May 16, 2019:
Chhattisgarh High Court has held that a minor illegitimate daughter is entitled for maintenance even if wife is unable to prove the marriage with the father of the daughter.
A bench of Justice Sanjay K. Agrawal has passed the order in the case titled as Dilip Kumar vs Dilwati @ Raiwati on 30.04.2019.
Respondents No. 1 & 2 in the petition claiming to be the wife and daughter of the petitioner herein filed an application for maintenance under Section 125 of the Code of Criminal Procedure (henceforth “Cr.P.C.”) stating inter alia that they, being the wife & daughter of the petitioner herein, are entitled to maintenance from him, in which, the petitioner has denied the fact of marriage with respondent No. 1 and further stated that respondent No. 2 is not his daughter out of alleged wedlock with respondent No. 1.
The Judicial Magistrate, First Class, Gharghoda, by its order dated 17.01.2014 held that no marriage has taken place between the petitioner and respondent No. 1 and, therefore, respondent No. 1 is not entitled for maintenance; and further held that respondent No. 2 was born out of cohabitation of petitioner with respondent No. 1, therefore, she, being an illegitimate daughter of petitioner, would be entitled for maintenance to the extent of Rs. 800/- per month, and that has been upheld by the revisional court, against which instant petition under Section 482 of the Code of Criminal Procedure has been preferred.
Husband challenged the orders before the High Court and his counsel argued "both the courts below are absolutely unjustified in granting maintenance in favour of respondent No. 2 after having held that no marriage took place between petitioner and respondent No. 1 and, as such, order granting maintenance and the impugned order affirming the order of trial Magistrate deserve to be set aside".
High Court however did not agree and observed as "Reverting to the facts of the present case in light of provisions contained in Section 125(1)(b) of the Cr.P.C. and the principles of law laid down by the Supreme Court in Sumitra Devi (supra),, it is quite vivid that in the instant case, fact of marriage of petitioner and respondent No. 1 is not found proved by both the courts below but both the courts below have held that respondent No. 2 is an illegitimate child of petitioner and respondent No. 1, as such, respondent No. 2 – Minor Munni Bai being an illegitimate child would be entitled for maintenance".
High Court then declined to interefere in the orders of courts below by saying that finding of facts were neither perverse nor contrary to the record and the same is not liable to be interfered with in the jurisdiction under Section 482 of the Code of Criminal Procedure.
Read the Order here:
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