PATHUMMA AND ANR versus MOHAMMAD

Citation: [1988] 2 S.C.R. 731 · Decided: 17-04-1986 · Supreme Court of India · Bench: V. KHALID · Disposal: Appeal(s) allowed

Judgment (excerpt)

731 
PAl'IDIIA & AIL 
v. 
APRIL 17, 1986 
[V. KHALID AND MURARI MOHON DUTT, JJ.] 
Revisional jurisdiction of the High Court under section 
-,).. 401 
of the Criminal 
Procedure Code, 
1973, 
scope of -
Reappreciation of evidence and ~~Jb8tituting its own view by 
the High Court is impermissible. 
___ \ _ 
In the Criminal application filed by the appellants 
· 
under section 125 of the Code of Criminal Procedure, the 
... 
i:;--
-~ Trial Court on an appreciation of the evidence accepted the 
defence of the respondent that the first appellant was not his 
wife but held that the second appellant was his illegitimate 
child and directed the payment of Rs. 25 per lk»nth towards 
maintenance of the child. Two revision petitions preferred by 
both the parties before the Kerala High Court were heard 
together. Allowing the respondents' 
petition and dismissing 
the appellants' petition, the Court held that the second 
, appellant was not the child of the respondent. Hence the 
~appeals by special leave. 
Allowing Criminal Appeal No. 462A/81 and dislllissing Crl. 
Appeal No. 463/81, the Court, 
l 
HILD : 1. The High Court in its criminal jurisdiction 
under section 401 of the Code of Criminal Procedure was not 
\justified in making a re-assessment of the evidence and in 
'substituting its own view for that of the trial Judge pn a 
question of fact. The questions whether the appellant No. 1 
was the married wife of the respondent and whether the 
appellant _ No. 2 was the legitimate or Ulegitiute child of 
the respondent are pre-eminently questions of fact. [733 P-G] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
Nos. 
1- 462A-i&63 of 1981. 
From the Judgment and Order dated 21.10.1980 of the 
Kerala High Court in Crl. R.P. Nos. 188 and 204 of 1979. 
A 
B 
c 
D 
E 
F 
G 
H 
732 
SUPREME COURT REPORTS 
[19861 2 S.C.R. 
A 
E.M.s. Anam for the Appellants. 
Nemo for the Respondents. 
The Judgment of the Court was delivered by 
B 
00'1'!', .J. These two appeals by special leave have been 
preferred by the appellants against the judgment of the High 
Court of I<erala dismissing the Criminal Revision Petition of~­
the appellants and allowing that of the respondent, both 
arising out of a proceeding under section 125 of the Code of 
·' 
Criminal Procedure instituted by the appellants. 
-
c 
D 
E 
F 
The appellants filed an application before the Judicial -,--
Magistrate, First Class, Pattambi, under section 125 of the • 
~ 
Code of Criminal Procedure. The said application was numbered y 
as M.C. No. 5 of 1978. In the application, it was alleged that 
the respondent married the appellant No. 1, Pathumma, 6 years 
ago as per Muslim rites and the respondent resided with her as 
husband and wife. When she was carrying two oont~, she was 
taken to her father's house by the respondent. Thereafter, the 
respondent left her there and did not enquire about her. 
Subsequently, the respondent divorced her without, however, 
making any payment to her of any Mahar or other compensation •. 1 
It was further alleged that the appellant No. 2 Sulekha, a 
minor daughter, was born out of the wedlock. The appellants 
had no means of livelihood and accordingly, they claimed 
maintenance respectively at the rate of Rs. 100 and Rs. 50 per 
month from the respondent. The application was opposed by the t. 
respondent. The case of the respondent was that he never 
married the appellant No~ 1, and that the appellant No. 2 was 
not his child, legitimate or illegitimate. 
f 
The learned Magistrate by his order dated March 24, 1979 
came to the finding that the marriage of the respondent with 
the appellant No. 1, as alleged, was not proved and, as such, 
G 
the appellant No. 1 was not the wife of the respondent. The 
learned Magistrate, however, held that the appellant No. 2 was 
the illegitimate child of the respondent. In that view of the 
matter, the learned Magistrate directed the respondent to pay ~ 
maintenance to the appellant No. 2 at the rate of Rs. 25 per 
month from the date of the application under section 125 Cr. 
H 
P.C. 
PATHUMMA v. MUHAMMAD 
[DUIT, J.] 
733 
. 
Against 
the order of the learned Magistrate, the 
~appellants filed a revision petition being Criminal R.P. No. 
204 of 1979 before the High Court of Kerala in so far as it 
refused the claim of the appellant No. 1 for maintenance. The 
respondent also filed another petition being Criminal R.P. No. 
A 
188 of 1979 against the order of the learned Magistrate 
B 
directing payment of ma

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