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Ghana Kanta Mahanta Vs. Musammat Gerela and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in2Ind.Cas.550
AppellantGhana Kanta Mahanta
RespondentMusammat Gerela and ors.
Cases ReferredChouturya Run Murdun Syn v. Sahub Purhulad Syn
Excerpt:
refusal of application under section 488 does not bar civil siut - hindu law--criminal procedure code (act v of 1898), section 488--maintenance, right of--illegitimate child. - .....that, if the magistrate refuses to grant maintenance, his order would be conclusive so as to bar a civil suit. under section 11 of the code of civil procedure, a suit lies in the civil court for every subject-matter of a civil nature unless the cognisance of such suit is barred by any special enactment for the time being in force; and there is no law prohibiting such a suit as this.5. if the magistrate had made an order granting maintenance, the paternity of the child being established, possibly a suit would not lie in the civil,, court to set aside the order; but in this case the plaintiff' does not ask, nor indeed it is necessary for the success of her case, to have the order of the magistrate set aside. and this, to our mind, distinguishes the case from the cases quoted by the learned.....
Judgment:

1. This appeal arises out of a suit for maintenance claimed by a Hindu woman on behalf of her minor child, said to have been begotten by the defendant. An application had been made by the woman before the Magistrate under Section 48 3 of the Code of Criminal Procedure, but that officer disallowed the application. Subsequently, the present suit was brought in the Civil Court.

2. The Court of Appeal below has found that the child is the illegitimate child of the defendant and has, accordingly, given a decree for maintenance.

3. It has been contended on behalf of the defendant, the appellant before us, that the right of an illegitimate child to claim maintenance against the putative father is but the creature of the Code of Criminal Procedure, that the order of the Magistrate disallowing maintenance is conclusive, and no suit lies in the Civil Court for the same matter, and that the Hindu law does not authorize maintenance being granted to illegitimate children. And the learned vakil has relied, in support of his contention, upon two cases, one is Subad Domni v. Katiram Dome 20 W.R. 58 Cr and the other is Subhudra v. Busdeo Dube 18 A. 29.

4. We are unable to affirm these propositions as correct. What Section 488 of the Code of Criminal Procedure lays down is simply this : that an application for the grant of maintenance to an illegitimate child may be made in the Criminal Court and, if the Magistrate finds the necessary facts proved, he may make an order for such maintenance. There is nothing in the Code of Criminal Procedure indicating that, if the Magistrate refuses to grant maintenance, his order would be conclusive so as to bar a Civil suit. Under Section 11 of the Code of Civil Procedure, a suit lies in the Civil Court for every subject-matter of a Civil nature unless the cognisance of such suit is barred by any special enactment for the time being in force; and there is no law prohibiting such a suit as this.

5. If the Magistrate had made an order granting maintenance, the paternity of the child being established, possibly a suit would not lie in the Civil,, Court to set aside the order; but in this case the plaintiff' does not ask, nor indeed it is necessary for the success of her case, to have the order of the Magistrate set aside. And this, to our mind, distinguishes the case from the cases quoted by the learned vakil for the appellant, where the Magistrate had made an order granting maintenance, and it was sought to have such order set aside or superseded by a suit in the Civil Court.

6. As to the contention raised that the Hindu law does not authorize maintenance being granted to illegitimate children, we need only refer to the case of Chouturya Run Murdun Syn v. Sahub Purhulad Syn 1 M.I.A. 18 : 4 W.R. 132 (P.C.) where the right of an illegitimate child to claim maintenance under the Hindu law was affirmed. But apart from the Hindu law, we should think that, upon general principles, the defendant having begotten the child is bound to provide for its maintenance, if that is necessary.

7. Upon all these grounds, we think that the appeal should be dismissed with costs. We order accordingly.


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