Judgment - Section 125 - Maintenance - Child Born After Divorce

Court:Punjab-Haryana High Court

Bench: JUSTICE V.M. Jain

GOPI Vs. SMT. KRISHNA On 27 August 2001

Law Point:
Child Born to Wife Long After Divorce : Child is Illegitimate Child of Wife not Entitled to Maintenance.

JUDGEMENT

This is a petition under Section 482, Cr.P.C., challenging the order dated 10.2.1999, passed by the Judicial Magistrate and also challenging the order dated 17.7.2000, passed by the Additional Sessions Judge, dismissing the revision petition and upholding the order dated 10.2.1999 passed by the learned Magistrate.

2. The facts relevant for the decision of the present petition, are that Smt. Krishna wife of Gopi, Jasbir and Raj Kumar, minor sons of Gopi, filed a petition under Section 125, Cr.P.C., against their husband/father, namely Gopi, for the grant of maintenance to them. The said petition was filed on 19.5.1997. In the petition, it was alleged that the marriage of Smt. Krishna and Gopi had taken place in the year 1989 and that Jasbir and Raj Kumar, minors were born out of the said marriage and that they were aged about 6 years and 4 years respectively. It was alleged that Smt. Krishna and minor children were thrown out by Gopi about two years back and since then, they were residing with the parents of Smt. Krishna. It was alleged that they had no source of livelihood to maintain themselves. On the other hand, it was alleged that Gopi, Peon, in the Cooperative Bank, was earning Rs. 6,000/- p.m. It was accordingly prayed that maintenance of Rs. 1,000/- per month be awarded to each of the claimants, namely Smt. Krishna, Jasbir and Raj Kumar.

3. The said petition was contested by Gopi, by filing reply, alleging therein that so far as Jasbir, minor, is concerned, he was born out of the wedlock, whereas Raj Kumar, minor, was not born out of the wedlock, but was born only after Smt. Krishna had left the matrimonial home and that he was not his child. The other allegations were also denied and it was alleged that Smt. Krishna had left her matrimonial home on 4.6.1990 and that on 12.7.1990, Jasbir, minor, was born. It was alleged that finally Krishna along with Jasbir had left the matrimonial home on 18.4.1991 and came to her parental house. It was alleged that thereupon, Gopi filed a divorce petition in the Courts at Chandigarh on 10.6.1991 and in the divorce petition, decree for divorce was passed on 30.10.1991. It was alleged that since 18.4.1991, Smt. Krishna had not lived with Gopi as his wife. It was alleged that Raj Kumar, minor, was borne to Smt. Krishna as a result of her illicit relations with someone else and that he was the illegitimate child of Smt. Krishna. It was alleged that Smt. Krishna was in a position to earn her livelihood. It was denied that he was earning Rs. 6,000/- per month, though it was admitted that he was working as peon in the Cooperative Bank.

4. After recording evidence, the learned Magistrate, vide order dated 10.2.1999, allowed the maintenance petition under Section 125, Cr.P.C., and awarded Rs. 500/- per month as maintenance to Smt. Krishna, while a sum of Rs. 300/- each was allowed to the other two claimants, namely Jasbir and Raj Kumar, minors, from the date of institution of the petition i.e. 19.5.1997. Aggrieved against this order of the learned Magistrate, Gopi filed a revision petition in the Sessions Court. The learned Additional Sessions Judge, vide order dated 17.7.2000, of his own, enhanced the amount of maintenance of Jasbir and Raj Kumar, minors, from Rs. 300/- to Rs. 500/- per month, from the date of institution of the claim petition and disposal of the revision petition, vide order dated 17.7.2000. Aggrieved against these orders of the Courts below, Gopi filed the present petition under Section 482, Cr.P.C., in this Court.

5. I have heard learned Counsel for the petitioner and gone through the record carefully.

6. Initially, Mr. R.C. Chauhan, Advocate, had put in appearance on behalf of the respondents. He was allowed time to file reply. Neither any reply was filed nor anyone had put in appearance on behalf of the respondents at the time of arguments on 16.7.2001.

7. Learned Counsel for the petitioner submitted before me that no maintenance could be allowed to Raj Kumar, minor, as he was not born out of the loins of Gopi, petitioner. It was submitted that Smt. Krishna had left the matrimonial home on 18.4.1991, whereupon Gopi had filed a divorce petition in the Court of District Judge, Chandigarh, under Section 13 of the Hindu Marriage Act and in the said divorce petition, Smt. Krishna was proceeded against ex-parte and vide ex-parte decree dated 31.10.1991, the marriage between the parties was dissolved by a decree of divorce, on the ground of cruelty, in favour of Gopi and against Smt. Krishna. It was further submitted that the present petition under Section 125, Cr.P.C., was filed by Smt. Krishna and others on 19.5.1997 and at that time, it was alleged, that the age of Jasbir, minor, was six years, while the age of Raj Kumar, minor, was four years. It was alleged that in this manner, it would be clear that Raj Kumar, minor, was not born out of the loins of Gopi, but was born to Smt. Krishna as her illegitimate child. It was submitted that under these circumstances, no maintenance could be allowed to Raj Kumar, minor, under Section 125, Cr.P.C. It was further submitted that since Smt. Krishna was living in adultery, she was also not entitled to any maintenance. It was further submitted that the learned Additional Sessions Judge had gone wrong in allowing the maintenance to Raj Kumar, minor, on the ground that even an illegitimate child was entitled to maintenance. It was submitted that the learned Additional Sessions Judge had failed to consider that Raj Kumar was not the illegitimate child of the present petitioner, Gopi, but was the illegitimate child of Smt. Krishna and as such the present petitioner, Gopi, was not liable to maintain him. It was further submitted that the learned Additional Sessions Judge had committed illegality in enhancing the maintenance from Rs. 300/- per month to Rs. 500/- per month, in respect of the two minors, especially when, no petition for enhancement was filed on their behalf.

8. In the present case, the present petitioner, Gopi had filed a petition under Section 13 of the Hindu Marriage Act against Smt. Krishna, seeking dissolution of marriage by a decree of divorce, on the allegation that one son was born out of the wedlock on 12.7.1990 and that Smt. Krishna had left the matrimonial home on 18.4.1991. Gopi had claimed dissolution of marriage on the ground of cruelty, etc. In the said petition, Smt. Krishna was proceeded against ex-parte and accordingly, ex-parte decree of divorce was passed on 31.10.1991, copy Annexure P2. The petition under Section 125, Cr.P.C. was filed by Smt. Krishna, Jasbir and Raj Kumar, minors, before the learned Magistrate on 19.5.1997. At that time, it was alleged that Jasbir, minor, was aged six years, while Raj Kumar, minor was aged four years. If Raj Kumar was four years, he was born some time in the year 1993. By that time, decree of divorce had already been passed in favour of Gopi and against Smt. Krishna on 31.10.1991. There was no relationship of husband and wife between them after 31.10.1991. On the face of it, the child borne to Smt. Krishna in the year 1993 could not be said to be the child of the present petitioner, Gopi. Under these circumstances, in my opinion, Raj Kumar, minor, born in the year 1993, would not be entitled to claim any maintenance from Gopi, as he was not his child. The learned Additional Sessions Judge erred in holding that even if Raj Kumar, minor, was an illegitimate child, still he was entitled to claim maintenance from the present petitioner. In my opinion, the learned Additional Sessions Judge misunderstood the entire matter. If the divorce was granted on 31.10.1991 and thereafter Smt. Krishna had given birth to a child some time in the year 1993, he could not be termed as the illegitimate child of the present petitioner, Gopi. On the other hand, he would be the illegitimate child of Smt. Krishna. That being so, the present petitioner, Gopi, cannot be asked to maintain Raj Kumar, minor.

9. So far as the maintenance of Smt. Krishna is concerned, she had already been divorced by the petitioner and, as such, she could not be refused the grant of maintenance on the ground that she is living in adultery.

10. As referred to above, the learned Magistrate allowed Rs. 300/- per month as maintenance to each of the two minors. However, the learned Additional Sessions Judge, at his own, had changed the maintenance to Rs. 500/-. In my opinion, this power, exercised by the learned Additional Sessions Judge, was beyond his competence, especially when the minors had not filed any revision petition before him seeking enhancement in the amount of maintenance.

11. In view of the above, the present petition is partly allowed, the orders passed by the Courts below are modified and it is directed that Smt. Krishna would be entitled to the grant of maintenance @ Rs. 500/- per month, while Jasbir, minor, could be entitled to the grant of maintenance @ Rs. 300/- per month, both from the date of filing of the petition under Section 125, Cr.P.C. It is further held that Raj Kumar, minor, would not be entitled to the grant of any maintenance.

Petition partly allowed.

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