16 Aug 2022 7:45 AM GMT
The Jammu and Kashmir and Ladakh High Court recently ruled that grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 of CrPC but, when the paternity of a child is seriously disputed it would not be prudent for a Magistrate to fasten the liability of maintaining the child without first ascertaining...
The Jammu and Kashmir and Ladakh High Court recently ruled that grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 of CrPC but, when the paternity of a child is seriously disputed it would not be prudent for a Magistrate to fasten the liability of maintaining the child without first ascertaining the veracity of the claims.
The bench comprising Justice Sanjay Dhar was hearing a plea in terms of which the petitioner, a minor through her mother had challenged order passed by the Judicial Magistrate First Class in the proceedings under Section 488 of J&K CrPC (pari materia with Sec 125 CrPC) whereby the Magistrate had deferred the proceedings till the outcome of the civil suit in which question of paternity is in issue.
The petitioner had alleged that in the year 2010, when the respondent was holding the position of Finance Secretary in the Government of Jammu and Kashmir, he developed relationship with mother of the petitioner, converted to Islam and entered into wedlock with mother of the petitioner out of which the petitioner was born on 12.04.2011.
In her application it was also alleged that in the month of October, 2012, the respondent was deputed to Central Government whereafter the respondent left the petitioner and her mother in lurch. It was further alleged that on 01.04.2013, the petitioner along with her mother visited the native place of the respondent at Lucknow where they came to know that the respondent was already a married man having wife and two children.
It was also averred that the petitioner and her mother had filed a suit for declaration and injunction against the respondent, which is pending disposal before the Court of 1st Additional Munsiff, Srinagar. On these grounds, the petitioner also sought monthly maintenance of Rs.30,000/ from the respondent.
Record also revealed that the respondent contested the aforesaid petition by refuting the allegations of having entered into any wedlock with mother of the petitioner and claimed that the mother of the petitioner was only trying to blackmail him and to tarnish his clean image as a distinguished public servant.
The bench noted that the Magistrate, after hearing the parties observed that pendency of two concurrent proceedings in which the issue as to the fact whether the petitioner's mother is legally wedded wife of the respondent, is required to be determined and in the absence of any, prima facie, documentary proof in the civil suit as regards the marriage between petitioner's mother and the respondent, it is appropriate to defer the decision of the maintenance proceedings till the outcome of the civil suit. It was this order which became a subject matter of challenge before the bench by way of the revision petition.
Advocate Abdul Manan Dar for the petitioner challenged the order inter alia on the ground that the petitioner cannot be made to wait for award of maintenance in her favour till the decision of issue of her paternity is rendered by the civil suit, as by doing so she would be deprived of immediate sustenance. Advocate Manan also contended that there is material on record to, prima facie, suggest that there was relationship between the petitioner's mother and the respondent and the respondent has remitted some payments through bank transfers in favour of the petitioner.
Adjudicating upon the matter Justice Dhar observed that material on record suggests that a girl child was born to the petitioner's mother on 12.04.2011 and while one birth certificate shows the name of child as Riza Jan with Mr. Idress Bashir Jabari as her father, whereas the other one shows the name of girl child as Raaisha with name of father as respondent herein.
The birth certificate dated 27.05.2011 has been issued within one and a half month of birth of the child and the particulars contained therein have been recorded in regular course of events based upon spontaneous information furnished within one year, as contemplated in the provisions contained in Section 13(1)(2) of the Registration of Births and Deaths Act, 1969, accordingly in view of provisions contained in S.114(e) of the Evidence Act, there is a presumption of correctness attached to the particulars entered in the said certificate. On the other hand, the birth certificate dated 01.09.2014, on which reliance is being placed by the petitioner, appears to have been issued pursuant to the directions of the Court after more than three years of the event of birth, by taking recourse to the provisions contained in Section 13 (3) of the Registration of Births and Deaths Act, 1969 and therefore, presumption cannot be raised as regards the correctness of contents of the said certificate, unless oral and documentary evidence is led to support the same, the bench underscored.
Discussing the law further on the matter in controversy the bench recorded that there can be no dispute to the proposition that grant of maintenance to a minor child should be the paramount consideration but since the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child without first ascertaining the veracity of claim of the petitioner.
"There is a serious dispute as regards the paternity of the petitioner and the documents on record prima facie suggest that the mother of the petitioner had entered into a wedlock with one Mr. Idrees Bashir and the birth of the petitioner has taken place within two hundred and eighty days of dissolution of marriage between the petitioner's mother and the said person and therefore the presumption of Section 112 of the Evidence Act also gets attracted to the present case", Justice Dhar observed.
In the face of this overwhelming record and unless the petitioner, by leading cogent and convincing evidence it may not be possible for the Magistrate to pass an order of maintenance in her favour and hence the Magistrate has rightly deferred further consideration of the petition till the decision of the issue in the civil suit, concluded the bench while dismissing the petition.
Case Title: Raaisha Vs Syed Sudhanshu Pandey
Citation : 2022 LiveLaw (JKL) 100
Click Here To Read/Download Judgment