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Norbet Kispatta Vs. Mst. Tersa Kerketa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1971CriLJ1496
AppellantNorbet Kispatta
RespondentMst. Tersa Kerketa
Excerpt:
.....prescribed under section 488 (3), criminal p. padhi, in spite of her best efforts, could not cite any decision in support of her contention to the effect that the petition under section 488, criminal p. the court therefore was perfectly justified in granting the aforesaid maintenance......party in the court below, has been directed to pay rs. 20/- p. m. towards the maintenance of a child born to the opposite party, who was the petitioner in the court below. the said child, as found by the court below, was born to the opposite party through her union with the petitioner.2. mrs. padhi, the learned counsel for the petitioner mainly contended that the court below was legally not justified in granting maintenance for the child as in the petition under section 488, criminal p.c. filed in the court below by the opposite party, maintenance was claimed for a female child, whereas the opposite party in her deposition in the court below claimed maintenance for a male child. mrs. padhi in this connection contended, that the relief given under section 488, criminal p.c. being of a.....
Judgment:
ORDER

S. Acharya, J.

1. The petitioner in this revision, who was the opposite party in the court below, has been directed to pay Rs. 20/- p. m. towards the maintenance of a child born to the opposite party, who was the petitioner in the court below. The said child, as found by the court below, was born to the opposite party through her union with the petitioner.

2. Mrs. Padhi, the learned Counsel for the petitioner mainly contended that the court below was legally not justified in granting maintenance for the child as in the petition Under Section 488, Criminal P.C. filed in the court below by the opposite party, maintenance was claimed for a female child, whereas the opposite party in her deposition in the court below claimed maintenance for a male child. Mrs. Padhi in this connection contended, that the relief given Under Section 488, Criminal P.C. being of a civil nature the petition in the court below is in the nature of a plaint in a civil suit, and the claim made therein being for the maintenance of a female child, the court was not legally competent to grant maintenance for a male child on the deposition of the opposite party in the court below. To support her above contention she cited the decision in A.I.R. 1960 SC 882 in which their Lordships, while discussing the question as to whether in a proceeding Under Section 488, Criminal P.C. the Magistrate has the power to make a preliminary enquiry before issuing notice to the opposite party, observed:-

The relief given under this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court. This Chapter is a self-contained one. It recognizes the right of a child or wife to claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the magistrate.

Their Lordships' above observations connote the nature and the scope of a proceeding Under Section 488, Criminal P.C.

An application Under Section 488, Criminal P.C. is not a complaint within the meaning of Section 4 (c) of the Code, and a person against whom such an application Under Section 488, Criminal P.C. is made is not charged with and tried for any offence, and so he is not in the position of an accused in such a proceeding. It is well settled that the imprisonment prescribed Under Section 488 (3), Criminal P.C. is not a punishment, but is merely a means of enforcing the payment of the maintenance ordered by the Court. That is why the relief given under Chapter XXXVI is considered to be of civil nature. But all the same the proceedings under the said Chapter are not civil proceedings so as to attract the provisions of the Civil P.C. as the said proceedings are wholly governed by the provisions of the Criminal P.C. That being so the provisions of Orders VI, VH and VIII, Civil P.C., relating to pleadings in a civil suit, do not apply to a petition Under Section 488, Criminal P.C.

Mrs. Padhi, in spite of her best efforts, could not cite any decision in support of her contention to the effect that the petition Under Section 488, Criminal P.C., is in the nature of a pleading in a civil suit and as such relief can only be given in strict accordance with the particulars stated therein. Strict provisions have been made under Orders, VI, VII and Till of the Civil P.C. for signing, verifying and stating all the necessary particulars in the pleadings in civil suit, and as such lot of importance is attached to the averments and the particulars stated in such pleadings. Even in spite of such strict provisions, these pleadings, and specially those coming from the Muffosils, are not construed very strictly. Moreover a petition Under Section 488, Criminal P.C. is not required under the law to be signed and verified in the manner prescribed under the Civil P.C., No doubt if there be statement in the nature of admission in such a petition before the court, those statements, when duly proved, may be admissible in evidence, but such admissions are not conclusive proof of the matters admitted (A.I.R. 19G6 SC 405 at p. 410).

3. In the present case the opposite party herein who filed the petition in the court below is an illiterate Adibasi female who has put her left hand thumb impression to the petition filed by her in the court below. There is no mention in the said petition that the contents therein were read over and explained to the petitioner. At only one place in the prayer portion of the said petition the child has been stated to be a female child. The petitioner in court solemnly affirmed in a definite manner that the child born to her through the petitioner herein is a son. In her lengthy cross-examination she was nowhere confronted about the aforesaid statement in her petition.

The court, on an elaborate and plausible discussion and consideration of the evidence on record, arrived at the finding of fact that the child was born to the opposite party through the petitioner, and on such a finding the court below ordered for the payment of maintenance to the said child. The above mentioned finding of fact was not assailed in any manner. There was also no attempt to agitate this question of fact in the court of fact below. The above mentioned inconsistency, in my opinion, is borne out oi an inadvertent mistake of the petition writer, and for that it cannot be said that the court was not legally competent to pass the impugned order for the payment of maintenance.

4. It was next contended by Mrs, Padhi that in the impugned order there is no finding that the child is unable to maintain itself. There is no substance in this contention. The court below found that the said child was born in September, 1966. The petition was filed in 1967, and by 11-11-1967, when the court below passed the impugned order, the child was only 2 years old, and was certainly unable to maintain itself. The court therefore was perfectly justified in granting the aforesaid maintenance.

5. The opposite party being the mother and in custody of the child, was legally competent to move the court for the grant of maintenance for the child. (See 1962 (2) Cri LJ 189 (1))=(A.I.R. 1962 Ker 234). Accordingly there is nothing wrong in the impugned order on this score also.

6. On the above considerations, I do not find any merit in this revision which is accordingly dismissed.


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