* THE HONOURABLE SRI JUSTICE B.N. RAO NALLA + CRIMINAL REVISION CASE No.1940 OF 2007 % Date: 04-11-2011 # Chy. Vulla Puja, minor, rep. by Ragati Arenna .. Petitioner v. $ Vulla Konda & another .. Respondents ! Counsel for the petitioner : Smt. P. Vijaya Kumari ^ Counsel for respondent No.1 : Ms. Goda Ramalakshmi Counsel for respondent No.2 : Public Prosecutor < GIST: > HEAD NOTE: ? CASES REFERRED: C/15 THE HON'BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.1940 OF 2007 JUDGMENT: This Criminal Revision Case is filed by the petitioner – Chy. Vulla Puja assailing the order in M.C. No.270 of 2003 dated 29-09- 2006 passed by the learned Judge, Family Court, Visakhapatnam, refusing to grant maintenance to her against respondent No.1. 2. Originally, M.C. No.270 of 2003 was filed by Smt. Vulla Appalakonda alias Manga, who is mother of the revision petitioner, and the revision petitioner against the respondent Vulla Konda. However, since the revision petitioner was minor aged about two years, she was represented by her natural mother. Further, it appears that after pronouncement of the order in M.C. No.270 of 2003, mother of the revision petitioner died. Hence, now this revision is filed by the revision petitioner being represented by her maternal uncle Ragati Arenna. 3. For the sake of convenience, the parties are referred to as arrayed in the M.C. before the trial Court, where the mother of the revision petitioner, who is no more, and the revision petitioner are petitioner Nos.1 and 2 respectively and respondent No.1 herein is the respondent therein. Petitioner Nos.1 and 2 are wife and daughter respectively of the respondent. 4. The case of the petitioners before the trail Court, in brief, is as under: The marriage of petitioner No.1 with the respondent took place on 11-05-1993 at Pukkallapalem, Visakhapatnam District. The marriage between the spouses was consummated and they lived happily for sometime. But, as petitioner No.1 did not get pregnancy for a long period, her parents-in-law harassed her and threatened her with dire consequences stating that they would perform another marriage to the respondent if she is unable to give birth to a child and bring additional dowry. Thereafter, in 2001, petitioner No.1 became pregnant and gave birth to petitioner No.2 on 02-02-2002. Even during the period of pregnancy, respondent and his parents did not provide sufficient meal to her and after delivery of the child also, they did not take her to the matrimonial home. Then, after 11 months, petitioner No.1 herself went to her matrimonial house and joined the respondent. That on 02-02-2003, respondent and his parents performed the first birth day ceremony of petitioner No.2 and immediately on the next day i.e. on 03-02-2003, they necked out the petitioners from their house and from then respondent completely neglected the petitioners to maintain them. The negotiations made by petitioner No.1 for reunion with the respondent went in vain and the respondent filed O.P. No.127 of 2003 seeking divorce on the ground of adultery and the same is pending. Petitioners have no source of income and are suffering from starvation. The respondent is a fisherman and earning more than Rs.8,000/- per month and having movable and immovable properties. Hence, petitioners prayed for maintenance at Rs.3,000/- per month to each of them. 5. The respondent filed his counter denying the case of the petitioners except admitting his relationship with petitioner No.1. It is his case that petitioner No.1 has illicit intimacy with one Cheepulla Narasinga Rao, who is her immediate neighbour at her parents house, even before her marriage with him (respondent) and she is leading adulterous life with that Narsinga Rao and got pregnancy through him and gave birth to petitioner No.2. Further, once he found them in compromising position at her parents’ house. Then, he raised a dispute before the caste elders, where petitioner No.1 and said Narasinga Rao agreed the fact of their intimacy and also giving birth of petitioner No.2 through that person. Therefore, it is the case of the respondent that as petitioner No.1 is leading adulterous life and petitioner No.2 is not his legitimate child, they have no legal right to claim maintenance from him and he has no responsibility to maintain them. 6. To prove her case, petitioner No.1 got herself examined as PW.1 but no documents were marked. On behalf of the respondent, he got himself examined as RW.1 and also one Ambeti Simhadri as RW.2 and got marked Ex.R-1 letter. However, since RW.2 failed to turn up for cross-examination, his evidence in chief-examination was eschewed. 7. The trial Court after considering the evidence available on record and basing on Ex.R-1 letter said to have been written by petitioner No.1 dismissed the M.C. refusing to grant maintenance to both the petitioners observing that since the respondent did not take steps for D.N.A. test to determine the paternity of petitioner No.2, it cannot be said that she was born through him and the failure on the part of petitioner No.1 in taking steps to examine the person with whom she is said to be having illicit intimacy supports the case of the respondent that she has intimacy with that person and that her signature on Ex.R-1, where she agreed her illegal intimacy with one Narsinga Rao and birth of petitioner No.2 through that person, is tallying with her admitted signatures on the petition and vakalat, as such, they are not entitled to any maintenance from the respondent. Challenging the same, petitioner No.2 filed this revision. 8. Heard the learned counsel for petitioner No.2 (revision petitioner) as well as the learned Additional Public Prosecutor and perused the material available on record. 9. Now the contention of the learned counsel for petitioner No.2 is that the trial Court relying on Ex.R-1 letter, which is not admissible in law and execution of which is also denied by petitioner No.1, erroneously found her to be leading adulterous life with one Narsinga Rao and petitioner No.2 is not the legitimate child of the respondent though he failed to take steps for determination of the paternity of petitioner No.2, and held that both the petitioners are not entitled to maintenance. Her further contention is that now petitioner No.1 is no more and petitioner No.2 is under the custody of her maternal uncle Ragati Arenna, and he is also refusing to maintain her, and therefore, now petitioner No.2 became an orphan. 10. The learned Additional Public Prosecutor supporting the impugned order submits that the trial Court rightly found that both the petitioners are not entitled to maintenance from the respondent as petitioner No.1 was leading adulterous life and petitioner No.2 is not the legitimate child of the respondent, as such, there are no grounds to interfere with the same, and therefore, the revision is liable to be dismissed. 11. Now the point that arises for consideration is whether the impugned order suffers from any error, infirmities or illegalities ? 12. Since petitioner No.1 is no more, there is no need to go in to the question of her leading adulterous life. 13. Now the only question that remains to be considered is whether petitioner No.2 is illegitimate child of the respondent, and, if so, is she not entitled to maintenance from the respondent? 14. There is no dispute that petitioner No.1 is legally married wife of the respondent. In view of the same, the burden of proving the paternity of petitioner No.2 lies on the respondent to show that she is not his legitimate child, but he did not take any steps to conduct D.N.A. test to prove the same. 15. The only document, on which reliance is placed by the trial Court, is Ex.R-1. The case of the respondent is that Ex.R-1 was executed by petitioner No.1 before their village panchayat. The contents of Ex.R-1 shows that it was executed by petitioner No.1 admitting that due to depression that she has no children for long time, she started illicit relationship with one Cheepulla Narsinga Rao and gave birth to petitioner No.2 through him and knowing the same, respondent did not allow her to join him and after her efforts to join the respondent in vain, she left him and living with Narsinga Rao and she has no objection for giving divorce to the respondent. To prove Ex.R-1, respondent examined himself and one Ambeti Simhadri, who is a witness to that document, as RW.2. 16. However, petitioner No.1 denied execution of Ex.R-1. Ex.R-1 did not contain any date also. Even RW.2, who was said to be present at the time of mediation and supported the case of the respondent in his chief-examination, did not turn up to face the cross- examination, and therefore, his evidence was eschewed. It appears that Ex.R-1 was drafted by one V. Appala Raju and there are four witnesses to the document. However, neither the scribe of Ex.R-1 nor witnesses were examined. Then, the only evidence remains to be available to prove Ex.R-1 is of the respondent which cannot be believed without the corroborative evidence. Coming to the finding of the trial Court that the signature of petitioner No.1 on Ex.R-1 is tallying with her admitted signatures on her petition is also an error, since there is much variance between those signatures and the same is very clear to one’s naked eye. Thus, there is no evidentiary value to Ex.R-1. Even otherwise also, Ex.R-1 cannot be taken into consideration as the same was denied by petitioner No.1. Further, respondent has not taken any steps to conduct D.N.A. test to determine the paternity of petitioner No.2 to show that she is not his legitimate child. Thus, even there is no evidence on record to show that petitioner No.2 is an illegitimate child. 17. Further, the trial Court failed to consider the fact that even the illegitimate children are also entitled to maintenance as per Section 125 Cr.P.C., which reads as under: “Order for maintenance of wives, children and parents:- (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:” In view of the above provision, it is clear that even the illegitimate children are also entitled to maintenance. Though the learned Additional Public Prosecutor has contended that illegitimate children are not entitled to maintenance, he failed to bring any material before this Court to show the same. 18. For the aforesaid reasons, this Court is of the view that petitioner No.2 is legitimate child of the respondent, and, as such, she is entitled to maintenance from the respondent and even otherwise also, the respondent is duty bound to maintain petitioner No.2. Thus, the impugned order suffers from errors and infirmities, as such, the same is liable to be set aside. 19. Coming to the quantum of compensation, considering the age of petitioner No.2 and present day situation, it is ordered that the respondent shall pay maintenance to her at Rs.1,000/- (Rupees one thousand only) per month on or before 5th of each calendar month, from the date of M.C. before the trial Court. The respondent shall deposit the arrears of maintenance in to the trial Court or into the savings bank account of petitioner No.2 within a period of two months from the date of this order. Petitioner No.2 is at liberty to seek enhancement of maintenance from time to time if she is so advised. 20. With the above directions and observations, the Criminal Revision Case is allowed setting aside the order in M.C. No.270 of 2003 dated 29-09-2006 passed by the Family Court, Visakhapatnam. __________________ B.N. RAO NALLA, J Date:04-11-2011. NOTE: L.R. Copy to be marked. (B/O) PV