DUKHTARJAHAN versus MOHAMMED FAROOQ

Citation: [1987] 1 S.C.R. 1086 · Decided: 20-01-1987 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
DUKHTARJAHAN 
v. 
MOHAMMED FAROOQ 
JANUARY 20, 1987 
[A.P. SEN AND S. NATARAJAN, JJ.] 
A Code of Criminal Procedure, 1973, section 125, nature of pro-
ceedings under. 
B. High Court's jurisdiction under section 482 of the Code of 
Criminal Procedure-Whether could interfere with the concurrent find-
C ings of the courts below granting maintenance to the child/wife. 
C. Evidence Act, section 112-Rule of law under section 112 as to 
the legitimacy or otherwise of the child-Whether the factors that the 
child was born within seven months' time from the date .of the marriage 
D and that the illiterate mother had deposed the child was not born prema-
turely lead to the inference of suppression of the factum of the mother 
being enceinte at the time of marriage. 
The appeUant and the respondent, who were already related as 
first cousins being the !&sues of two sisters, were married on 11.5.1973. 
E The marriage lasted only for 17 months, since the respondent divorced 
the appeUant on 16.10.1974. When the parties were in wedlock, the 
appeUant delivered a female child on 5.12.1973. After the Respondent 
effected the divorce in October, 1974, the appeUant filed a Petition 
under section 125 Criminal Procedure Code in the Court oftbe Special 
Judicial Magistrate No. 1, Rampur for grant of maintenance of Rs.SO 
F 
G 
p.m. to the child. 
The respondent refuted bis liability to provide maintenance to the 
child on the ground that be was not the father of the child and that the 
child had been conceived even before marriage and the appeUant had 
suppressed the fact or her being enceinte al the time or the marriage. 
The Trial Magistrate after taking into consideration the evidence 
adduced in the case and the conduct of the parties held that since the 
child had been born when the parents were in wedlock and since the 
respondent had not discarded the wife or disowned the child forthwith 
but had waited for about 10 months to divorce the appeUant, it would be 
H 
reasonable to hold that the child should han been conceived to the 
1086 
) 
r 
DUKHTAR JAHAN v. MOHAMMED FAROOQ 
1087 
respondent and as such he is by law obligated to provide maintenance to A 
the child. He accordingly awarded maintenance to the child 
Rs.30 p.m. 
as against the claim ofRs.50 p.m. 
A Revision Petition preferred against the order of the Magistrate 
to the Sessions Judge, Rampur proved of no avail and.hence the res)!On-
dent filed Criminal Misc. Petition No. 1816of1978 to the High Court or 
Calcutta under section 482 Cr. P.C. for quashing the order or mainte-
nance. A Single Judge of the High Court allowed the petition and 
quashed the order of maintenance in favour of the child, by taldng the 
view that since the child had been born in about 7 months' time from 
the date of marriage and since the child was not claimed to be prema-
turely born it has to be necessarily held that the appellant should have 
.conceived even before she married the respondent and consequently the 
respondent cannot be held to be the father of the child and called upon 
to pay maintenance to it. However the High Court granted a certificate 
under Article 134 (l)(c) read with Article 134A of the Constitution to 
the appellant to prefer an appeal for consideration of a question of law 
formulated as "Whether, in an application under Section 482 Cr. P.C. 
the High Court can interfere with concurrent findings rendered by the 
courts below." 
Allowing the appeal, the Court, 
B 
c 
D 
HELD I.I Proceedings under section 125 of the Code of Crimi-
E 
nal Procedure are of a summary nature and are intended to enable 
destitute wives and children, the latter whe.ther they are legitimate or 
illegitimate, to get maintenance in a speedy manner. In the instant case; 
the order of the High Court of Calcutta quashing the order of mainte• 
nance in favour of the child by setting aside the concurrent findings 
rendered by the Courts below is not in order. [1094E-F] 
F 
1.2 The proper course for the High Court, even if entitled to 
interfere with the concurrent findings of the courts below in exercise of 
its powers under Section 482 Cr. P. C., should have been to sustain the 
order of maintenance and direct the respondent to seek an appropriate 
declaration in the Civil Court, after a full-fledged trial, that the child was G 
not born to him and as such he is not legally liable to maintainit. [1094i>-E] 
1.3 The facts of the case and the conduct of the parties and the 
attendant circumstanc

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