Parvati Rani Rai Sahoo & Anr. Vs. Bishnupada Sahoo
EmailAppeal: Criminal Appeal No. 830 of 2001
(Arising out of S.L.P. (Crl.) 1044 of 1997)
(Arising out of S.L.P. (Crl.) 1044 of 1997)
Petitioner: Parvati Rani Rai Sahoo & Anr.
Respondent: Bishnupada Sahoo
Apeal: Criminal Appeal No. 830 of 2001
(Arising out of S.L.P. (Crl.) 1044 of 1997)
(Arising out of S.L.P. (Crl.) 1044 of 1997)
Judges: K.T. THOMAS & S.N. VARIAVA, JJ.
Date of Judgment: Aug 17, 2001
Head Note:
CRIMINAL LAW/PRACTICE AND PROCEDURE
Criminal Procedure Code, 1973
Sections 125, 397, 401 – Maintenance – Scope and object – Husband denying marriage and paternity of child – Revision against the orders of magistrate, dismissed summarily – Justification. Held that revision should not have been dismissed summarily – Appeal allowed and revision restored to High Court. Pathumma’s and Santosh’s case held distinguishable.
Held:
Section 125 of the Crl. P.C. is intended to curtail destitution and also to ameliorate orphancy. The High Courts shall not interfere with such fact findings. But that principle cannot be imported in the present case where a child happened to be bastardised as a consequence of the order passed by the Magistrate and the claimant was in effect found to be a woman or unvirtuous morality. In such a situation the High Court should have entertained revision and re-evaluated the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not. (Para 5)
Cases Reffered:
1. Santosh (Smt.) v. Naresh Pal ( (1998) 8 S.C.C. 447 ) (Para 4)
2. Pathumma and another v. Muhammad ( (1996) 2 S.C.C. 585) (Para 4)
2. Pathumma and another v. Muhammad ( (1996) 2 S.C.C. 585) (Para 4)
JUDGEMENT:
ORDER
1. Leave granted.
2. In this case, 1st appellant filed a claim for maintenance under section 125 of the Code of Criminal Procedure for herself and her child. Respondent denied the marriage set up by the 1st appellant. He also disowned the paternity of the child. Both sides adduced evidence by examining a number of witnesses. The magistrate evaluated the evidence and reached a conclusion that the 1st appellant failed to prove that there was a valid marriage between her and the husband. Regarding paternity of the child also, the magistrate found against the claim made by the 1st appellant. Consequently the claim was dismissed.
3. Challenging the above order of the magistrate the 1st appellant moved the High Court in revision. But unfortunately the High Court refused to entertain the revision at all and dismissed the application for revision summarily as per the impugned order.
4. Learned counsel for the respondent tried to support the impugned order with the help of two decisions of this Court in Pathumma and another v. Muhammad ( (1996) 2 S.C.C. 585) and Santosh (Smt.) v. Naresh Pal ( (1998) 8 S.C.C. 447 ). He contended that it is not open to the High Court in revision to re-examine the evidence for the purpose of arriving at a different conclusion.
5. We may point out that the aforesaid two decisions related to facts which are clearly distinguishable. In those cases the trial courts found the marriage set up by the claimants to be valid and upheld the paternity of the children as claimed by their mothers. Section 125 of the Crl. P.C. is intended to curtail destitution and also to ameliorate orphancy. The High Courts should be slow to interfere with a positive finding in favour of marriage and paternity of a child. Hence in such instances this Court has pointed out that High Courts shall not interfere with such fact findings. But that principle cannot be imported in the present case where a child happened to be bastardised as a consequence of the order passed by the Magistrate and the claimant was in effect found to be a woman or unvirtuous morality. In such a situation the High Court should have entertained revision and re-evaluated the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not. While maintaining the difference in the overall approach between an appeal and a revision, the jurisdiction of the court has to be exercised by the High Court in revision.
6. The impugned order summarily dismissing the application for revision shows that the jurisdiction has not even been invoked by the High Court. The impugned order cannot, therefore, be sustained. Consequently, we set aside the order and remit the revision to the High Court for disposal of it afresh in accordance with law.
7. This appeal is disposed of accordingly.
1. Leave granted.
2. In this case, 1st appellant filed a claim for maintenance under section 125 of the Code of Criminal Procedure for herself and her child. Respondent denied the marriage set up by the 1st appellant. He also disowned the paternity of the child. Both sides adduced evidence by examining a number of witnesses. The magistrate evaluated the evidence and reached a conclusion that the 1st appellant failed to prove that there was a valid marriage between her and the husband. Regarding paternity of the child also, the magistrate found against the claim made by the 1st appellant. Consequently the claim was dismissed.
3. Challenging the above order of the magistrate the 1st appellant moved the High Court in revision. But unfortunately the High Court refused to entertain the revision at all and dismissed the application for revision summarily as per the impugned order.
4. Learned counsel for the respondent tried to support the impugned order with the help of two decisions of this Court in Pathumma and another v. Muhammad ( (1996) 2 S.C.C. 585) and Santosh (Smt.) v. Naresh Pal ( (1998) 8 S.C.C. 447 ). He contended that it is not open to the High Court in revision to re-examine the evidence for the purpose of arriving at a different conclusion.
5. We may point out that the aforesaid two decisions related to facts which are clearly distinguishable. In those cases the trial courts found the marriage set up by the claimants to be valid and upheld the paternity of the children as claimed by their mothers. Section 125 of the Crl. P.C. is intended to curtail destitution and also to ameliorate orphancy. The High Courts should be slow to interfere with a positive finding in favour of marriage and paternity of a child. Hence in such instances this Court has pointed out that High Courts shall not interfere with such fact findings. But that principle cannot be imported in the present case where a child happened to be bastardised as a consequence of the order passed by the Magistrate and the claimant was in effect found to be a woman or unvirtuous morality. In such a situation the High Court should have entertained revision and re-evaluated the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not. While maintaining the difference in the overall approach between an appeal and a revision, the jurisdiction of the court has to be exercised by the High Court in revision.
6. The impugned order summarily dismissing the application for revision shows that the jurisdiction has not even been invoked by the High Court. The impugned order cannot, therefore, be sustained. Consequently, we set aside the order and remit the revision to the High Court for disposal of it afresh in accordance with law.
7. This appeal is disposed of accordingly.
