HIGH COURT OF CHHAmSGARH AT BILASPUR Cr.M.P. No. 34 OF 2010 PETITIONER VERSUS RESPONDENT Udaybhan, S/o Dharatu Prasad, aged about 29 years, R/o Vfflage Rainanujnagar, Odagi, Police Station Odagi, Tehsil Surajpur, District Surguja (C.G.). Guddu @ Deva, S/o Udaybhan, Aged about 5 years, Miaor, Through Mother Smt. Neetu, F/o Late Kanchan Lal, aged about 20 years, R/o Village Odgi, Police Station Odgi, Tehsil Surajpur, Distt. Surguja (C.G.). PETITIQN UNDER SECTION 482 OF CRIMINAL PROCBDITRE (SB :Hou'ble Mr. T.P.Sharma, J.) Present:- Shri Surfaraj Khaa, Advocate for the petitiouer. Shri D.N, Prajapati, Advocate for the respondent. ORAL- ORDBR (Passed oa 03/02/2011) 1. By fhis petitiou under Section 482 ofthe Code ofCrixniaal Procedure, 1973 (m short 'the Code^ petitioner tias chaUenged fhe legality and pi-opriety of the onler dated 25/4/2009 passed by Secoad Additional Sessions Judge, F.T.C. Surajpur, Surguja (C.G.) iti criminal revision No. 15/2009 afGrming fhe order dated 6/1/09 passed by Judicial Magistrate First Class, Surajpur ia Misc. Crunnial Case No, 62/08 whereby learaed Judicial Magistrate First Class, Surajpur has awarded maintenaace of Rs. 700/- per mouth to the respondent on the gTOund that respondent is iUegitimate child ofthe petitioner, same was challenged before the revisional Coiirt. Whfle revisional Court afiirmed the order of fhe trial Court has disaiissed fhe revision. ^^ssi^^, //sasw:.^.\ l^ggt^t s:-5S5si'S^^ •/- 2. Brief facts necessaiy for disposal of fhis petition, as per claim of the respondent, niofher of the respondent was having iUicit relation wifh fhe petitiouer as a result of such relation she conceived aad gave birth to present respondent. Petitioner is not niauitainiag fhe respondent, on aforesaid ground petition for inauitenance was filed. By filing reply present petitioner has deaied aU aUegation and has speci&caUy denied aay relation wifh the inother of respondent. 3. After providiag an opportunily of hearmg to fhe parties, learued Judicial Magistrate First Class, Surajpur has awarded maiatenaace of Rs. 700/- per inonth to the respondent, same was chaUenged before the revisional Court and revisioaal Court has also afEmied fhe order of fhe trial Court by order uapugned. 4. Leamed counsel for the parties are heard. 5. Order impugned and record ofCourts below perused. 6. Learued counsel for fhe petitioner veheiaently ai^ued that in the present case niofher of respondent is not legally or iUegaUy wedded wife of fhe petitioner. Mother of respondent has not claimed aay long relation with the petitioner, she has not clauned relation with petitioner as one of inonogamy. As per case of the inofher ofi^spoudent, as a result of uitercouise wifh her she conceived at her instance preseut petitioner has been prosecuted for fhe offence punishable under Section 376 of ttie Indiaii Penal Code in which he has acquitted of the charge. Moth.er of the respondent was inarried to one Santosh resident of Baijnathpur aad duriag substaace of her inaiTiage with Santosh respondent was boru. 7. Learued counsel for fhe petitioner further subinits that ia these circumstances only presuaipUon would be possible that present 's^^/' J <e. respondent is a son of Sa&tosh and mother of respondent namely Sint. Neetu and not the son ofpresent petitioner. 8. Leariied counsel for the petitioner placed reliance ia the matter of Chatuibhuj v. Amar1 ia which this Court has held fhat ia case of such aUegation ia absence of evidence relatuig to niofher of respondent, relation of m.0ther of alleged fllegituiiate child with the person against hina laaiatenaace is clamied of virtually one of monogamy, uiauitenaiice cannot be awarded to fhe child ia a suininary proceeding aad parties are required to take recoiu-se before civil Court. 9. On fhe ofher haad, learaed counsel for fhe respondent opposed fhe petition and subinits fhat ia the present case evidence of niofher of respondeat relatuig to monogamy relation with present petitioner is unrebutted. She has lodged Pirst Information Report agamst ttie petitioner and petitioner has been tried for the ofFence punishable uiider Section 376 of ttie Indian Penal Code iu wbich he has acquitted on fhe ground of consent which furtber corroborates the statement of m.0ther ofrespondent PW1 Neetu. 10. Learaed counsel for fhe respondent furtber submits fhat in absence of any evidence agai&st uru'ebutted evidence of inother of respondent relating to nionogaiuy relation of petitioner witli her and previous stateiaent corroboratmg evidence of aiofher of respoudent by awarding maiutenance. Court below has aot cominitted any iUegality. This is not a case tn which mother of respondent has not proved monogamous relation ofTietitioner wifti her. 11. As per attegation and evidence of fhe parties, both the parties have denied the allegation of each ofher. In para-1 of her evidence raother of ' 2009 (3) C.G.L.J. 322 (^. u respondent has deposed that respondent bom as a result of her physical relation wifh prcsent petitioner. Petitioner has cross examined fhis witness in detaU but has not asked aaythiug relatiag to such physical relation. In his evidence present petitioner has denied the relation with mother of respondent. Botti the parties have adduced evidence conta-adictoiy to each other. Mother of respondent has also proved her previous stateinent Ex. P-2 given in judicial proceediug ia previous sessions tnal decided in which petitioner was accused iu which she has been. suggested on behalf of fhe present petitiouer that petitiouer was havuig relation with inofher of respondeut for last one year but she neither reported the inatter nor convened the lueetuig. Suggestion given on behalfofthe petitioner ia Paras-10, 12, 13, 14, 20, 21, 22, 32 clearly reveals that prcsent petitioner was haviag long physical relation wifh mLofh.er of respondent, which substantiaUy corroborated evidence of mother of respondent relatmg to her physical relation with petitioner. This is not a case tu which inother of respondent has not adduced definite evidence relating to her nionogamous relation with petitioner. 12. Defuiitely, as held ia case of Chaturbhuj (Supra) iii case of causal physical relation and iu absence of prove of inonogamous relation, child is not entitled for maintenance ia summaiy proceediug uiider Section 125 ofthe Code ofCrimmal Procedure, 1973 but ia ftie present case, uirrebutted evidence of niofher of respondent coupled wifh her pervious statenient Ex. P-2 is sufficient to prove fhe fact that relation of mother of respondent wifh petitioner was one of inonogamy and as a result of such relation, she conceived aad gave birth to respondent. On fhe aforesaid grounds, bofh fhe Courts below have awarded -5- ^. niauitenance to respondent, WhUe awardiug such iiiamtenance both fhe Courts below have not conunitted any fllegality requiring aay uiterference ia exercise of extraordiuaiy iaherent jurisdiction unless same is quashed by coiupetent civil foruin. Cousequently, petition is Uable to be disinissed and is hereby disiaissed. Sd/- T.P. Sharma Judge