Ram Chandra Giri v. Ram Surat Giri And Another Opposite Parties.

1. This is a revision against the order of Sri N.N Chadha, Sessions Judge, Faizabad.

2. On 3-11-1977 Ram Chandra Giri aged about 6 years filed an application under S. 125 Cr. P.C against his father Ram Surat Giri, resident of Unauna Dullapur, police station Bhiti, district Faizabad. The complainant's case is that when he was about 5 years old his father Ram Surat Giri brought another woman and turned out his mother who along with the complainant and his elder sister, who was also a minor, started living with her father Ram Narain. When his mother could not pull on, she was compelled to take another husband. Thereafter the complainant's father took his elder daughter Radhika from her nanihal, but he continued to live with his maternal grandfather. The maternal grandfather of the complainant, who was residing in Sheopur, used to look after the complainant and he arranged for his studies also. Sometimes the complainant's father used to come and give some money for his studies. Ultimately the maternal grandfather of the complainant retired from Government service and he was drawing only Rs. 65/- per month as pension. He had his own family to maintain within that meagre pension. Ultimately the maternal grandfather also died. The maternal uncle of the complainant is finding it difficult to maintain his own family as well as the complainant. Now they have expressed their inability to maintain the complainant. The father of the complainant has cultivation and income from his salary. The complainant was a student. He went to his father and told him that his Nana and Mama were now unable to maintain him and a stage had arrived when he had to stop his studies and would not be able to have his two meals. On this the father told the boy that he would make some arrangement after sometime. He again went to his father who ultimately refused to give any money. In nut-shell the complainant's father brought a woman and turned out his mother. He and his mother started living with his mother's father who subsequently retired and ultimately died. Now he was at the mercy of his Mama who himself has a meagre income and his own big family to support. The complainant Ram Chandra examined himself as P.W 5. Ram Kripal (P.W 1) is his Mama who has supported the complainant's version. Avadh Narain (P.W 2) has also corroborated him. Ram Prasad (P.W 3) Pradhan has stated that the complainant is the son of Ram Surat opposite party who has sufficient cultivation. Sheo Mangal (P.W 4) is a cousin of Ram Surat opposite party. He admits that Ram Chandra complainant is the son of Ram Surat. Ram Surat resisted the claim of the complainant on the ground that he was not his son and since he was healthy and major, he was not entitled to maintenance. The learned Magistrate held that the alleged panchayat, in which the complainant's mother is said to have begged for pardon, could not be established, that the complainant was a minor son of the opposite party and that the presumption available under section 112 Evidence Act could not be rebutted by the father of the complainant. So he granted Rs. 100/- per month as maintenance allowance to the complainant.

3. The father went up in revision before the District Judge who held that the complainant was not the son of Ram Surat and since it was not mentioned in the complaint nor it was in evidence that the complainant was unable to maintain himself, so the complainant was not entitled to any maintenance. The poor boy was compelled to move this Court.

4. The following facts were not disputed before me. Firstly, that complainant Ram Chandra's mother was a legally wedded wife of Ram Surat opposite party; secondly, that Ram Chandra complainant was a minor; thirdly, that the complainant's elder sister was residing with her father; and fourthly, that the complainant's mother and father both have re-married and the complainant was residing with his Nana who ultimately died and now he was being maintained by his Mama.

5. Arguments in this court were confined to the following two points:—

(1) Whether Ram Chandra complainant is the son of Ram Surat or not.

(2) Whether the complainant has been able to establish that he is unable to maintain himself.

6. section 112 Evidence Act lays down that the fact that any person was born during the continuance of a valid marriage between his mother and any man shall be 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 could have been begotten. The presumption of legitimacy is so highly favoured that the proof of non-access should be clear and satisfactory. This presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability; the evidence for the purpose of repelling it must be strong, distinct, clear, satisfactory and conclusive. The learned Magistrate rightly held that the husband could not prove that he had no access to his wife and therefore, the aforesaid presumption could not be rebutted by him. This finding given by the learned Magistrate is not perverse, illegal etc. and therefore, the learned Sessions Judge was not justified in disturbing this finding of fact.

7. The main contention was that Ram Kripal (P.W 1), the own Mama of the complainant, has stated that the mother of the complainant along with the complainant left her husband in 1958 and this boy was born in 1960. According to the school register, the boy was born in December, 1961. So it was argued that in view of this statement the learned Magistrate was not justified in holding that the complainant was the son of his father. The learned Sessions Judge read a particular sentence of the statement of Ram Kripal (P.W 1) in isolation. If the statement of this witness is read as whole, it would come out that there is no such admission in that statement from which it could be safely concluded that the complainant was an illegitimate child. P.W 1 Ram Kripal has stated that complainant Ram Chandra is the son of Ram Surat, that he was born in Innauna (village of the father) and that when the mother of the complainant was turned out by her husband, the complainant was aged about five years. The matter was quite old. This witness is a villager. Such type of people normally do not measure time and distance with exactitude. So under the circumstances of the case, he could give a wrong year (when the wife was turned out). The statement of the witness is also to the effect that this child was about five years old when its mother was turned out. So it was wrongly held by the learned Sessions Judge that the complainant was not born when his mother was turned out. In official papers the complainant's father's name is shown as Ram Surat. Officially he is shown to have been born in the village of his father and not in the village where his Nana was residing. The oral evidence also supports the complainant's version that he was considered by the people as the son of Ram Surat. In view of the facts and the attending circumstances of the case, the learned Sessions Judge could not concern the finding of the learned Magistrate on this score as perverse or illegal. So the learned Sessions Judge has committed an error of law, while disposing of the revision, in disturbing the finding of the fact to the effect that the complainant was the son of Ram Surat. Even if it is assumed that the complainant was born after his mother was turned out, the husband has failed to rebut that presumption in the manner referred to above. So it has been clearly established that the complainant was the son of Ram Surat opposite party.

8. It was next contended that neither in the pleadings nor in the evidence it was stated that the complainant is unable to maintain himself.

9. Generally pleadings are losely drafted, so courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claim being defeated on trivial grounds. Even if the pleading is inartistically drafted, it should not be construed in a hypertechnical manner. It is not the form but substance of the matter which will have to be looked into and no undue importance be attached to the form or words and expression used by the complainant in the application under section 125 Cr. P.C or in the deposition. The law of civil pleadings should not be rigidly and blindly applied to a case under S. 125, Cr. P.C If there is no specific pleading regarding inability to maintain in so many words, the same can be gathered from the evidence and circumstances of the case. If there are allegations in the plaint suggesting that the complainant is unable to maintain and the same are not controverted by the other side, the allegations so made can be safely accepted. In the complaint it has been stated that the father brought a woman and turned out his first wife along with the complainant. The complainant's mother re-married and he was left at the mercy of the maternal grandfather who subsequently retired with a meagre pension and now he is dead. The complainant is a minor and a student and is now living at the mercy of his maternal uncle who has his own big family to support with a meagre income. It is further alleged that the Nana and Nama of the complainant could not bear the expenses of the complainant and his studies were likely to be stopped and he was facing great difficulty in having two meals etc. So it cannot be said that there is nothing in the pleading to suggest that the complainant is unable to maintain himself. The evidence is also in conformity with the aforesaid allegations in the plaint. It has not been mentioned in the written statement that this young boy has any source of income and is able to maintain himself. The only allegations made by the father are that this boy has good physique and he can earn his livelihood. It appears that the parents of the complainant have re-married. He is living at the mercy of his Mama who has his own big family to maintain with meagre income. The complainant appears to have no independant source of income. The words “unable to maintain” have nothing to do with the phrase “potential earning capacity” of the complainant. The concept of able bodied persons' ability to earn cannot be extended to such cases because it will defeat the very object of legislation. It will involve re-opening of endless enquiry about such ability, capacity, avenues and opportunities which the Legislature never intended. So it is immaterial that this young boy, who is a student, can leave his studies and start working as a labourer, orderly etc. So there is good evidence to prove that this minor boy is the son of opposite party Ram Surat and he is unable to maintain himself. Instead of maintaining this poor boy the father condemned him as illegitimate. So there has been neglect and refusal both. The capacity of the father to maintain his son has not been disputed before me. So the finding of the learned Sessions Judge is clearly bad in law and he was not legally justified in reversing the findings of the learned Magistrate.

10. The amount of Rs. 100/- appears to be reasonable in view of the present trend of prices. It is not only the duty of the father to maintain the child bodily but also mentally (education). In the result, the revision is allowed, the order of the learned Sessions Judge dated 18-2-1880 is set aside and the order of the learned Magistrate dated 23-2-1979 is restored.

11. Revision allowed.