Babu Shah @ Bablu Shah vs Shabnam Khatoon Wife Of Babu Shah @ ...
2023 Latest Caselaw 2291 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                       CRIMINAL REVISION No.777 of 2016
                 Arising Out of PS. Case No.- Year-1111 Thana- District-
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Babu Shah @ Bablu Shah Son of Md. Mustaque Shah, Resident of Village- Barki Takia (Rasalpur) P.S.-Chandauti, District- Gaya. ... ... Petitioner/s Versus

1. Shabnam Khatoon Wife of Babu Shah @ Bablu Shah.

2. Abu Hamza Son of Babu Shah @ Bablu Shah, Resident of Village- Barki Takia (Rasalpur), P.S.- Chandauti, District- Gaya presently residing with her father at Maika i.e. Village Barki Takia (Rasalpur) P.S.-Chandauti, District-Gaya.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Syed Alamdar Hussain, Adv.

                          :        Mr. Shashi Bhushan Kumar, Adv.
For the Respondent/s      :        None

====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT Date : 11-05-2023

Heard learned counsel for the petitioner.

It transpires to this Court that vide order dated

25.04.2023 last opportunity was granted to the opposite party

No.1 & 2 to defend their stand in this case but no one appeared,

as such, this Court has no option but to pass order only after

hearing the petitioner.

The present Cr. Revision Application has been filed

for setting aside the order dated 18.04.2016 passed by Principal

Judge, Family Court, Gaya, by which, the application filed by

opposite party was allowed under Section 125 of Cr.P.C. in

Miscellaneous Case No. 29 of 2009 by which it was directed to

the petitioner to Rs.6,000/- and Rs.2,000/- per month to the

opposite party Nos. 1 & 2 respectively as maintenance allowance Patna High Court CR. REV. No.777 of 2016 dt.11-05-2023

from the date of order. It is also directed that the maintenance

allowances shall be payable to the opposite party No.2 till

attaining his age of majority.

Learned counsel for the petitioner submits that a

well contested order has been passed by the Principal Judge,

Family Court, Gaya upon hearing both the parties and their

evidences. He further submits that it is the consistent stand of

petitioner that opposite party No.2 (the alleged child) is not from

the petitioner. He also submits that upon challenge made by the

petitioner, the court has ordered for D.N.A. test for which the

opposite party No.1 was initially ready. He further submits that

petitioner was never came in physical contact with opposite party

No.1, the petitioner is residing in Delhi and opposite party No.2

has never visited to Delhi. Counsel submits that even after the

order passed by the court for D.N.A. test, opposite party No.1

was not ready and refused for the same. He further submits that

Exhibit-E is the report of Forensic Science Laboratory,

Hyderabad from which it will become clear that opposite parties

were not ready for D.N.A. test.

Counsel submits that since upon initial offer that she

is ready for D.N.A. test, thereafter she refused for the same then

in that case an adverse inference ought to be drawn against the

wife/ opposite party No.1 and this is the correct position of law. Patna High Court CR. REV. No.777 of 2016 dt.11-05-2023

When inference shall be drawn meaning thereby opposite party

No.1 is not the wife of petitioner and, therefore, it automatically

proves that opposite party No.1 was in adulterous relation with

someone and hence Section 125(4) of Cr.P.C. debars to the

opposite party No.1 for seeking any maintenance.

Counsel for petitioner, therefore, submits that

neither opposite party No.1 nor opposite party No.2 are entitled

for any maintenance.

Upon going through the records it transpires that

there are certain part of the matter which is admitted from the

pleadings and evidences of petitioner itself before the Principal

Judge, Family Court, firstly that petitioner and opposite party

No.1 are admittedly husband and wife, secondly that petitioner is

residing at Delhi and doing business either by selling readymade

or doing business on thela gadi. It also transpires from the record

that opposite party No.1 has refused for D.N.A. test, therefore,

adverse inference ought to be drawn but this adverse inference

shall be drawn only up to that extent that no benefit should be

granted to opposite party No.1 but inference cannot be drawn up

to that extent that opposite party No.1 is in adulterous relation

with someone because conclusive prove of D.N.A. test is not

present.

It also transpires to this court that the point of Patna High Court CR. REV. No.777 of 2016 dt.11-05-2023

ascertainment of earning is not clear but it is admitted that

petitioner and opposite party No.1 are husband and wife and

under Section 125 of Cr.P.C. wife is entitled for maintenance and,

therefore, this Court is also of the view that wife is entitled for

maintenance from her husband. The present case is of the year

2017 whereas presently 2023 is going on and Rs.6,000/- is a

petty amount and, therefore, this Court is not interfering on this

issue and directs the petitioner that he shall pay Rs.6,000/- per

month to his wife i.e. opposite party No.1 and this Court only

modified in the order that particularly when opposite party No.2

is not ready for D.N.A. test then adverse inference shall be drawn

and on the basis of that adverse inference direction for granting

maintenance of Rs.2,000/- to opposite party No.2 is hereby set-

aside.

With these directions, the present Cr. Revision

Application is hereby partly allowed and partly dismissed.

(Dr. Anshuman, J.) Ritik/-

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