V.S. Kotwal, J.
1. An irrational view and vulnerable reasons by the lower appellate Court are but only a few landmarks as the major one depicts an unjustified criticism leveled against the lady, which practically tantamount to adding insult to her injury. The last but not the least is that a minor child has been denied maintenance. All these features collectively appear in the judgment recorded by the lower appellate Court and that too in provisional jurisdiction. It is with a sense of constraint that these observations are being recorded, which however, are inescapable.
2. One Banubi had filed an application under section 125 of the Code of Criminal Procedure before the learned Judicial Magistrate. First Class, Nandurbar claiming maintenance for herself and her minor son Jalauddin. First respondent herein was imp leaded as opponent in the said application against whom the relief of maintenance was claimed. In effect her case was that she is legally wedded wife of the said respondent and that they have been staying together as husband and wife for more than 12 years at Nandurbar. Our of the wedlock three children were born-two daughters and one son, though unfortunately both the daughters did not survive, leaving behind only the son. It is claimed that the husband ill-treated the wife and drove her out of the house whereafter he married one Sakinabi even though the first marriage was in subsistence. This was the event of the year 1978. It is claimed that the husband without any reasonable cause neglected to maintain the wife and son as both of them are unable to maintain by themselves. As regards the quantum, the wife claimed that the husband was serving in Railways as Railway Driver and was earning about Rs. 1100/- per month, she, therefore, claimed Rs. 150/- and Rs. 50/- per month for herself and minor son respectively.
3. The respondent while resisting the application denied all adverse allegations. In fact he took exception at the threshold itself by contending that Banubi was never married to him. The further bold statement is that Jalauddin is not his son nor any daughters were born to Banubi. According to him, he has no concern whatsoever either with the lady or the child. He has thus obviously denied the allegation of ill-treatment though he had admitted that he married Sakinabi in March 1978 though the marriage could not be challenged since Banubi had never married him. It was then suggested that Banubi is a woman of loose character and in order to extract money she filed a false application.
4. At the initial stage an ex parte order was passed against the said respondent by the learned Magistrate, though it was later on set aside. Thereafter, Banubi's application was contested and decided on merits. The learned Magistrate held that Banubi failed to establish that she was married to the first respondent and it is on that count that her claim for maintenance was rejected. However, a finding was recorded that the said respondent is the father of Jalauddin, though illegitimate, and monthly allowance of Rs. 75/- was awarded in his favour. The said respondent challenged that order in the Sessions Court while Banubi approached the same Court against the dismissal of her claim of maintenance. Both the revision applications were heard by the Sessions Court when Banubi's application was remanded for fresh enquiry especially allowing the parties to lead fresh evidence even as regards the factor of marriage. After remand, Banubi gave her evidence and examined one Usmankhan, though the respondent did not lead any additional evidence. The learned Magistrate once again held that Banubi failed to establish her marriage with the said respondent. He, however, recorded a finding that Jalauddin, though illegitimate child, was entitled to maintenance and granted allowance at the rate of Rs. 125/- per month.
5. The said respondent preferred Revision Application against that decision in the Sessions Court at Dhule. The learned Sessions Judge disagreed with the findings of the trial Court on the main question as to what her said respondent is the father of Jalauddin and held it in the negative and, therefore, the learned Magistrate's order was set aside and the child was denied the maintenance. Banubi had not preferred any revision against the dismissal of her claim of maintenance for against the decision of the learned Sessions Judge.
6. Shri R.M. Agrawal, learned Counsel, assails the impugned order on various ground. According to him the lower appellate Court had initially strained itself to arrive at that conclusion and it was quite unfair to hold that Banubi though mistress of the said respondent may not have been in exclusive keeping, thereby suggesting that Jalauddin may have been born of some other person. The learned Counsel also criticised the manner in which the oral and documentary evidence has been discarded. Shri Sali, the learned Counsel for the respondent, while supporting the impugned order adopted more or less the same reasons and contended that basically Banubi had failed to establish that the respondent is the father of her son.
7. It is conceded that even an illegitimate child is entitled to maintenance. There is consistent finding of all forums that Banubi was not legally wedded wife of the respondent, though there is significantly a clear finding not only by the trial Court but even by the lower appellate Court that Banubi and respondent had stayed together for quite some time at Nandurbar treating Banubi as respondent's mistress. This finding really changes the complexion of situation. To get over this inconvenient situation it is surprising to note that the learned Sessions Judge was persuaded to uphold the validity of the contention of the respondent that Banubi was not 'in exclusive keeping' of the respondent. It is very difficult to find rationale to this finding. Time and again the lower appellate Court has referred to this aspect showing that Banubi was not in the exclusive keeping of the respondent though it is not suggested much less established that Banubi was of a loose character so that atleast inherently it could be said that she may be in the keeping of some other person. It is, therefore, not understood as to on what basis the lower appellate Court observed repeatedly that she was not in the exclusive keeping of the respondent. There is obviously no evidence in support of that finding. Similarly, the learned Sessions Judge was obviously hesitant which is apparent from the fact that repeatedly he has observed that Jalauddin could not be 'necessarily' the son of respondent. It is against the backdrop of infirmities in the judgement that the reasons will have to be analysed. The oral evidence consists that of Banubi and her brother Shaikh Mukhtar, who are sought to be supported by independent witness Vasant Thakare. The evidence of Banubi's sister and brother is discarded predominantly on the ground that they are interested witnesses little realising that in such a contingency it is difficult to adduce evidence of independent witnesses on a liberal scale as wife would be a better qualified person to depose about these features. That is what has been done by Banubi when she positively asserted about the manner and their living for years together. She has given details that two female children were born, who did not survive and then Jalauddin was born, who fortunately survived. These are such details which could be legitimately furnished by the wife and the mother and it would be too artificial to expect independent corroboration to such features. The so-called contradiction in the evidence of the brother as to whether the son was born after the female children is really of not much consequence since the substance of his evidence remained intact. Shri Sali, the learned Counsel, submits that the brother had suggested that Banubi and respondent were staying for nearly 12 years and Banubi's house at Nandurbar and even then none of the relations has been examined. This is asking evidence of the wife to be corroborated by other co-relations, which asking could be justified provided Banubi's evidence on merits is unacceptable. It is further significant to note that even the learned Sessions Judge in terms accepts that Banubi and the respondent did stay together under the same roof just as husband and wife, though not legally wedded, for some years. As stated the learned Sessions Judge has merely indulged in thoroughly unjustified conjecture to observe as :
'Their evidence does not necessarily indicate that at the time when Jalauddin was begotten Banubi was in exclusive keeping with the petitioner and she had no access to any other person.'
This finding is not only thoroughly unjustified but is really based on an imaginary thought with a shade of exhibiting unfairness to the lady. Assuming that she was unable to establish lawful marriage and assuming that she was treated as mistress by the respondent, nonetheless having regard to the circumstances and their staying together for quite some time and in the utter absence of any other evidence about her character or activities, it is unfair to discard her evidence that she gave birth to Jalauddin during their association. There is hardly any substance in the contention of the respondent that Banubi wanted to blackmail him and that is whey a false claim has been made. This claim was not made by her for several years. Jalauddin was at that time six years of age while her association with the respondent was for nearly 11 to 12 years.
8. The evidence of the witness Vasant Thakare is treated as that of an independent witness. He is barber by profession and has his shop just adjacent to the house where Banubi and respondent were residing. He has stated that he had seen them living together atleast for 2 years. He has no doubt accepted that he resided in that house from 1977 to 1978 and therefore, it was suggested that he could not have any knowledge as to what happened in the year 1971. This overlooks the basis aspect that if this evidence is accepted then atleast in 1977-78 Banubi and the respondent were staying together which highly probabilise Banubi's contention that they were thus residing even earlier and similarly in the year 1971 meaning thereby that it probabilised the continued residence of these two persons till the year 1978. It is with no justification that this evidence has not been accepted. Banubi has been criticised since she could not give the exact birth dates of the two daughters, who did not survive. Looking to the caliber of the lady and the strata of the society from which she hails, such an expectation is unjustified. However, this can hardly be a ground for discarding her evidence.
9. The oral evidence is supported by some documents and it is very surprising that those documents were also being discarded for equally unsustainable reasons. The first is the copy of the affidavit purported to have been made by the respondent. The original was brought in the Court and its certified copy, which is filled in the Municipal Council at Nandurbar, has been filed in Court at Exhibit 26. This was produced by Nasirkhan. The affidavit makes it clear that it was sworn by the respondent, who has given his name as Keki Navaroji Ready money and he has categorically admitted that Jalauddin, who is his son was born at Nandurbar on November 23, 1971. He made a further statement that inadvertently the entry regarding birth of the boy remained to be made in the birth register by the Municipality. It is on the basis of that affidavit that the entry was made in the birth register maintained by the Municipal Council and the relevant extract is produced at Exhibit 27 which also reiterates that Jalauddin is the son of Keki Navaroji and was born on 23-11-1971. No doubt this entry was made in the year 1976 and, therefore, Shri Sali, the learned Counsel contends that there is a delay of nearly 5 years after birth. An absolutely unfounded submission is sought to be canvassed. The concept of delay has no relevance in the circumstances. Further more Banubi coming from a lower strata of the society may not have thought of giving information to the Municipal Council till that time though she corrected the mistake and than can hardly be a ground to discard the same. Nasirkhan has produced the said affidavit. One Madhavrao Laxman is a clerk of the Advocate, who scribed the affidavit. Usmankhan is claimed to have identified the respondent. Nasirkhan stated that one Ambalal accompanied the respondent and Shri Sali, the learned Counsel, therefore, submits that this Ambalal has not been examined, which suggests that this Ambalal may not have and accompanied but it was Ambala, who had given that application. There is no foundation to this contention also. The witness no doubt could not say as to who signed the application. The giving of the application to the Municipal Council is a secondary act in the process while the basis act is in the shape of affidavit which is demonstrably proved to have been made by no other than the respondent clearly admitting that he is the father of Jalauddin. The Clerk Madhavrao had ascribed the affidavit at the instance of respondent. He no doubt could not say as to who dictated the contents of the affidavit. This evidence is thus not seriously challenged or atleast shaken on that count. The attesting witness Usmankhan; who is serving is Tahsildar Office, no doubt was in a mood to support the respondent when he suggested that he did not identify respondent and he identified only Banubi at the time of making of the affidavit. The learned Judge has dealt with this aspect in rather a casual manner and has not assigned any convincing reasons. On the contrary this evidence can be safely relied upon.
10. The other document is in the shape of Ration Card, which however, was not exhibited. Therein one Roshan Mukhtar is shown as husband of Banubi while Jalauddin Roshan is shown as son of Banubi. The name of one Shamim as daughter of Banubi is also mentioned. The learned Sessions Judge again indulged in conjecture by observing that many times more names are included to get more quantity of food little realising that it is not a matter of giving more names as the relevant feature is that significantly the name of Jalauddin appears therein as son of Banubi and Roshan. This again could not be a coincident. The respondent appears to have figment of imagination. Realising Roshan's name appearing as the name of Jalauddin's father in this document, in his deposition he admitted that though he was also known as Roshan still that alias come to be attracted to him only after the year 1978. It is difficult to accept this statement and therefore, the said document can be reasonably connected with the parties in question.
11. Then there is a certified copy of the sale-deed of the year 1976, which shows that Banubi and four others had purchased a property for Rs. 3,000/-. Therein Banubi has been described as one of the purchaser and her name is given as Banubi wife of Keki. One other purchaser along with her is shown as Keki Navaroji. The learned Judge was not able to assign any reason as to why these documents should be discarded. There are two receipts issued by Nutan Kanya Mandir, Nadurbar in the name of student. There the name is given as Jalauddin Keki Navaroji and those of the year 1978. The learned Judge felt that there is no evidence that the respondent gave the information about that evidence. However, he again observed that those receipts do not 'necessarily' show that Keki Navaroji Ready money is the father of Jalauddin.
12. The crucial aspect, which has been however, missed by the learned Judge is about the effect of totality of all those circumstances and the documents. It could not be just a coincident that in all these documents respondent is shown as father of Jalauddin. Relevance of the documents lies in this field. All the documents are of different nature and even then there is a thread of consistency so far as relevant issue is concerned. These documents could not have been maneuvered at the time. In my opinion, therefore, these documents furnish a substantial corroboration to the oral testimony.
13. Another document was relied upon by the respondent being certified copy of the medical certificate of Jayprakash Municipal Hospital, Nandurbar and also an extract of birth register from the Municipal Council. This medical certificate is dated 14th August, 1982 and suggests that Banubi Ashrafkhan Mohamed, delivered a male child on 23-11-71. The birth extract also shows that a son was born of Ashrafkhan. Relying on this, it was urged by Shri Sali, the learned Counsel, that may be that some person by name Ashrafkhan Mohamed is the father of Jalauddin on which basis it is further submitted that Banubi may have some relations with the said person. Banubi has flatly denied any such suggestion and there is not even an iota of evidence even to inferentially support the same. Significantly these documents are not taken into account by the learned Sessions Judge on the ground that firstly because the original documents are not produced and secondly because their is nothing on record to show as to who gave the information and as to, whether it was authentic. No further comments are necessary.
14. Having regard to all these features collectively the impugned order by the learned Sessions Judge is obviously unsustainable. The burden cast on Banubi has been wholly discharged while the denial by the respondent carries no conviction, though the same denial is equally cruel in nature. As against this the learned Magistrate was more justified in accepting the evidence of Banubi and her witnesses and has assigned quite cogent reasons. The learned Sessions Judge at every stage appears to have been hesitant which is reflected in most of the vulnerable reasons assigned by him. To discard the evidence on a specious ground that Banubi may not be in 'exclusive keeping' of the respondent, hardly does justice to the cause. No further comments are necessary, which would really burden the record.
15. As regards the quantum of maintenance, Shri Sali, the learned Counsel, submitted that Banubi has asked in her application for an amount of Rs. 150/- as monthly allowance for her son whereas the learned Magistrate has granted Rs. 125/- per month. However, it is rightly submitted by Shri Agrawal, the learned Counsel, that after remand, in her deposition Banubi made a positive statement that she was asking for Rs. 150/- for her son on account of two reasons, one at the initial stage when she made application Jalauddin was of 6 years while at the relevant time he was of 12 years of age and secondly at the earlier stage the respondent's salary was Rs. 1100/- whereas it has been increased to Rs. 1600/- per month, which is accepted by the husband. Having regard to the needs of the child and the income of the father Rs. 125/- per month cannot be said to be excessive. Consequently, the child would be entitled to get Rs. 125/- per month from the respondent as monthly allowance by way of maintenance.
16. Rule made absolute. The impugned order recorded by the learned Sessions Judge is set aside while the one recorded by the learned Magistrate is restored with the effect that the respondent shall pay a monthly amount of Rs. 125/- in favour of the petitioner-minor son Jalauddin from the date of application as directed by the learned Magistrate.