Biswajeet Halder v. Kumari Jia Halder

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: HON'BLE JUSTICE RAVI KRISHAN KAPUR CRR 17 of 2021 Biswajeet Halder

Versus

Kumari Jia Halder For the petitioner : Mr. D.C. Kabir Mr. S. Ajith Prasad Mr. Mazhar Hossain Chowdhury For the respondent : Mr. Sudarsan Biswas Reserved on : 30.06.2022 Judgment on : 08.09.2022 RAVI KRISHAN KAPUR, J.

1. The petitioner assails an order and judgment dated 9 April, 2021 passed by the Learned Judge, Family Court, Port-Blair in Misc. Case no.15 of 2019 (the impugned order).

2. By the impugned order, passed in an application filed under section 125 of the Code of Criminal Procedure, 1973 (the Code), the Trial Court had disposed of an application for maintenance inter alia directing the petitioner to pay his minor daughter Rs.9000/- per month as maintenance.

3. It is contended on behalf of the petitioner that in passing the impugned order, the Trial Court erred in not dismissing the claim for maintenance on

the ground that the minor child was an illegitimate child and the petitioner was not obliged to pay any maintenance towards her. Hence, the presumption under section 112 of the Evidence Act, 1872 (the Act) had been rebutted. In support of this contention, the petitioner relies on the fact that the parties had filed an affidavit in a proceeding under Section 13B of the Hindu Marriage Act, 1955 inter alia alleging that they had been living separately since 15 January, 2015. Thus, as on the date of birth of the minor child i.e 11 May, 2017, it is alleged that the parties had been living separately for more than two years prior thereto and the petitioner had no access to the respondent. Thus, there was no occasion for the minor child to have been begotten by him. In fact, it is alleged that the petitioner was not even aware of the existence of his child.

4. On behalf of the respondent, it is contended that the aspect of illegitimacy of the minor child had been elaborately dealt with by the Trial Court in the impugned order. After considering all the evidence, the Trial Court has arrived at a finding that there is no case of illegitimacy which the petitioner had been able to prove. Hence, there is no scope for this Court to interfere in its revisional jurisdiction.

5. I have considered the submissions made on behalf of the parties.

6. It is well settled that in exercising this jurisdiction, the Court does not reassess nor re-evaluate evidence nor substitute its own finding with that of the Trial Court.

7. Section 112 of the Evidence Act, 1872 provides as follows: Birth during marriage, conclusive proof of legitimacy.-The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

8. The law presumes strongly in favour of legitimacy, as it is birth which determines the status of an individual. Section 112 of the Act, embodies a presumption based on public policy. The presumption is rebuttable but only on very strong and clear evidence. The presumption of legitimacy is this that a child born of a married woman is deemed to be legitimate. Thus, the burden of proving illegitimacy is wholly on the person who is interested in making out a case of illegitimacy. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. The evidence of non-access for the purpose of rebutting the presumption under Section 112 of the Act must be strong, distinct, satisfactory and conclusive (Goutam Kundu vs. State of West Bengal in AIR 1993 SC 2295 at para 16).

9. In my view, the entire question of illegitimacy had been sufficiently and adequately dealt with by the Trial Court. The respondent had adduced evidence by way of a birth certificate. The petitioner had chosen not to raise any objection in respect thereof. The petitioner also voluntarily chose not to submit to a serological test. No evidence had also been adduced by the petitioner to controvert any of the documents relied on by the respondent

before the Trial Court. The alleged case of non access by the petitioner was not even attempted to be proved by the petitioner before the Trial Court. Non access has to be proved like any other physical fact and may be established both by direct and circumstantial evidence of an unassailable character. In my view, the pleadings in the application under Section 13B of the Hindu Marriage Act, 1955 do not per se prove the fact of non-access. This is a material fact which was required to be proved by the petitioner. This burden of proof has not been discharged by the petitioner before the Trial Court. In Dukhtar Jahan vs. Mohammed Faro reported in (1987) 1 SCC 624 at para 12 it has been held that: "Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which would have the effect of branding a child as a bastard and its mother an unchaste woman."

10. Thus, in my view, there is no illegality nor jurisdictional error nor perversity in the impugned order which warrants any interference by this Court.

11. On the aspect of the maintenance also, I find there is no scope for any reduction in the quantum of maintenance directed by the Trial Court. Keeping in view, the fact that the respondent wife earns a sum of Rs.10,000/- and the income of the petitioner, I do not find any reason to interfere with the discretion of the Trial Court in fixing maintenance at Rs.9,000/- per month.

12. Accordingly, I find no reason to confirm the ad interim order dated 17th November, 2021 reducing the quantum of maintenance from Rs.9,000/- to

Rs.6,000/-. Consequently, the petitioner is directed to pay the differential amount i.e (Rs.9,000 - Rs.6,000 = Rs. 3000) from the date of the ad - interim order i.e 17th November, 2021 till date in 6 (six) equal monthly installments. The first of such payments shall commence from November, 2002. However, there shall be no order as to costs.

13. With the aforesaid directions, CRR 17 of 2021 stands dismissed. Interim orders, if any, stand vacated.

(Ravi Krishan Kapur, J.)