and that he cannot be mulcted with such heavy liability of paying a sum of Rs.500/- per month in favour of Sathya.
19. Once again I would like to refer to the common or garden principle of law that a father is expected to toil and moil like anything and strain his every nerve to see that he is earning and providing maintenance to his minor child and by pleading that he is having no enough source of income, he cannot wriggle out of his liability. Taking into account the present day cost of living, a child cannot be brought up without even a a sum of Rs.500/-(five hundred only) per month, which is the rock bottom level in awarding maintenance. Hence, I am of the considered opinion that no interference with the order of the lower Court is warranted.
20. Accordingly, the criminal revision case is dismissed. Consequently, consequently connected miscellaneous petition is dismissed.
17.7.2009 msk To The District Munsif cum Judicial Magistrate, Parangipettai, Cuddalore District G.RAJASURIA,J.
msk Crl.R.C.No.1388 of 2006 17.7.2009