h^^ HIGH COURT OF CHHATTISGARH, BZLASPUR APPELLANT/: (Piajntiff) RESPONDENT/: (Defendant) First Appeal fM) No.61 of 2008 Jagesar Prasad, S/o Tomberlal Sahu aged about 11 years/ Minor through Mother Hemin Bai W/o Tomberlal, R/o Village Sarekha, Post Bhatgaon/ (B) Tahsjl Gunderdehi, Distt. Durg (C.G.) Versus Tomberlal S/o Dakuram Sahu aged about 45 years, R/o Vil!age Sarekha, Post Bhatgaon, (B) Tahsil Gundefdehj, Distt. Durg (C.G.) {First appeal under Section 19 (1) of the Family Courts Act, 1984} Present: Mr. D.N. Prajapati/ counsel forthe appeliant. Mr. C.R. Sahu, counsel for the respondent. Djvjsion Benchs - Hon'ble Mr. T.P. Sharma & Hors'bS®Mr. R.L. Jhanwar, J3 ORAL JUDGMENT (6-11-2009) T.P. Sharma, J: - 1. By this appeal the appellant has chalienged legality & propriety of thejudgment & decree dated 19-3-2008 passed by the lstAdditional Prindpal Judge, Family Court/ Durg (for short 'the Family Court') in Civil Suit No.SlA/2007, whereby the Family Court has dismissed the suit for declaration of the status of Jagesar Prasad, the appellant herein, as son ofthe respondent herein. 2. Judgment & decree are challenged on the ground that the Family Court has not considered the evidence of mother of the appellant sufficient for drawing inference that Jagesar Prasad is son of the respondent and thereby committed illegality. 3, We have heard iearned counsel for the parties and perused the judgment & decree impugned as also the record ofthe Famiiy Court. \ 4. Brief facts giving rise to this appeal,. as per the pleadings of the \ parties/ are that mother of the appellant Hemin Bai was having illicit \ relation with the respondent and as a result of such relation, she '^ T 9 gave birth to the appellant. In the village Panchayat, the respondent has admitted paternity of the appellant and also provided maintenance, but after lapse of 14 months the respondent refused to pay maintenance. Name of the respondent has been mentioned in the birth certificate of the appellant as his father and in caste certificate of Hemin Bai, name of the respondent has been mentioned as husband of Hemin Bai. Suit for declaration of the status of the appellant as son of the respondent has been filed on behalf of the appellant. 5. The respondent has denied the allegation and speciflcaliy pieaded that he has not married mother of the appellant and the appellant is not his son. 6. On the basis of the averments made by the parties, the Family Court after affording opportunity of hearing to the parties has dismissed the claim of the appellant vide the judgment & decree impugned. 7. Learned counsel for the appellant vehemently argued that the agreement dated 21-12-97 (Ex.P-3) executed by father of the respondent is sufficient for drawing inference that mother of the appellant conceived as a result of her physical relation with the respondent and the appellant is son of the respondent. Learned counsel further argued that mother of the appellant has specifically deposed that the respondent is h-er husband & father of the appellant. 8. On the other hand, learned counsel for the respondent vehemently opposed the appeal and submitted that the appell&nt has utterly failed to adduce any evidence to show that the respondent is his father. 9. In order to appreciate the contentions of the parties, we have examined the evidence adduced on behalf of the parties. Mother of the appellant Hemin Bai has examined herself and has filed the birth certificate of the appellant, her caste certificate, decision of the Panchayat and the agreement executed by Dakuram - father of the respondent as Exs.P-1 to P-4. She has deposed that she was having illicit relation with the respondent and as a result of such relation she conceived and gave blrth to the appellant. The respondent \ maintained her for some time, but thereafter he refused to maintain |»N»111|1|»». her. She has also deposed that when she was pregnant of about 8 months, a meeting was convened. lO.Per contra, the respondent has deposed that he was not having relation with Hemin Bai and he is not father of the appellant. Ex.P-3 the alleged agreement, bears that it was executed by Dakuram, father of the respondent, but for the reasons best known to the appellant, the appellant has not examined Dakuram or even he has not examined any member of the Panchayat to prove Ex.P-3. Parties have examined themselves only. The allegation made by mother of the appellant has been spedfically denied by the respondent, but in spite of having opportunity to adduce evidence to prove Exs.P-1 to P-3, for the reasons best known to the appellant, the appellant has not examined the witnesses of Exs.P-1 to P-3. This is not the case of legally wedded wife or lawful marriage, but according to the statement of Hemin Bai, she was having illictt relation with the respondent/ the respondent agreed to marry her and also maintained her for some time. This fact has not been admitted by the respondent. The appellant has not adduced any evidence. ll.In support of the aforesaid facts, burden to prove the fact that the appellant is son ofthe respondent was on the appellant. In absence of any proof to this effect, the Family Court has dismissed the claim of the appellant We do not find any illegality and infirmity in the judgment impugned warranting any interference in this appeal. The appeat is, therefore, liable to be dismissed and It is hereby dismissed. No order as to costs. 12.0ecree be drawn up accordingly. Soma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge