Gauhati High Court
Crl.Rev.P./386/2018 on 30 October, 2025
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GAHC010223292018
2025:GAU-AS:14605
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH )
Crl. Rev.P. 386/2018
Md. Jeherul Islam
..............................Petitioner
-VERSUS-
Smti. Amiya Begam & Anr.
.......................Respondent
Advocates for the Petitioner: Mr. N.H. Barbhuiya, Advocate.
Advocates for the respondent: Mr. A. Hussain, res-1 and 2, Advocate
BEFORE
HON'BLE MR. JUSTICE PRANJAL DAS
Date of Hearing: 30.10.2025
Date of Judgment: 30.10.2025
JUDGMENT & ORDER (oral)
Heard Mr. N.H. Barbhuiya, learned counsel for the petitioner as well as Mr.
A. Hussain, learned counsel for the respondent nos.1 and 2.
2. The instant criminal revision petition has been filed by the petitioner
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invoking section 397/401 of Cr.P.C as if existed then (read with Section 482
Cr.P.C.). Aggrieved by the judgment and order dated 06.08.2018 passed by the
learned Principal Judge, Family Court, Barpeta in M.R. 438/2012, whereby, the
maintenance allowance @ Rs.4,000/- per month was directed to be given to
minor son of the respondents and the maintenance was to be paid from the
date of the judgment and order and the respondent no.1, Smti. Amiya Begum
stated to be his minors' mother was allowed to receive the maintenance.
3. The present revision has come in the backdrop of earlier round of litigation
between the parties. The respondent no.1 had filed Maintenance case being
M.R. 438/2012 seeking maintenance and the said proceeding was disposed of
by the learned JMFC, Barpeta vide judgment and order dated 09.09.2013
dismissing the claim of the respondent no.1/1st party. However, criminal revision
has filed against the same by the aggrieved party being Crl. Rev.P. 31/2013 was
allowed by the learned Addl. Sessions Judge, Barpeta, setting aside the
judgment and directed the trial Court to consider the maintenance prayer with
regard to the child.
4. Against the same, the petitioner has preferred a (Crl. Rev.407/2015)
before this Court, which was disposed of with a direction to the Court of the
learned Magistrate to proceed as per the direction passed by the Sessions
Revisional Court i.e. to determine the entitlement of the child. Pursuant thereof,
the present impugned judgment and order dated 06.08.2018 came to be passed
by the learned Family Court allowing the maintenance claim of the child, which
was quantified at Rs.4,000/- per month payable from the date of the order.
5. In the earlier round of litigation, the claim of the respondent no.1 was
negated on the ground of her not being legally married wife, as it emerged that
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she was the second wife of the petitioner. The learned counsel for the petitioner
primarily contends that he is aggrieved by the direction for payment of
maintenance to the child as because he denies being the biological father of the
said child and submits in this regard that as the petitioner is not the father of
the child therefore, he cannot be burdened with the liability of giving
maintenance to the said minor.
6. The learned counsel for the respondent no.1 submits on the other hand
that it is well settled that even if the child is begetted from an invalid marriage,
he is entitled to get maintenance under the provision of Cr.P.C. (now BNSS). It is
submitted by the learned counsel respondent that the petitioner though denied
his paternity over the child has not preferred any civil proceeding for a
declaration or for scientific evidence/test to determine the paternity.
7. In support of his contentions, the learned counsel for the respondent has
submitted the following decisions of this Court.
(i) Girish Ch. Medhi Vs. Kalpana Medhi reported in 2002(1) GLT 295,
(ii) Laxmi Rani Barman Vs. Dilip Kr. Sarkar, reported in 2000 (1) GLT
249,
(iii) Faizar Ali Vs. Musstt. Samina Begum , reported in 2004 (1) GLT
296.
8. The scanned case record from the learned Court below has been received
and the relevant areas are perused.
9. I have perused the reasoning of the learned Family Court in para-9 of the
impugned judgment. It has been held that in the written statement and the
evidence, the petitioner/second party have not prayed for a DNA test of the
child and himself to ascertain that he is not the biological father of the said
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minor, Jahidul Islam.
10. The Family Court have accepted the testimony of the respondent no.1 as
1st party about her relationship with the petitioner and the minor son being
begetted out of that relationship. On such determination, the entitlement of the
minor for maintenance was held in the affirmative and maintenance was
directed to be paid, quantified at Rs.4,000/-per month.
11. In the case of Girish Ch. Medhi (Supra), this Court held in para-5 as
follows:-
"(5.) In the case of He. Rathiram-Vs-Barbora reported in (1971) 4 SCC 923 the Apex Court
had observed that Section 1125, CrPC does not finally determine the status, rights and
obligations of the parties and the decision of the criminal Court does not op-erate as a
decision as in a civil proceeding. In a later case in the case of Md. Farook as reported in AIR
1987 SC 1049, the Apex Court observed that in exercise of power u/s 482, CrPC, the High
Court should sustain the order of maintenance and direct the hus-band to seek declaration in
a civil Court that the child was not born through him and as such he is not legally liable to
maintain it."
12. Thus, when a determination in favour of granting maintenance to a child
in such a situation has been made by the learned Court below - then, in the
absence of any major infirmity therein - the said claim of the entitlement of
maintenance already granted by the learned Court below should be upheld and
if the issue of paternity continues to be disputed, the parties can be relegated to
such a determination before a civil Court.
13. In the instant case also, I am of the considered opinion that a similar
course of action should be followed. In any case, the maintenance amount of
Rs.4,000/- per month in favour of the minor stated to be aged about 13 years
cannot be said to be exorbitant, in an absolute sense, considering the costs of
living at present.
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14. Therefore, the impugned judgment and order dated 06.08.2018 passed by
the learned Principal Judge, Family Court, Barpeta in M.R. 438/2012 is hereby
upheld and confirmed granting maintenance of Rs.4,000/- per month to the
minor child Jahirul Islam and the maintenance amount to be payable from the
date of the petition. The petitioner accordingly, shall clear the arrears
expeditiously. In terms of the aforesaid discussion and the case law referred,
the parties, especially the petitioner, would be at liberty to approach the
appropriate Civil Court for any declaration regarding paternity.
15. The instant Criminal Revision Petition stands disposed of on the aforesaid
terms.
JUDGE
Comparing Assistant
