'4,z PETITIONER HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL REVISION No. 480 OF 2006 Khemlal, agecl about 24 years s/ o Shri. Nirbhay Gond, Occupation Agiiculture, Resident of Village Barbaspzu', PoMce Station Gatapar, Talisil Khairagarh, Disuict Rajnaadgaon (C,G.), RESPONDBNT VERSUS Mmor Maiigal, aged about 07 years, Son of Shri Khehnal Goncl, fhrough his natural guardian Mofher Snit. Savana Bai D/o Shri Tetakuraia Saliu, Resident of Village Barbaspur, PoUce Station Gatap£ir, Tahsil Khairagarh, District Rajnaxidgaon (C.G.). CmMINAL RSVISION UHDER SECTION 397 READ WITH 401 OF THB CODB OF CRIMINAL PROCBDURE, 1973. (SB :Hoffl?ble Mr. T.P.Sharma, J.) Present:- Shri P,P. Sahu, Advocate for the applicant/petitioner. Shri D.L. Prajapati, Advocate for fhe respondent. ORAL- ORDER (Passed oa 18/03/2010) By this criminal revision petitioner has challenged the legality aiid propriety of fhe order dated 16/5/06 passed by the Additional Sessions Judge, Khairagarh, District Rajnandgaon in criminal revision No. 139/2005 whereby while reversing the order dismissing the maintenance application filed by respondent dated 12/5/05 passed by the Additional Chief Judieial Magistrate, Kliairagarh, District Rajnandgaon in Misc. Criminal case No. 15/1998 has awarded maintenance of Rs. 300/~ per inonth to the respondent on the ground of his illegitimate child. Order is impugned on the ground that without any prooi of physicsl relatioxi between the petitioner and mother of the respondent that too virtually one of monogai-ny the presumption and finding of illegitimate —^-- child in the present case is not sustainable under the law aiiid Court below has failed to exercise the jurisdiction vested on it. 3. Brief facts necessary for disposal of this criminal revision is as per claim of the mother of the respondent she has been raped by the petitioner, she conceived then she convened the meeting where the petitioner admitted the relation and pregnancy of the mother of respondent through him. Petitioner was also tried for offence of rape in which he finally acquitted on the ground that petitioner is not maintaining his illegitimate child. Application under Section 125 of the Code of Criminal Procedure, 1973 (in short the Code?) was filed which was dismissed by the trial Court but allowed by revisional Court vide order impugned. 4. Shri P.P. Sahu, counsel for the petitioner and Shri D.L. Prajapati, Counsel for the respondent are heard. 5. Order impugned and record ofthe Court below perused. 6. Learned counsel for the petitioner vehemently argued that the evidence of mqther of respondent recorded in sessions trial is sufficient for disposal of this application in which she has specifically admitted that when she convened the meeting the two other persons Sunil and Uttam were also interrogated by the community meeting and also by the police. At the time of interrogation relating to the commission of offence of rape upon the mother of the respondent, This is sufficient to establish that more than one person were in contact of mother of respondent. Even if it is admitted that petitioner had committed intercourse with the mother of the respondent then even the relation between the mother of the respondent and petitioner at the relevant time i.e. for her conception was not virtually one of monogamy, in absence of such proof respondent is not entitled for any maintenance. 7. On the other hand, learned counsel for the respondent opposed the revision and submits that woman/mother of the child is a best person to \1 prove the fact that who was person having physical relation with her at the time of her conception. 8. In the present case both the parties has evidence in support of their claim. Both the parties placed reliance in the previous statement of the mother of respondent Ex. D-1 Para-10 andlS as relied by both the parties respectively^ clearly reveal that during course of investigation of offence of rape and during course of community meeting name of other two persons Uttam and Sunil were also caiiie into surface as a person having relation with mother of the respondent. This is not a case of long physical relation on the basis of consent or case of valid, void, irregular maiTiage or livlng together as husband and wife for long time. The claim of paten-iity of the respondent is based on few oceasion of commission of intercourse by the petitioner with the mother of the respondent who was at the time of incident aged about 20 years a mature lady. She had not 'reported the matter immediately. She was able to understand pros and cqns. Ex. D-2 clearly reveals that two other persons were also inten'ogated during course of community meeting and course of investigation alleged offence of rape which shows that at least more than one person were in contact of mother of the t'espondent which negate the factum of relation virtually one of monogamy, in absence of such relation no inference can be drawn that mother of respondeiit conceived through petitioner and respondent is a illegitimate child of petitioner, in absence of such relation the petitioner is not liable for any maintenance to the respondent^ while allowing the revision Court below has not considered this material aspect of the case and thereby failed to exercise the jurisdiction vested on it. Order is not sustainable under the law. Consequently, this criminal revision is allowed. Order impugned is hereby set aside. T.P. Sharma Judge