1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 68 OF 2007 Miss Smita Halarnkar through her mother Mrs. Gokula Fadte, major, divorcee, Residing at RHC Mandur Quarters No.6, Neura Goa. .... Petitioner V/s Mr. Mahendra Halarnkar, major, married, resident of B.B. Road, Alto Porvorim, Bardez Goa. .... Respondent Mr. S.M. Singbal, Advocate for the Petitioner. Mr. R. Menezes, Advocate for the Respondent. CORAM : N.A. BRITTO, J. DATE : 13th AUGUST, 2008 ORAL JUDGMENT : The petitioner, a child born on 10/05/1999 to Smt. Gokula Fadte through her said mother, claimed maintenance of Rs. 500/- per month on the ground that the respondent who was distantly related to her mother was religiously married to her but had refused to register a civil marriage. The said application was allowed by the learned Chief Judicial Magistrate by order dated 27/10/2006. That order came to be set aside in revision by the learned Additional Sessions Judge by his order dated 31/08/2007. 2. The learned Chief Judicial Magistrate was of the opinion, and in my view, rightly that the failure to prove the marriage between the petitioner's 2 mother and the respondent was no ground to discard her entire evidence. That is in tune with what the Apex Court has stated in Sumitra Devi (infra). The learned Chief Judicial Magistrate also noted that the respondent did not have the courage to step in the witness box to falsify the case of the petitioner and in that regard referred to two decisions, one of this Court in the case of Martand Pandharinath Chaudhari V/s. Radhabai Krishnarao Deshmukh (AIR 1931 Bom. 97) and the other in the case of Pranballav Saha V/s. Tulsibala Dassi (AIR 1958 Calcutta 713). In the first case this Court has stated that: It is the boundant duty of the party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case. In the second case, the Calcutta High Court has held that: The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her showed that the facts could not be denied and what was prima facie case against her became conclusive proof by her failure to deny. The learned Chief Judicial Magistrate applying the said principles drew adverse inference against the respondent for not stepping in the witness box to support his claim made in the reply, and, after considering the other evidence led by the petitioner, through her mother, proceeded to award maintenance at the rate of Rs. 500/- per month. 3 3. The learned Additional Sessions Judge, on the other hand, concluded that this was not a case to draw adverse inference against the respondent for not stepping in the witness box to give his evidence because it was for the plaintiff to satisfy the Court prima facie that the plaintiff had made out a case and since the petitioner had failed to prove that the petitioner was the child begotten out of the cohabitation with the respondent, no adverse inference could be drawn against the respondent. 4. Both the Courts below had referred to the decision in the case of Smt. Kalpana Biswas V/s. Sukamal Biswas @ Kamal (2004 Cr.L.J. NOC 166 (Calcutta)) in support of the proposition that the standard of proof of marriage in proceedings under Section 125 is not as strict as it is required in a trial for an offence under Section 494 of IPC. Apparently that was a case where paternity of the child was accepted by drawing a presumption from an entry in School Register wherein the name of the opposite party was shown as father of child of the applicant. However, what is relevant to be noted is that both Courts did not spell out as to what would be standard of proof required to prove a case under Section 125 of the Code of Criminal Procedure, 1973. The proceedings under Section 125 are placed in the said Code only with a view to provide a quick and summary remedy. The nature of the proceeding is civil and in case any authority is required for this proposition reference could be made to the case of Nand Lal Misra V/s 4 Kanhaiya Lal Misra (AIR 1960 SC 882) wherein the Apex Court has held that the proceedings are of civil nature. It would also be relevant to refer to some other observations of the Apex Court wherein referring to Section 488 of the Code (now Section 125), the Apex Court has stated that: It is a self contained Code which recognises the right of a child or wife to claim maintenance and prescribes the procedure to be followed. An illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance, if the putative father having sufficient means neglects or refuses to maintain it and the basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy and this Section by conferring jurisdiction on the Magistrate to make an allowance for the maintenance of the child, by necessary implication, confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent and it is the duty of the Court, before making the order, to find definitely, though in a summary manner, the paternity of the child. 5. As far as the nature of proof required, to prove a case of illegitimacy of a child, the law is also well settled. This Court in Nusaram Shambhaji Parishe V/s. Baba & Anr. (1992 BLR 642 Vol. 94) has stated that: It is now well established that in a case of a present nature where paternity of an illegitimate child is in dispute, it is necessary that the word of mother of an illegitimate child should be corroborated by some independent evidence, though consisting of circumstantial nature. In Master Leonard Mark Hillario V/s. Shri Seby Hillario (2007 ALL MR (Cri.) 1649) this Court after considering several judgments observed that the onus to prove that a child who claims maintenance from the alleged father, is upon the child. In other words, when a child is born out of 5 wedlock, the onus lies squarely on the mother, to establish the paternity of such 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. There can also be no dispute that the disputed paternity cannot be determined on the evidence of the mother alone and the rule of prudence requires that her evidence should be corroborated. Corroborative evidence is required in such cases in order to protect men against unfounded charges which might be easily made if the evidence of the mother is to be accepted without corroboration. However, it must be stated that there can be no hard and fast rule that a particular type of corroboration would be necessary in all such cases and what would be the corroborative evidence which will be acceptable will depend on the facts and circumstances of each case. Nevertheless, the nature of proceedings being of civil nature, the onus will have to be discharged on the balance of probabilities. 6. There is another controversy which is required to be referred to and that is as regards drawing of adverse inference against the respondent for not subjecting himself for DNA finger printing. Admittedly, both the Courts below have not drawn adverse inference against the respondent and, being so, I do not see any reason why such a controversy at all is raised in this petition when it is also not the case of the petitioner that the case requires a remand. It appears that both the parties, i.e the mother and the respondent were willing 6 to and in fact did go to GMC (Goa Medical College) with a view to undergo the said test, but there were no sufficient facilities available in GMC to do the said test. This matter came to an end with a order of the learned Magistrate dated 31/03/2001. In the said order, the learned Magistrate observed that the unwillingness of the respondent to go to Hyderabad would not be ground to draw adverse inference against him. That order appears to have been challenged before the Court of Sessions and the learned Additional Sessions Judge observed that once the respondent had given his consent to give his blood sample, he had to go to Hyderabad and the expenditure for the same needed to be provided by the petitioner. Although it appears that the petitioner deposited a sum of Rs. 16,530/- much later towards the expenses of the said test, it appears that the respondent was not ready to go to Hyderabad to undergo the said test and it is stated on behalf of the respondent that he could not go to Hyderabad because of unavailability of leave and the matter was never pursued further thereafter. 7. Shri Singbal, the learned Counsel on behalf of the petitioner has submitted that the order of the Magistrate was a reasoned order and therefore the learned Additional Sessions Judge could not have interfered with the same in revision and in this context learned Counsel has placed reliance on the case Pathumma and Anr. V/s. Muhammad (AIR 1986 SC 1436) wherein the Apex Court has held that the High Court in its revisional 7 jurisdiction was not justified in substituting its own view for that of the learned Magistrate on a question of fact. The Apex Court held that whether the applicant was the married wife or whether the child was illegitimate child were preeminently questions of fact. In the case of Pravati Rani Sahood & Anr. V/s. Bishnupada Sahoo (2002 (10) SCC 510), the Apex Court held that: Where Magistrate finds marriage not proved and also dismisses the claim of paternity, High Court ought not to entertain the revision petition, re-evaluate the evidence and then come to its own decision as to whether the Magistrate's findings and conclusions are legally sustainable or not, while at the same time bearing in mind the differences in approach necessary for a revision and an appeal. 8. Shri Singbal, the learned Counsel on behalf of the petitioner has also placed reliance on the case of Sumitra Devi V/s. Bhikan Choudhary (AIR 1985 SC 765) wherein it is stated that even an illegitimate minor child is entitled to maintenance. In fact, that is what Section 125 of the Code itself provides. 9. The learned Sessions Judge in reversing order of the learned Chief Judicial Magistrate proceeded as if he was hearing the matter in appeal and came to his own conclusion that the petitioner had miserably failed to prove the legal requirements that there was either intimate relationship of the applicant's mother with the respondent and that it was also the burden of the said mother to produce evidence of factum of marriage and which was not 8 established by any evidence. It is not the case of the learned Additional Sessions Judge that the impugned order suffered from any perversity or gross illegality or that there was any other compelling reason for him to interfere with the said order. The learned Additional Sessions Judge held that the petitioner's mother had failed to prove that the petitioner was the child of the respondent. 10. There is no doubt that the petitioner had produced a medical record Exhibit PW1/B wherein there was a statement that she was married four months back. However, the fact that she had no living issue of her previous marriage to Srikant Wolwoikar as mentioned therein was not at all material to decide the controversy. All the said certificate showed that she had no living issue and the history given by her had otherwise no relevance at all. 11. In support of her case, the petitioner has produced two other documents namely the complaint filed by the mother against the respondent and which is at Exhibit PW1/C. Counsel on behalf of the petitioner submits that since the police took no action on the said complaint, the petitioner's mother has filed a private complaint under Section 417 IPC and the same is pending trial. The petitioner had also filed the birth certificate of the petitioner wherein the petitioner was shown as the child of the mother and the respondent. Counsel on behalf of the respondent submits that the said 9 certificate was a certificate prepared at the instance of the mother itself. It may be so. However, the fact remains that till date the said certificate is in full force and effect and the respondent has not challenged the same. The petitioner had also examined PW2/Avinash Gavade who as was expected of him, had stated that he did not know who was the father of the child, but he had seen a person moving with the mother of the petitioner and he had seen him once in a hospital and once on motorcycle with the mother of the petitioner. He had also seen the petitioner's mother and the respondent near the quarters where petitioner's mother was residing and it is his case that he did not know his name and the petitioner's mother being asked, the petitioner's mother told him that he was her fiancee and his name was Mahendra Halarnkar i.e. respondent herein. The cross-examination of the said witness did not bring out any facts to show that the said witness was untruthful. As already stated, the proceedings between the parties were of civil nature and certainly it could not be contended that the evidence led by the applicants did not make out a prima facie case. The applicant's mother might have not been able to prove that there was any religious marriage between both of them but she had categorically stated that the child was that of the respondent. She had produced the said complaint filed by her against him to the police alleging that the respondent had induced her to have sexual intercourse with the pretext that he would marry her and thereby she was cheated, and after the child was born to her, she had registered the birth 10 showing the respondent as the father of the petitioner. PW2/Avinash Gavade had seen seen them together more than once. Learned Counsel on behalf of the respondent contends that being a relative, the respondent might have taken the petitioner's mother to the hospital. If that was so, it was incumbent upon him to have stepped in the witness box and explained the situation. The respondent did not step in the witness box and possibly thinking that the petitioner had filed a criminal case against him. As already stated, these were civil proceedings and the applicant had given her evidence and produced two documents besides the evidence of another witness who had seen them going about together. The evidence produced by the petitioner on balance of probabilities was more than sufficient to come to the conclusion that the respondent was the father of the petitioner. In the face of the said evidence, the respondent took a non persuasive stand. He did not step in the witness box to give his side of the story. In other words, he had no defence to make. In addition to what this Court as well as the Calcutta High Court have stated in the decisions cited herein above, the Apex Court has also stated in the case of Gopal Krishnaji Ketkar V/s. Mohamed Haji Latif & Ors. (AIR 1968 SC 1413) that when a party who is in possession of best evidence which throws light on the issues in controversy withholds it, the Court ought to draw an adverse inference against him, notwithstanding that the onus of proof does not lie on him. This is a fit case to draw adverse inference against the respondent. 11 12. The learned trial Court after assessing the evidence and relying on various decisions had come to the conclusion that the respondent was the father of the petitioner and in fact had even observed that the interestedness of their evidence was not even suggested to them nor the respondent had shown any hostility with the petitioner's mother or her family. The learned trial Court had accepted the said evidence. There was no reason for the learned Additional Sessions Judge in revision to discard the same. 13. Consequently, this revision needs to succeed. Hence, the order of the learned revisional Court is set aside and that of the learned Chief Judicial Magistrate is restored. Needless to say the complaint case will be decided by the learned Magistrate on its own merits and without being influenced by the observations made herein. N.A. BRITTO, J. NH/-