HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.492 OF 2009 DATED.26-12-2011 ORDER: This Criminal Petition is filed by the Petitioners 1 to 3 under Section 482 of Cr.P.C. seeking to quash order dated 16-09-2008 passed in Criminal Revision Petition No.3 of 2008 by the IV Additional Sessions Judge, Kakinada reversing order dated 12-12-2007 passed in M.C. No.39 of 2005 by the IV Additional Judicial Magistrate of First Class, Kakinada, East Godavari District. 2. Whereas the Petitioners herein are the Petitioners in the Maintenance Case and Respondents in the Criminal Revision Petition, the Respondent herein is the Respondent in the Maintenance Case and Revision Petitioner in the Criminal Revision Petition. For the sake of convenience, I refer the parties as arrayed in the Maintenance Case. 3. The petitioners filed the Maintenance Case No.39 of 2005 under Section 120 Cr.P.C. seeking maintenance at the rate of Rs.1,500/- p.m. each against the Respondent on the ground that there was a legal marriage between the first of them and a third person about 12 years prior to the filing of the maintenance case i.e. in the year 2005 and at the instance of the respondent, she gave customary divorce to her previous husband and contacted her second marriage with the respondent as per law and after the marriage, they led marital life at Palakollu and thereafter they lived at Uppalanka and during their marital life at first they begot the second of them but in the year 1997 the respondent contacted his second marriage with his sister’s daughter, at the instance of his parents and deserted them but however, after arriving at some settlement, the respondent again joined her following which only the third of them was born but later again the respondent deserted and neglected all of them and further the respondent got exclusive landed house properties at Uppalanka village apart from having mechanized boat by which he is doing fishing and earns Rs.15,000/- p.m. from all his sources and his means are sufficient to maintain them whereas they got no means. 4. The claim of the respondent is that all the pleas taken by the petitioners are false and he got no connection with all of them and further he got no properties and he is a labourer and only earns Rs.50/- per day and in fact the first petitioner got a house and landed property which she succeeded from her parents and from her first husband and hence the petition is not tenable. 5. On behalf of the petitioners, she herself and two others were examined as PWs. 1 to 3 and Exs.P-1 to P-6 were marked. For the Respondent, he himself and another were examined as RWs.1 and 2 and Exs.R-1 to R-3 were marked. 6. On the basis of the evidence on either side, the enquiry Court upheld the claim of the Petitioners in part and awarded Rs.700/- p.m. to each of them towards their maintenance. However, in the Criminal Revision Petition, the Sessions Court observed that in the birth certificate of R-3, the 3rd petitioners parents’ names were mentioned as Venkateswarlu and M. Lakshmi and the first petitioner in his cross- examination deposed that she was known as Mariyamma and after the first marriage, her in-laws changed her name as Mahalakshmi and further as per Exs.A-5 and A-6 Study Certificates of the petitioners 2 and 3 their father’s name was given as G. Sathibabu (Respondent) by reason of which, the enquiry Court held that they were the illegitimate children of the respondent having come to the conclusion that there was no proof of marriage between the first petitioner and the respondent and they did not live together as wife and husband but when the enquiry Court found that the first petitioner and the respondent never lived together as wife and husband how could the paternity of the petitioners 2 and 3 be fastened to the Respondent and hence the question of illegitimate birth of the petitioners 2 and 3 through the respondent was also not established and the petitioners failed to substantiate their claim. With such observations, the Sessions Court set aside the order passed by the enquiry Court, whereas aggrieved by the same, the present Criminal Petition has been filed. 7. It is the contention of learned counsel for the petitioners that the entries relating to the date of birth made in the School Admission Register should be taken into consideration and therefore by virtue of Exs.A-5 and A-6 it has to be presumed that the petitioners 2 and 3 were born to the respondent only and hence it is for the respondent to rebut that presumption by placing sufficient evidence in that context and accordingly the matter is to be disposed of. 8. On the other hand, it is the contention of the learned counsel for the respondent that when it is clearly found that the first petitioner and the respondent never lived together that rules out that the petitioners 2 and 3 were born to them and Exs.A-5 and A-6 are not sufficient to hold that the plea of the petitioners in that regard is true and in fact, they are not public documents to draw any legal presumption and the Sessions Judge properly examined the matter and there is no reason to interfere with his findings in the matter. 9. The points that arise for consideration are whether the order passed in the Criminal Revision Petition by the Sessions Court is tenable or not and whether there are grounds to hold that the first petitioner is the legally married wife of the respondent and whether the petitioners 2 and 3 were born to them legitimately or illegitimately? 10. Point No.1: It is pertinent to note here that admittedly the first petitioner was married to another person and unless that marriage was dissolved by a decree of divorce as per law, the alleged second marriage with the respondent is not valid. In fact no positive evidence is available to the effect that she gave divorce to her previous husband and thereby the alleged second marriage with the second respondent is not valid. Even otherwise, there is no sufficient evidence to come to a conclusion that they lived together. 11. Further, with regards to the question of drawing any presumption by virtue of Exs.A-5 and A-6 first of all it is to be considered as to whether they are public documents or not. By virtue of Section 74 of the Indian Evidence Act, the following documents are only treated as public documents : 1) Documents forming the acts or records of the acts - (i) of the sovereign authority, (ii) of official bodies and tribunals and (iii) of public officers legislative, judicial and executive [of any part of India or of the commonwealth], or of a foreign country; 2. Public records kept in [any State] of private documents. 12. Exs.A-5 and A-6 must have been issued on behalf of the Petitioners 2 and 3 at the time of their admission into the school or later. They are not the documents created by any sovereign authority or official bodies and Tribunals or by any foreign authority and they are also not the documents of any public offices, Legislative, Judiciary or Executive and they are also not the public records of private documents kept in any State Government. Therefore, unless there is clear evidence to prove the contents of Exs.A-5 and A-6, it cannot be said that all the contents therein are true. In Exs.A-5 and A-6 the father’s name of the Petitioners 2 and 3 might have been given as G. Sathibabu i.e. the respondent for various reasons which existed at the relevant point of time best known to the first petitioner. It is not the case of the petitioners that they were admitted by the respondent in the school giving his name as their father, in which case some adverse inference can be drawn against him with regards to their paternity. On the other hand, if there is acceptable evidence to the effect that the first petitioner and the respondent lived together for 9 months prior to the date of birth of the two kids, then it can be presumed that they were born only to them about which there is no concrete evidence at all. 13. Therefore, for the foregoing reasons, I do not find any reason to interfere with orders passed by the Sessions Court in the Criminal Revision Petition No.3 of 2008 and accordingly, the Criminal Petition is liable to be dismissed. Accordingly, the Criminal Petition is dismissed. __________________________ G. KRISHNA MOHAN REDDY, J Dated:26-12-2011. Dsh. THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.492 OF 2009 December, 26, 2011 DSH