. On 21.8.2012, she was taken by her husband/Opposite
Party No. 2 to Mumbai where he was working in Indian Navy
having monthly Salary of Rs. 35,000/-. After birth of the
son/petitioner No. 2, the Opposite Party No. 2/husband started
harassing her in different ways. He used to even abuse and beat
her. The Opposite Party No. 2 also developed illicit relationship
with one lady. He subjected the petitioner No. 1/wife to beating
on several occasions and ultimately on 19.01.2013, she along
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
with her son was ousted from the matrimonial home. Thereafter,
she went back to her Maikey. Subsequently, one panchayati was
held at the house of Opposite Party No. 2 and there was a
settlement between both parties. As per settlement, the petitioner
No. 1 along with her son again started living with her husband,
home by the Opposite Party No. 2/husband and since then she is
4. It is also stated that the petitioners have no means
income of Rs. 2,00,000/- from the cultivation. The Opposite
Party No. 2 has also market place in Lucknow getting monthly
rent or Rs. 25,000/-. The petitioners have claimed for 20,000/-
per month for their maintenance from O.P. No. 2.
5. On notice, the Opposite Party No. 2 appeared and
that the petitioner No. 1/wife was already pregnant prior to the
pregnancy from him at the time of her marriage with him and
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
petitioner No. 2 is born out of that pregnancy and hence, he is
not his legitimate son. After the birth of petitioner No. 2, DNA
test was conducted which confirmed that he is not his son. It is
also claimed that his wife/petitioner No. 1 is still living in
6. He has admitted that he is doing service in Indian
of Rs. 35,000/- and claims that his take home salary is only
bank loan. He has also claimed that his wife is a beautician and
runs a beauty parlour having monthly income of Rs. 25,000/-.
7. He has also stated that he has filed one matrimonial
8. During trial following witnesses have been
(ii) P.W.-2 - Pawan Kumar Gupta, who is
also brother of Petitioner No. 1.
herself.
(iv) P.W.-4 - Dilip Kumar Gupta is also
brother of Petitioner No. 1.
9. Opposite Party No. 2 examined the following
witnesses in his defence:-
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
(i) O.P.W.-1 - Rajendra Gupta who is brother
of Opposite Party No. 2 herein.
(ii) O.P.W.-2 - Chhote Lal Gupta, Opposite
Party No.2 himself.
(iii) O.P.W.-3 - Chhote Lal Gupta, Opposite
Party No. 2 himself has been again examined.
10. He has also exhibited the following two
documents:
(i) Ext. A - DNA Test Report
(ii) Ext. A/1 - Hospital Discharge Slip
Finding and order of the Family Court
11. As per the evidence and relevant materials on
record, learned Court below, i.e. Family Court came to the
finding that the petitioner no. 1 Suman Devi @ Suman Gupta is
the legally wedded wife of O.P. No. 2/Chote Lal Gupta.
However, she was having adulterous life since prior to the
marriage and O.P. No. 2 is not the biological father of petitioner
no. 2/Ansh Kumar and hence, both the petitioners were denied
maintenance from O.P. No.2.
Evidence of the Petitioners
12. Both the petitioners herein were applicants before
the Family Court for maintenance from O.P. No. 2/Chote Lal
Gupta.
13. Petitioner No. 1/Suman Devi @ Suman Gupta
has been examined herself as P.W.-3. In her examination-in-
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
chief, she has supported her case reiterating her statements as
made in her petition. In her cross-examination, she has deposed
that one divorce petition has been filed by her husband, which is
pending in the Court of Gopalganj. She has further deposed that
her son Ansh Kumar was born on 16.11.2012 in a Navy
hospital. She is not aware whether DNA test of her son was
conducted and she is ready for DNA test of her child. She has
denied the suggestion that she has illicit relationship with
another person.
14. P.W.-1, Pradeep Kumar, is brother of the
petitioner no. 1/Suman Devi. In his examination-in-chief, he
has also supported the case of his sister/petitioner. In his cross-
examination, he has deposed that there was no dispute between
his sister/petitioner and his brother-in-law/O.P. No. 2 till the
birth of the son of the petitioner. He is also not aware whether
any DNA test of son of the petitioner has been conducted. Her
sister-petitioner lived in sasural only for two months and
thereafter, she was ousted from the matrimonial home.
15. P.W.-2, Pawan Kumar Gupta, is also brother of
Suman Devi. In his examination-in-chief, he has also supported
the case of his sister-petitioner. In his cross-examination, he
has deposed that his sister Suman Gupta is a housewife and she
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
is not a beautician.
16. P.W.-4, Dilip Kumar Gupta, is also brother of
Suman Devi. In his examination-in-chief, he has also supported
the case of his sister. In his cross-examination, he has deposed
that his sister is inter pass and she has not taken up any training
regarding sewing. He has further deposed that till the birth of
the child, there was no dispute between his sister and brother-in-
law. He has further deposed that no DNA test has been
conducted on petitioner no. 2/Ansh Kumar.
17. However, she has not adduced any documentary
evidence.
Evidence of O.P. No. 2/Chote Lal Gupta
18. Chote Lal Gupta was opposite party before the
Family Court and maintenance petition was filed by his wife
and son against him. He has examined himself as O.PW.-2. He
has admitted that he is married with petitioner no. 1/Suman
Devi and after the marriage, his wife/Suman Devi has joined his
matrimonial home. On 16.11.2012, the son/Ansh Kumar was
born to his wife. He got DNA test conducted on the child and as
per the report, he is not the biological father of petitioner no.
2/Ansh Kumar. He called Pradeep Kumar, brother of his wife,
and said about the report and thereafter, Pradeep Kumar claimed
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
that the report is false and he has got it by giving bribe and fresh
DNA test would be conducted through the Court which he
admitted. Thereafter, Suman Devi came to his house and started
living there and he went to his place of posting. He has filed a
divorce petition in Bombay against his wife and thereafter, the
divorce petition has been transferred to the Court of Gopalganj.
Thereafter, on 22.08.2013, Suman Devi went back to her maike,
leaving his matrimonial home. On 09.11.2014, Suman Devi
again came to his house and since then, she has been living at
his house along with her son. She is also working in a private
school getting Rs. 2,000/- per month. The expenditure on her
food etc. is being borne by his mother and brother/Pradeep
Kumar. In his cross-examination, he has deposed that he gets
total Rs. 11,000/- salary. Again, he has deposed that he is getting
Rs. 13,000 to Rs. 14,000/- per month towards his salary. He has
also deposed that one child is born to his wife after 250 days
after the marriage and she is living at his house and hence, there
is no question of giving any maintenance amount to her. He gets
salary through bank account. He has 30 katthas landed property
and pakka house where his wife is living. He has denied the
suggestion that he has illicit relationship with miss of his sister-
in-law, namely, Pramila Gupta and since then he used to beat his
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
wife and she has been ousted his wife from his matrimonial
home.
19. O.P.W.-1, Rajendra Gupta, is brother of O.P.
No. 2. In his examination-in-chief, he has supported the case of
his brother. In his cross-examination, he has deposed that
Suman Devi is teaching in school, but he has admitted that he
has not seen any document in this regard. He has denied the
suggestion that Suman Gupta is living at her maike.
20. One DNA Test Report and Hospital Discharge slip
have also been exhibited by the Court below which are Ext.-A
and Ext.-A/1 respectively, on the request of opposite party vide
order dated 27.09.2016. These documents have been exhibited
not on account of admission of the petitioners. Not even
objection was invited from the petitioners. These documents are
also not tendered through any witness.
21. I further find that application of opposite party has
been rejected by the Family Court for DNA test of Ansh Kumar
vide order dated 5.9.2016 on the ground that opposite party had
given contradictory statements before the Court and this
rejection order is not challenged by O.P. No. 2. Hence, it
attained finality.
22. I heard learned counsel for the petitioners, learned
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
APP for the State, learned counsel for the O.P. No.2 and learned
Amicus Curiae.
23. Learned counsel for the petitioners submits that
learned Court below has not properly appreciated the evidence
on record and erroneously dismissed the maintenance petition
filed by the petitioners, who are wife and legitimate child of the
O.P. No.2.
24. He further submits that the petitioner No.1/wife
was not having any pregnancy prior to her marriage with O.P.
No. 2., nor has she been living in adultery and hence she is
entitled to maintenance from her husband under Section 125
Cr.PC. Learned Court below has committed error of law by
holding that she is living in adultery and she is not entitled to
get maintenance.
25. He further submits that even petitioner No. 2/son
is born out of the wedlock between the petitioner-wife and
opposite party/husband during the subsistence of the marriage
and hence, he is legitimate son of the petitioner-wife and
opposite party/husband. There is no evidence on record to prove
that petitioner No. 2 is not son of O.P. No. 2. DNA report and
the hospital discharge slip are not legal evidence.
26. He further submits that the petitioner No. 1/wife
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
was married with O.P. No. 2 on 06.03.2012 and petitioner No.
2/son was born on 16.11.2012 during the subsistence of the
marriage and the marriage is still subsisting. Hence, he is
legitimate son of O.P. No. 2 and entitled to get maintenance
under Section 125 Cr.PC from his father.
27. Per contra, learned APP for the State and learned
counsel for the O.P. No.2/husband submit that there is no
illegality or infirmity in the impugned order, whereby the
maintenance has been denied to both the petitioners.
28. To substantiate his claim, leaned counsel for the
O.P. No. 2 submits that the petitioner No. 1/wife is found to be
living in adultery and petitioner No. 2 is found not to be the son
of O.P. No. 2, as per the DNA report. He further submits that
after the petitioner No. 1/wife has joined the opposite party in
his matrimonial home on 08.03.2012, whereas she gave birth to
petitioner No. 2 on 16.11.2012, i.e. after 252 days, whereas the
gestation period of the born child as per the discharge slip was
278 days, which clearly shows that the child was conceived 26
days prior to the marriage. It implies that the petitioner No.
1/wife was carrying pregnancy prior to the marriage with
someone else and this previous pregnancy has been concealed
from him.
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
29. Hence, the opposite party has also filed one
Matrimonial Suit for annulment of his marriage with petitioner
No. 1 and same has been also allowed, though appeal against
annulment of the marriage is pending consideration of this
Court.
30. He also refers to and relies upon Nandlal
Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Anr. as
reported in (2014) 1 S.C.R. 120.
31. Learned Amicus Curiae submits that a legally
wedded wife who is living separately from her husband with
reasonable cause, but not living in adultery, is entitled to get
maintenance from her husband, if he has no means to sustain
herself. He also submits that a child born to the wife is
legitimate son of her husband and he is also entitled to get
maintenance from the husband of his mother during his minority
having no means of income. He also submits that in case of
negative finding regarding validity of marriage or paternity of
the child, Revisional Court is empowered to re-appreciate the
evidence and substitute the finding by its own.
32. I considered the submissions advanced by the
parties and perused the materials on record.
33. I find that undisputedly petitioner No. 1/Suman
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
Devi @ Suman Gupta was married with O.P. No. 2/Chote Lal
Gupta on 06.03.2012 and she joined the matrimonial home of
her husband on 08.03.2012 and she gave birth to the petitioner
No. 2/son on 16.11.2012 at Navy Hospital during the
subsistence of the marriage between the petitioner No. 1 and
O.P. No. 2. It is also not a case of the husband/O.P. No. 2 that he
had "no access" to his wife/petitioner No. 1 subsequent to their
marriage.
34. I further find that learned Family Court has denied
the maintenance to the petitioner-wife on the ground that she
was having adulterous life since prior to the marriage.
Maintenance to petitioner No. 2 was also denied by learned
Family Court finding that O.P. No. 2 is not his biological father.
35. However, in view of rival submissions of the
parties, it would be pertinent to refer to Section 125 Cr.PC,
which deals with order for maintenance of wife, children and
parents. It reads as follows:
"125. Order for maintenance of wives, children
and parents.- (1) If any person having sufficient means
neglects or refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where such
child is, by reason of any physical or mental abnormality
or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
herself,
a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such
child, father or mother, at such monthly rate, as such
Magistrate thinks fit, and to pay the same to such person
as the Magistrate may from time to time direct :
Provided that the Magistrate may order the father of a
minor female child referred to in clause (b) to make such
allowance, until she attains her majority, if the Magistrate
is satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means.
Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance
for the maintenance under this sub-section, order such
person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person
as the Magistrate may from time to time direct:
Provided also that an application for the monthly
allowance for the interim maintenance and expenses of
proceeding under the second proviso shall, as far as
possible, be disposed of within sixty days from the date of
the service of notice of the application to such person.]
Explanation. - For the purposes of this Chapter, -
(a) "minor" means a person who, under the provisions
of the Indian Majority Act, 1875 (9 of 1875) is deemed
not to have attained his majority,
(b) "wife" includes a woman who has been divorced
by, or has obtained a divorce from, her husband and has
not re-married.
(2) Any such allowance for the maintenance or
interim maintenance and expenses for proceeding shall be
payable from the date of the order, or, if so ordered, from
the date of the application for maintenance or interim
maintenance and expenses of proceeding, as the case may
be.
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate may,
for every breach of the order, issue a warrant for levying
the amount due in the manner provided for levying fines,
and may sentence such person, for the whole or any part
of each month's allowance for the maintenance or the
interim maintenance and expenses of proceeding, as the
case may be, remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to
one month or until payment if sooner made:
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
Provided that no warrant shall be issued for the
recovery of any amount due under this section unless
application be made to the Court to levy such amount
within a period of one year from the date on which it
became due:
Provided further that if such person offers to maintain
his wife on condition of her living with him, and she
refuses to live with him, such Magistrate may consider
any grounds of refusal stated by her, and may make an
order under this section notwithstanding such offer, if he
is satisfied that there is just ground for so doing.
Explanation. - If a husband has contracted marriage
with another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal to live
with him.
(4) No wife shall be entitled to receive an [allowance
for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be, from her
husband under this section if she is living in adultery, or if,
without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual
consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in adultery, or
that without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order."
(Emphasis supplied)
36. As such, a legally wedded wife is entitled to get
maintenance from her husband, if she is living separately from
her husband with sufficient reason, but not living in adultery,
and she has no means to maintain herself and the husband,
despite having sufficient means, neglects or refuses to maintain
her.
37. In the case on hand, I find that as per claim of the
husband/O.P. No. 2, his petitioner/wife had illicit relationship
with someone else prior to the marriage and due to such illicit
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
relationship, she was pregnant and due to previous pregnancy,
she gave birth to the petitioner No. 2 during subsistence of the
marriage. It is also alleged that even after the marriage, the
petitioner/wife is living in adultery. On the basis of such
pleading and evidence on record learned Family Court came to
to the finding that the wife/petitioner was indulged in adulterous
life with some one else prior to the marriage. Learned court
below has not found that the petitioner/wife was living in
adultery after marriage.
38. Here, it would be pertinent to mention that
adultery is an offence against one's spouse. If a married person
establishes sexual relationship with someone other than his/her
spouse, he/she commits adultery. Under Section 125 Cr.PC
wife/petitioner is disqualified for getting maintenance from her
husband if she is living in adultery. Here, first and foremost
requirement for "living in adultery" is that the lady should be
married with him. Hence, physical relationship of any
unmarried lady with someone else prior to her marriage is
beyond the reach of the disqualification as provided under
Section 125 Cr.PC on the basis of "living in adultery".
39. Moreover, "living in adultery" is distinct from
"committing adultery". "Living in adultery" denotes a
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
continuous course of conduct and not isolated acts of
immorality. One or two lapses from virtues would be acts of
adultery but would be quite insufficient to show that the woman
was "living in adultery". A mere lapse, whether it is one or two,
and a return back to a normal life can not be said to be living in
adultery. If the lapse is continued and followed up by a further
adulterous life, the woman can be said to be "living in adultery".
In this regard, one may refer to the following judicial
precedents:
(i) Hitesh Deka Vs. Jinu Deka
2025 SCC OnLine Gau 259
(ii)Sukhdev Pakharwal Vs. Rekha Okhale
2018 SCC OnLine MP 1687
(iii) Ashok Vs. Anita
2011 SCC OnLine MP 2249
(iv) Sandha Vs. Narayanan
1999 SCC OnLine Ker 64
(v) Pandurang Barku Nathe Vs. Leela
Pandurang Nathe & Anr.
1997 SCC OnLine Bom 264
40. But in the case at hand, I find that the husband has
only made one line bald allegation that even after the marriage,
his wife is living in adultery. But no details thereof with
reference to time, place and adulterer are given in his pleadings.
Even evidence has not been adduced by O.P. No. 2 to prove that
his wife/petitioner No. 1 is living in adultery. Hence, I find that
finding of learned Family Court that she was living in adultery
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
is erroneous in the eye of law.
41. I further find that learned Family Court on the
basis of Ext. A (DNA Report) and Ext. A/1 (Hospital Discharge
Slip) had come to the conclusion that O.P. No. 2 is not the father
of petitioner No. 2/Ansh Kumar and hence, petitioner No. 2 is
not the legitimate son of O.P. No. 2 and therefore, he is not
entitled to get maintenance from him.
42. From the perusal of the lower Court record, I find
that Ext. A (DNA Report) and Ext. A/1 (Hospital Discharge
Slip) have been exhibited by learned Family Court only on the
request of learned counsel for the opposite party. At the time of
the Exhibition of these two documents, even objection was not
invited from the petitioners. I further find that none of the
witnesses of O.P. No. 2 including O.P. No. 2 has proved these
documents. They have not even deposed that they identify these
documents which were issued by such and such authorities, let
alone deposing about when and how the documents were
created and who were authors of these documents. No author of
these documents or any one acquainted the authors and contents
of these documents was examined by O.P. No. 2 to prove these
documents. Here, it would be pertinent to mention that any
document may be brought on record during trial either by way
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
of admission by the other party or through a witness. But neither
of the modes has been adopted by O.P. No. 2 to bring these
documents on record by way of exhibiting. Consequently, the
petitioners did not get any opportunity to object to the
exhibition of the documents on record, or to cross-examine
regarding the veracity and the contents of the documents.
43. I also find as per the evidence that the petitioner-
wife and her witnesses are not aware of any DNA report or
hospital discharge slip.
44. Hence, I find that the DNA report (Ext. A) and
hospital discharge slip (Ext. A/1) could not be considered as
legal evidence. They have to be excluded from the consideration
of this Court while adjudicating the dispute between the parties.
45. After exclusion of Ext. A and Ext. A/1, i.e., DNA
report and hospital discharge slip respectively, there is no
evidence to prove that the petitioner No. 2 was conceived by
petitioner No. 1 prior to her marriage with O.P. No. 2 with
someone else. Undisputedly, petitioner No. 1 was married with
petitioner No. 2 on 06.03.2012 and she joined her husband in his
matrimonial home on 08.03.2012 and gave birth to petitioner
No. 2 on 16.11.2012 when the marriage was subsisting. It is not
a case of the O.P. No. 2 that he had "no access" to his wife
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
subsequent to their marriage. As per Section 112 of the
Evidence Act, the fact that a person is born during continuance
of a valid marriage between his mother and any man, it shall be
conclusive proof that he is the legitimate son of that man.
46. Moreover, birth of a child within 255 days
(6.3.2012 to 16.11.2012) is not unnatural or impossible. Pre-
mature birth of a child is an usual phenomenon.
47. Hence, I find that petitioners No. 2 is legitimate
son of O.P. No. 2 and he is entitled to maintenance from his
father/O.P. No. 2.
48. It is also relevant to point out that vide order dated
05.09.2016, the application of O.P. No. 2 for direction to
conduct DNA test of petitioner No. 2/Ansh Kumar was rejected
by learned Family Court on the ground of contradictory
statements of O.P. No. 2 and that order has not been challenged
and hence, it attains finality. As such, even reliance of O.P. No.
2 on Nandlal Wasudeo Badwaik (supra) is of no help to him.
49. There is also nothing on record to show that the
marriage between the petitioner No. 1 and O.P. No. 2 is
annulled, except the evidence that O.P. No. 2/husband has filed
one Matrimonial Suit under Section 12 of the Hindu Marriage
Act for annulment of his marriage with petitioner No. 1, which
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
is pending consideration of the Family Court, Gopalganj.
50. It is also settled principle of law that proceeding
under Section 125 Cr.PC is summary in nature and meant to
prevent the vagrancy and destitution of wife and children and
provide a speedy remedy in the supply of food, clothing and
shelter to them. Hence, strict standard of proof is not required in
proceeding under Section 125 Cr.PC unlike matrimonial
proceedings, where strict proof of marriage or paternity is
essential. Here, judicial precedent of Kamala v. M.R. Mohan
Kumar, (2019) 11 SCC 491, may be referred to and relevant
para of the judgment of Hon'ble Supreme Court reads as
follows:
"15. Unlike matrimonial proceedings where strict proof of
marriage is essential, in the proceedings under Section 125
CrPC, such strict standard of proof is not necessary as it is
summary in nature meant to prevent vagrancy. This Court
has held that when the parties live together as husband and
wife, there is a presumption that they are legally married
couple for claim of maintenance of wife under Section
125 CrPC. Applying the well-settled principles, in the
case in hand, Appellant 1 and the respondent were living
together as husband and wife and had also begotten two
children. Appellant 1 being the wife of the respondent, she
and the children, Appellants 2 and 3 would be entitled to
maintenance under Section 125 CrPC."
(Emphasis supplied)
51. It is also settled principle of law that in revisional
jurisdiction, the High Court has no power to reassess evidence
and substitute its own finding in regard to positive finding
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
regarding validity of the marriage or paternity of the child,
unless there is patent perversity of finding of the fact or error of
jurisdiction or that of law. But in case of negative finding of
Court in regard to validity of marriage or paternity of child, the
High Court is required even in revisional jurisdiction to re-
evaluate the evidence and come to a conclusion whether the
findings or conclusions reached by the Family Court are legally
sustainable or not, because on account of negative finding, the
child is bastardized and wife is branded as unchaste woman.
52. Here, judicial precedent of Pravati Rani Sahoo
Vs. Bishnupada Sahoo, (2002) 10 SCC 510, may be referred to
and relevant para of the judgment reads as follows:
"5. ............................... Section 125 CrPC is intended
to curtail destitution and also to ameliorate orphancy. The
High Courts should be slow to interfere with a positive
finding in favour of marriage and paternity of a child.
Hence in such instances this Court has pointed out that
High Courts shall not interfere with such fact findings.
But that principle cannot be imported in the present case
where a child happened to be bastardised as a
consequence of the order passed by the Magistrate and the
claimant was in effect found to be a woman of unvirtuous
morality. In such a situation the High Court should have
entertained revision and re-evaluated the evidence and
come to a conclusion whether the findings or conclusions
reached by the Magistrate are legally sustainable or not.
While maintaining the difference in the overall approach
between an appeal and a revision, the jurisdiction of the
court has to be exercised by the High Court in revision.
6. The impugned order summarily dismissing the
application for revision shows that the jurisdiction has not
even been invoked by the High Court. The impugned
order cannot therefore be sustained. Consequently, we set
aside the order and remit the revision back to the High
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
Court for disposal of it afresh in accordance with law."
(Emphasis supplied)
53. It is also settled principle of law that the validity
of marriage or paternity of a child in a proceeding under Section
125 Cr.PC is tentative and not final, and it is always subject to
order of any Civil Court or Family court, which are the
Competent Courts to conclusively decide any marital status of a
party or legitimacy or illegitimacy of a child, as emerges from
Section 7, 8 and 20 of the Family Courts Act, 1984. In other
words, if the Civil Court or the Family Court passes any decree
in regard to the validity of the marriage or paternity of the child
not in consonance with the finding of this Court in this
proceeding under Section 125 Cr.PC, the decree of the Civil
Court/Family Court would prevail and the party concerned
would be at liberty to modify the order passed under Section
125 Cr.PC, by moving application under Section 127 Cr.PC,
which provides for alteration or modification of the order in
changed circumstances. Here, one may refer to the following
judicial precedents:-
(i) Ivan Rathinam Vs. Milan Joseph
AIRONLINE 2025 SC 57
(ii) Balram Yadav Vs. Fulmaniya Yadav
(2016) 13 SCC 308
(iii) Dwarika P. Satpathy Vs. Bidyut Prava Dixit
(1999) 7 SCC 675
(iv) Santosh Vs. Naresh Pal,
(1998) 8 SCC 447
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
54. Hence, I find that the impugned order dated
22.06.2019, passed by learned Principal Judge, Family Court,
Gopalganj, in Maintenance Case No. 156 of 2013, is not
sustainable in the eye of law. Both the petitioners are entitled to
get maintenance from the O.P. No. 2.
55. I further find that the petitioner-wife is living at
her parent's house along with her minor son, who is petitioner
No. 2., because they have been ousted by the O.P. No. 2 from
his matrimonial home. One criminal complaint for offence
punishable under Section 498A is also lodged by the petitioner-
wife against O.P. No. 2 which is pending consideration of the
Court.
56. I further find that the petitioners have no source of
income, whereas O.P. No. 2 is a government employee in Indian
Navy and as per the claim of the petitioners, his monthly salary
is Rs. 35,000/-, whereas O.P. No. 2 states that his monthly salary
is only Rs. 13,000/- to Rs. 14,000/- after deductions. But he has
not filed his salary slip on the record in support of his claim.
57. In view of such facts and circumstances, O.P. No.
2 is liable to pay Rs. 3,000/- per month to his wife/petitioner
No. 1 and Rs. 3,000/- per month to his minor son/ the petitioner
No. 2 towards their maintenance, since the date of filing of the
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
petition, i.e. 12.08.2013.
58. Hence, the impugned order is set aside and O.P.
No. 2 is directed to pay monthly maintenance to his wife and
minor son who are petitioners herein @ Rs.3,000/- per month
each from 12.8.2013 i.e. the date of filing of the maintenance
petition before the Family Court. O.P. No. 2 is also directed to
pay a lump sum of Rs.50,000/- to the petitioners towards their
litigation cost.
59. The present petition stands allowed, accordingly.
60. Before I part with the case, it would be pertinent
to clarify that the finding of this Court in proceeding under
Section 125 Cr.PC, regarding the marriage and paternity is
tentative and subject to order of any Civil Court or Family
Court. If the Family Court passes any decree which is not in
consonance with the findings of this Court in this proceeding,
the parties concerned are at liberty to file appropriate
application before the Family Court under Section 127 Cr.PC
which provides for alteration or modification of the order passed
under Section 125 Cr.PC, under changed circumstances.
61. The assistance provided by learned Amicus Curiae
is highly appreciated. Secretary, Patna Legal Services
Committee is directed to pay Rs.10,000/- to learned Amicus
Patna High Court CR. REV. No.1080 of 2019 dt.18-03-2025
Curiae towards Honorarium. Office is directed to send a copy of
this order to learned Amicus Curiae for his information and
needful.
62. LCR be sent back to the court below without any
delay.
63. Any interlocutory application, if pending, stands
disposed of.
64. Learned Registrar General is directed to circulate
a copy of this judgment/order amongst all the Family Courts of
Bihar, and also send a copy of it to Bihar Judicial Academy to
be discussed in the training programme for the Presiding
Officers of the Family Courts.
(Jitendra Kumar, J)
S.Ali/shoaib
AFR/NAFR AFR
CAV DATE 06.02.2025
Uploading Date 18.03.2025
Transmission Date 18.03.2025
