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Dibakar Menon Vs. Pankajini Naik - Court Judgment

LegalCrystal Citation
SubjectCriminal;Family
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 378 of 1984
Judge
Reported in1985(II)OLR14
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantDibakar Menon
RespondentPankajini Naik
Appellant AdvocateA. Routray and ; Ranjeeta Das, Advs.
Respondent AdvocatePradip Mohanty and ; B.P. Ray
DispositionPetition dismissed
Cases ReferredRex v. Baskerville
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - the petitioner did not pay any heed to the advice of the villagers and well-wishers. it is well settled that no presumption of law can arise with regard to paternity of a child born out of lawful wedlock......order dated 28. 6. 84 passed by the learned s.d.j.m., bonai directing the petitioner to pay to the opposite party maintenance of rs. 75/- per month for her illegitimate child.2. the opposite party filed an application under section 125 of the code of criminal procedure claiming maintenance of rs. 500/-per month for herself and for her child on the ground that the petitioner was the father of the child. according to the opp. party, during her minority the petitioner who was her neighbour falsely promised marriage and cohabited with her as a result of which a son was born to her. thereafter the petitioner forsook the opposite party and the child. the petitioner did not pay any heed to the advice of the villagers and well-wishers. as the opposite party was unable to maintain herself, she.....
Judgment:

B.N. Misra, J.

1. This revision is directed against the order dated 28. 6. 84 passed by the learned S.D.J.M., Bonai directing the petitioner to pay to the opposite party maintenance of Rs. 75/- per month for her illegitimate child.

2. The opposite party filed an application under Section 125 of the Code of Criminal Procedure claiming maintenance of Rs. 500/-per month for herself and for her child on the ground that the petitioner was the father of the child. According to the opp. party, during her minority the petitioner who was her neighbour falsely promised marriage and cohabited with her as a result of which a son was born to her. Thereafter the petitioner forsook the opposite party and the child. The petitioner did not pay any heed to the advice of the villagers and well-wishers. As the opposite party was unable to maintain herself, she took shelter of the court claiming maintenance from the petitioner.

3. In his counter the petitioner has denied all the allegations made by the opposite party. He has denied that he had ever cohabited with the opposite party and that the child born to the opposite party was his. According to the petitioner, the opposite party is a girl of loose character and has falsely implicated him at the instance of some designing persons of the village.

4. The opposite party examined herself as P. W. 1 and two other witnesses. P W 2 belongs to the same village as the Opposite Party and works as a watchman in a local cooperative society situated at a distance of only forty cubits from the house where the Opp. Party used to live. P. W. 3 is P. W. l's mother. The petitioner examined himself as O. P. W. 1 After hearing the parties, the learned lower Court granted maintenance of Rs. 75/- per month to the child on the ground that the petitioner was the father, but refused to grant any maintenance to the opposite party. This order of the learned Magistrate is under challenge in this revision.

5. Miss Ranjeeta Das, learned counsel appearing for the petitioner, urged that the finding of the learned Magistrate that the petitioner was the father of the illegitimate child cannot be sustained as the evidence of the Opp. Party, the mother, in this regard has not been adequately corroborated. In support of this contention reliance is placed on the following three decisions :

In AIR 1951 Patna 511 ( Thakur Prasad v. Mt. Godavari Devi); the following observation of the Madras High Court was referred to with approval;

'...Where the question at issue was whether a certain man was the father of a certain child, it was prima facie improper to accept without corroboration, the mere statement on oath of the mother who asserted the paternity. Her evidence in such a case could not but be highly interested, & it would be unreasonable & improper for any Court to act merely on her own statement without some independent corroboration thereof.......'

In XXXV (1969) CLT Short Notes 144 ( Bakuli Sahu v. Khedri Dei), the same principle was reiterated.

In XXXVI (1970) CLT Short Notes 167 (A. Gunna Rao v. Tara Beherani), it was held :

' The onus lies squarely on the mother to establish the paternity of a child and it is for her to prove that the person from whom she claims maintenance for the child is the father of the child.......'

Mr. B.P. Ray, learned counsel appearing for the Opp. party, submitted that the corroboration that is required under the law has been provided in this case by the mother of the Opp. party, P. W. 3, and the independent witness, P. W. 2. Besides, it is pointed that the evidence as regards this question is also corroborated by the complaint which had been lodged by the opposite party with the S. D, O., Bonai and the petitioner has admitted his knowledge about this complaint.

6. I have carefully considered the respective cases of the parties, Admittedly the petitioner and the opposite party are not married. It is well settled that no presumption of law can arise with regard to paternity of a child born out of lawful wedlock. Further, in a dastardy case apart from the testimony of the mother there must be some independent corroboration. At this stage it would be useful to refer to the following observations of the Court of Criminal Appeal in Rex v. Baskerville, ( 1916 ) 2 K. B. 658 :

'We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirm in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute. The language of the statute, 'implicates the accused, compendiously incorporates the test applicable at common law in the rule of practice. The nature of the corroboration will necessarily very according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to shove that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.'

Bearing these observations in mind, I have scrutinised the evidence of the witnesses who have deposed in this case. According to the opposite party, she was a minor when she was enticed by the petitioner with false promise of marriage and as a result of cohabitation between the two, a child was born to her. To her misfortune, the petitioner did not marry her or own up responsibility for the child. All these allegations have been denied by the petitioner in his evidence. However, the evidence of the opposite party has been fully corroborated by her mother, P. W. 3, and P. W. 2, who is an independent witness. P. W. 2 has stated that on many occasions he had seen the opposite party in the company of the petitioner and they used to stay in the house of the petitioner alone and separately and on one particular occasion the petitioner had offered him Rs. 10/- to buy his silence. The evidence of P. Ws. 2 and 3 provides sufficient corroboration to the evidence of the opposite party. I would therefore agree with the finding of the learned Magistrate that the petitioner is the father of the illegitimate child.

7. This revision is accordingly dismissed and the impugned order is confirmed.


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