Holding

Section 125 CrPC proceedings are summary and the High Court cannot quash a maintenance order based on concurrent findings; the maintenance order must be restored.

Issues considered

Whether proceedings under Section 125 CrPC are of a summary nature and can be interfered with by a High Court exercising power under Section 482 CrPC.
Whether the High Court can quash a maintenance order based on the presumption of illegitimacy derived from the child’s birth occurring within seven months of marriage.
Application of Section 112 of the Indian Evidence Act to determine the legitimacy of a child born during the continuance of a marriage.

Legislation cited

Code of Criminal Procedure, 1973s. 125, s. 482
Indian Evidence Act, 1872s. 112

Subjects

Section 125 CrPCmaintenancelegitimacy of childSection 112 Evidence ActSection 482 CrPChigh court interferencesummary proceedingspaternity

Judgment

DUKHTARJAHAN
A v.
MOHAMMED FAROOQ

JANUARY 20, 1987

B [A.P. SEN AND S. NATARAJAN, JJ.]

A Code of Criminal Procedure, 1973, section 125, nature of pro-
ceedings under.

B. High Court's jurisdiction under section 482 of the Code of

C
Criminal Procedure-Whether could interfere with the concurrent find-
ings of the courts below granting maintenance to the child/wife.
)
C. Evidence Act, section 112-Rule of law under section 112 as to
the legitimacy or otherwise of the child-Whether the factors that the
child was born within seven months' time from the date .of the marriage
D and that the illiterate mother had deposed the child was not born prema-
turely lead to the inference of suppression of the factum of the mother
being enceinte at the time of marriage.

The appeUant and the respondent, who were already related as
first cousins being the !&sues of two sisters, were married on 11.5.1973.
E The marriage lasted only for 17 months, since the respondent divorced
the appeUant on 16.10.1974. When the parties were in wedlock, the
appeUant delivered a female child on 5.12.1973. After the Respondent
effected the divorce in October, 1974, the appeUant filed a Petition
under section 125 Criminal Procedure Code in the Court oftbe Special
Judicial Magistrate No. 1, Rampur for grant of maintenance of Rs.SO
F p.m. to the child.

The respondent refuted bis liability to provide maintenance to the
child on the ground that be was not the father of the child and that the
child had been conceived even before marriage and the appeUant had
suppressed the fact or her being enceinte al the time or the marriage.
G
The Trial Magistrate after taking into consideration the evidence
adduced in the case and the conduct of the parties held that since the
child had been born when the parents were in wedlock and since the
respondent had not discarded the wife or disowned the child forthwith
but had waited for about 10 months to divorce the appeUant, it would be
H reasonable to hold that the child should han been conceived to the

1086
DUKHTAR JAHAN v. MOHAMMED FAROOQ 1087

respondent and as such he is by law obligated to provide maintenance to A
the child. He accordingly awarded maintenance to the child Rs.30 p.m.
as against the claim ofRs.50 p.m.

A Revision Petition preferred against the order of the Magistrate
to the Sessions Judge, Rampur proved of no avail and.hence the res)!On-
dent filed Criminal Misc. Petition No. 1816of1978 to the High Court or B
Calcutta under section 482 Cr. P.C. for quashing the order or mainte-
nance. A Single Judge of the High Court allowed the petition and
quashed the order of maintenance in favour of the child, by taldng the
view that since the child had been born in about 7 months' time from
the date of marriage and since the child was not claimed to be prema-
turely born it has to be necessarily held that the appellant should have
.conceived even before she married the respondent and consequently the
c
respondent cannot be held to be the father of the child and called upon
to pay maintenance to it. However the High Court granted a certificate
under Article 134 (l)(c) read with Article 134A of the Constitution to
the appellant to prefer an appeal for consideration of a question of law
formulated as "Whether, in an application under Section 482 Cr. P.C. D
the High Court can interfere with concurrent findings rendered by the
courts below."

Allowing the appeal, the Court,

HELD I.I Proceedings under section 125 of the Code of Crimi- E
nal Procedure are of a summary nature and are intended to enable
destitute wives and children, the latter whe.ther they are legitimate or
illegitimate, to get maintenance in a speedy manner. In the instant case;
the order of the High Court of Calcutta quashing the order of mainte•
nance in favour of the child by setting aside the concurrent findings

r rendered by the Courts below is not in order. [1094E-F]

1.2 The proper course for the High Court, even if entitled to
interfere with the concurrent findings of the courts below in exercise of
its powers under Section 482 Cr. P. C., should have been to sustain the
order of maintenance and direct the respondent to seek an appropriate
F

declaration in the Civil Court, after a full-fledged trial, that the child was G
not born to him and as such he is not legally liable to maintainit. [1094i>-E]

1.3 The facts of the case and the conduct of the parties and the
attendant circumstances reveal a preponderance of materials to support
the case of the appellant rather.than that of the respondent. [1093E]
1088 SUPREME COURT REPORTS [1987] 1 S.C.R.

A If the appellant was pregnant even at the time of the marriage she )..
could not have concealed that fact for long and in any event the respon-
dent would have come to know of it within two or three months of the
marriage and thereupon be would have immediately protested and
either discarded the appellant or reported the matter to the village
elders and relatives and sought for a divorce. On the contrary the
13 respondent had'continued 'to' lead.life with the appellant in a normal
" j.<ri.\....,,..,.._,_,. __ ,..,,.,·.-- ,'"··.,,.,. __ ._,....,
manner till the birth of the child. Even the confinement appears to have
taken place in his house as otherwise the child's birth would not have
been registered in bis village. The respondent had not disowned the
child Immediately after its birth or sent away the appellant to her
parents' house. Such would not have been his conduct if he had any
C doubt about the paternity of the child. Moreover, there is an entry in the
birth register (Exhibit Klu>-1) setting out the respondent as the father
of the child. Though the respondent has attempted to neutralise the
entry In Exhibit Klu>-1 by examining D. W.2 and making it appear that
the entry had been made on the basis of the information given by a third
party, the lower courts have refused to give credence to the vague and
D uncorroborated testimony of D.W.2. Further, the respondent had
allowed eleven months to pass before effecting a divorce. By his inaction
for such a long period the respondent has given room for inference that
the divorce may have been effected for other reasons and not on account
of the appellant giving birth to a child conceived through someone else.
Lastly, even if the child had been born after a fuU-term pregnancy it has
E to be home in mind that the possibility .of the respondent having had
access to the appellant before marriage cannot be ruled out because
they were closely related and would therefore have been moving on
close terms. All these factors negate the plea of the respondent that the
minor child was not fathered by him. Giving birth to a viable child after
28 weeks' duration of pregnancy, according to medical science is not
F biologically an improbable or impossible event. [1093F-H; 1094A-D]

2. Section 112 of the Indian Evidence Act lays down that if a
person was horn during the continuance of a valid marriage between bis
mother and any man or within two hundred and eighty days after its
dissolution and the mother remains unmarried, it shall be taken as
Ci conclusive proof that he is the legitimate son of that man, unless it can
be shown that the parties to the marriage had no access to each other at
any time when be could have been begotten. This rule of law based on
the dictates of justice has always made the courts incline towards up-
holding the legittmacy of a child unless the facts are so compulsive and
clinching as to necessarily warrant a finding that the child could not at
II all have been begotten to the father and as such a legittmation of the
DUKHTAR JAHAN v. MOHAMMED FAROOQ [NATARAJAN, J.J 1089

... child would result in rank injustice to the father. Courts have always
desisted from lightly or hastily rendering a verdict and that too, on the
A
basis of slender materials, which will have the effect of branding a child
as a bastard and its mother an unchaste woman. [10920-F]

Mahbu6 Ali v. Taj Khan, AIR 1915 Labore 77(2); Kahan Singh v.
·+ Natha Singh, AIR 1925 Labore 414; Sibt Mohamed v. Md. Maneed,
AIR 1926 Allahabad 589 and Ponnama/v. Addi Aivan, AIR 1953 TRA-
B

CO 434 (Vol. 40, C.N. 169), approved.

- 1- CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 13 of 1981

From the Judgment and Order dated 26.3.1979 of the Allahabad
c
r High Court in Cr!. Misc. Petition No. 1816 of 1976

Altaf Ahmad for the Appellant (not present).
V. A. Bobde (Amicus Curiae) for the Respondent. D
The Judgment of the Court was delivered by

NATARAJAN, J. This is an unfortunate case where the High
Court has quashed an order of maintenance passed in favour of a
~ minor child Tarana Farooq by the Special Judicial Magistrate No. 1,
Rampur under Section 125 Cr.P.C., in exercise of its powers under E
.Section 482 Cr. P.C. The High Court has, however, deemed it fit to
grant a certificate to the appellant Dukhtar Jahan, the mother of the
- minor child, under Article 134(1)(c) read with Article 134A of the
'
Constitution to prefer an appeal to this Court for consideration of a

y question oflaw formulated as under:-
F
.... "Whether, in an application under Section 482 Cr.P.C. the
High Court can interfere with concurrent findings rendered
by the courts below."

As we find the appeal is capable of being disposed of on the basis
of other materials, we do not feel called upon to answer the question of G
law formulated for consideration by the High Court.
~
We may now have a look at the facts of the case. The appellant
Dukhtar Jahan and the respondent Mohammed Farooq who were
already related as first cousins, being. th.e issues of two sisters, were
married on 11.5.1973. The marriage lasted only for about 17 months H
1090 SUPREME COURT REPORTS [1987] 1 S.C.R.

A since the respondent divorced the appellant on 16.10.1974. However, ....
when the parties were in wedlock the appellant delivered a female
child named Tarana Farooq on 5. 12.1973. After the respondent
effected the divorce in October 1974, the appellant filed a petition
under Section 125 Cr.P.C. in the court of the Special Judicial Magis-
trate No. l, Rampur for grant of maintenance to her and the child at
ll Rs.150 p.m. and Rs.50 p.m. respectively. The appellant however gave ·~
up the claim of maintenance for herself as the stand of the respondent
was that he had paid her the Maher and the amount payable for the
Iddat period and that he had also returned all the articles given by way
of dowry. The enquiry in the petition was therefore, confined to the )... •
claim of maintenance for the child Tarana.
c
The respondent refuted his liability to provide maintenance to 1
the child on the ground that he was not the father of the child and that
the child had been conceived even before marriage and the appellant
had suppressed the fact of her being enceinte at the time of the
marriage.
D
While the appellant examined herself and another witness to
substantiate the claim for maintenance for the child, the respondent
examined three witnesses besides himself to refute the claim. Of those
three witnesses, two have spoken about the payment of Maher etc. to
the appellant and hence we need mention only about the testimony of
E D.W.2 Abdul Asad. This witness was a Panchayat Sevak and he has
deposed that he made entries in the birth register (Exhibit Kha-I)
about the birth of the girl child Tarana Farooq to the respondent and
the appellant on the basis of information given to him by the Village
chowkidar by name Kalicharan. Obviously this witness .has been
-
examined to show that the respondent was not the informant of the
F birth of the child in order to neutralise the effect of the entry in the
birth register.

The Trial Magistrate, after taking into consideration the
evidence adduced in the case and the conduct of the parties held that
since the child had been born when the parents were in wedlock and
G since the respondent had not discarded the wife or disowned the child
forthwith but had waited for about 10 months to divorce the appellant,
it would be reasonable to hold that the child should have been con- ~
ceived to the respondent and as such he is by law obligated to provide
maintenance to the child. After taking into consideration the respon-
dent's income the learned Magistrate awarded maintenance to the
H child at Rs.30 per month as against the claim of Rs.50 p.m.
DUKHTAR JAHAN v. MOHAMMED FAROOQ INATARAJAN, J.l 1091

)l A Revision preferred against the order of the MagiStrate to the
Sessions Judge, Rampur proved of no avail and hence the respondent A
filed Criminal Misc. Petition No. 1816 of 1978 to the High Court of
Calcutta under Section 482 Cr .P .C. for quashing the order of mainte-
nance. A Single Judge of the High Court has allowed the petition and
quashed the order of maintenance in favour of the child. The learned
+ Judge has taken the view that since the child had been born in about 7 B
months' time from the date of marriage and since the child was not I
claimed to be prematurely born it has to be necessarily held that the
appellant should have conceived even before she married the respon-
... A. dent and consequently the respondent cannot be held to be the father
of the child and called upon to pay maintenance to it.

As the order of the High court.appeared to be prima facie unsus- c
~ tainable and as the respondent failed to enter appearance in spite of
notice being served on him, we requested Mr. Bobde to appear as
amicus curiae for the respondent, and we are thankful to him for his
assistance.
D
The admitted facts are that the appellant and the respondent
were close relations and not strangers before marriage. They were
married on 11.5.1973 and the girl child was born on 5.12.1973. The
respondent did not divorce the appellant immediately after the child
).. birth or even two or three months later but he divorced her only on
16.10.1974. The child birth took place in the house of the respondent E
himself and hence there is no question of the birth of the child not
being known to the respondent immediately .
.....
In spite of all these factors the High Court has allowed itself to
be influenced by only two factors viz. the child birth taking place in

I --+
about 7 months' time from the date of marriage and the child being
claimed to be a full-grown one at the time of birth.
F

Examining the matter, we feel the learned Judge has failed to
view the case in its entire conspectus and this has led to miscarriage of
justice. On the sole ground that the child had been born in about 7
months' time after the marriage it cannot be concluded that the child G
should have been conceived even before the respondent had consum-
mated the marriage. Giving birth to a viable child after 28 weeks'
duration of pregnancy is not biologically an improbable.or impossible
event. In "Combined Textbook of Obstetrics and Gynaecology" by Sir
Gugald Baird 7th Edition at page 162 it is reported as under:-
H
1092 SUPREME COURT REPORTS [1987] 1 S.C.R.

"In the case of Clark v. Clark (1939) an extwnely small
A
baby, born alive 174 days after last possible date when
intercourse with the husband could have taken place, and
which survived, was held to be lagitimate. While it is most
unusual for babies of this weight for gestation period to
survive it does occasionally happen."
B
, The learned Judge ought not, therefore, to have rushed to the conclu-
sion that a child born in about 7 months' time after the marriage of the
parents should have necessarily been conceived even before the mar-
riage took place. In so far as the second aspect is concerned viz. about
the appellant's statement that the child was not born prematurely, t]je
A
High Court has failed to bear in mind that the appellant is a rustic and
c illiterate woman and as such her opinion could suffer from error of .....
judgment.

Another serious infirmity noticed in the judgment is that the
learned Judge has completely lost sight of Section 112 of the Indian
D Evidence Act. Section 112 lays down that if a person was born during
the continuance of a valid marriage between his mother and any man
or within two hundred and eighty days after its dissolution and the
mother 'remains unmarried, it shall be taken as conclusive proof that
he is the legitimate son of that man, unless it can be shown that the
parties to the marriage had no access to each other at any time when he
E could have been begotton. This rule of law based on the dictates of
justice has always made the courts incline towards upholding the legiti-
macy of a child unless the facts are so compulsive and clinching as to
necessarily warrant a finding that the child could not at all have been -
F
begotten to the father and as such a legitimation. of the child would
result in rank in justice to the father. Courts have always desisted from
lightly or hastily rendering a verdict and that too, on the basis of
slender materials, which will have the effect of branding a child as a
bastard and its mother an unchaste woman.
r·
To drive home the point, we may refer to some of the reported
cases where the courts have applied the rule of evidence contained in
G Section 112 of the Indian Evidence Act and declared the legitimacy of
a child born during wedlock, even though the child had been born
prematurely. In Mahbub Ali v. Taj Khan,, A.LR. 1915 Lahore 77 (2)
it was held that a boy born about 7 months' after his father and mother
were lawfully married and who had opportunity or access to each other
at the tirr:e he could have been begotten, must be held to be the
H legitimate son of his parents. In Kahan Singh v. Natha Singh, A.LR.

•
I
DUKHTAR JAHAN v. MOHAMMED FAROOQ [NATARAJAN, J.) 1093

A 1925 Lahore 414 the defendant's father was married to the defendant's
A
mother on 2nd August 1889 and the defendant was born on 23rd
January 1890. Even so it was held "that the defendant being born
during the continuance of the marriage between his parents, he is his
father's legitimate son unless it is shown that his parents had no access
to each other at any time when he could have been begotten and that it
. is immaterial how soon after the marriage the defendant was born." In
Sibt Mohammad v. Md. Hameed, A.LR. 1926 Allahabad 589 it was
B

held that a Muhammedan child born during the continuance of a valid

-
marriage between its parents but within 6 months of the date of its
parents' marriage must be held to be a legitimate child by reason of
~ Section 112 of the Evidence Act. In Ponnammal v. Addi Aiyan, A.LR.
1953 TRA-CO 434 [Vol. 40, C.N. 169] the paternity of a child born to
a married woman after 8 months' from the date of marriage was dis- c
)"- puted as the husband alleged that he was incapacitated from having
sexual intercourse. for one month from date of marriage due to some
operation he had to undergo and hence the child was not his. The court
held that even assuming that the husband was so incapacitated, the
time available, viz, over seven months, was sufficient to raise the D
presumption that he was the father of the child.

Even without reference to Section 112 of the Indian Evidence
Act if we take into consideration the facts of the case and the conduct
~ of the parties and the attendant circumstances we find a preponder-
ance of materials to support the case of the appellant rather than that E
of the respondent.

The relevant features which have escaped the attention of the
High Court can be catalogued as under:- ·

If the appellant was pregnant even at the time of the marriage F
she could not have concealed that fact for long and in any event the
respondent would have come to know of it-within two or three months
of the marriage and thereupon he would have immediately protested
and either discarded the appellant or reported the matter to the village
elders and relatives and sought for a divorce. On the contrary the
tespondent had continued to lead life with the appellant in a normal G
manner till the birth of the child. Even the confinement appears to
have taken place in his house as otherwise the child's birth would not
have been registered in his village. The respondent had not disowned
the child immediately after its birth or sent away the appellant to her
parents' house. Such would not have been his conduct if he had any
doubt about the paternity of the child. Moreover, there is an entry in H
1094 SUPREME COURT REPORTS [1987) l S.C.R.
'
A the birth register (Exhibit Kha- I) setting out the respondent as the
father of the child. Though the respondent has attempted to neutralise
the entry in Exhibit Kha- I by examining D. W.2 and making it appear
that the entry had been made on the basis of information given by a
third party, the lower courts have refused to give credence to the
vague and uncorroborated testimony of D. W.2. It is also significant to
B note that the respondent had allowed eleven months to pass before
effecting a divorce. By his inaction for such a long period the respon-
dent has given room for inference that the divorce may have been
effected for other reasons and not on account of the appellant giving
birth to a child conceived through some one else. Lastly, even if the ....
child had been born after a full-term pregnancy it has to be born in
c mind that the possibility of the respondent having had access to the
appellant before marriage cannot be ruled out because they were
closely related and would therefore have been moving in close terms.
All these factors negate the plea of the respondent that the minor child
was not fathered by him.
D The proper course for the High Court, even if entitled to in-
terfere with the concurrent findings of the courts below in exercise of
its powers under Section 482 Cr.P.C., should have been to sustain the
order of maintenance and direct the respondent to seek an appropriate
declaration in the Civil Court, after a full-fledged trial, that the child
was not born to him and as such he is r.ot legally liable to maintain it.
E Proceedings under Section 125 Cr.P .C., it must be remembered, are of
a summary nature and are intended to enable destitute wives and
children, the latter whether they are legitimate or illegitimate, to get
maintenance in a speedy manner. The High Court was, therefore,
clearly in error in quashing the order of maintenance, in favour of the
child. ( --
F
The appeal has, therefore, to succeed and we accordingly allow
·~
the appeal and set aside the order of the High Court and restore the
order of maintenance passed lly the trial court.

S.R. Appeal allowed.