1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 36 of 2004. Judgment reserved on: 21.7.2008. Date of Decision: July 25, 2008. ____________________________________________________________ Bhikham Ram. Petitioner. Versus Lata Devi and others. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the Petitioner : Mr. Ashwani Pathak, Advocate. For the respondents : Mr. G.R. Palsara, Advocate. ______________________________________________________________ Surinder Singh, J. The respondent filed a petition under Sections 125 of the Code of Criminal Procedure, for the grant of maintenance which was allowed by the learned trial Court and vide order dated 4.2.2003, the petitioner- husband was ordered to pay an amount of Rs.450/- to each of the respondents per month, which was assailed by the petitioner by filing a revision petition before the court of Sessions and the learned Additional Sessions Judge (Fast Track Court), Mandi, in Criminal Revision Petition No.8/2003-3/2004, dismissed the revision petition on 16.1.2004 with cost including the lawyers fee etc. at Rs.1,000/-. Feeling aggrieved and dissatisfied by the orders of the courts below, the instant petition has been filed, on the ground that though the petitioner was married to respondent No.1, but this marriage was never consummated and he denied the paternity of respondents No.2 and 3. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 The case of the respondent before the trial court was that the respondents living in the house of his in-laws ever since their marriage. His wife did not like him right from the very beginning, because he was suffering from permanent disability having only one finger of his hand. Despite persistent efforts, respondent No.1 did not resume the marital ties and procreated the children by illicit relations. Further that when he became permanent in the department of Public Works Department as Chowkidar, respondent No.1 Lata Devi concocted a false story to claim the maintenance. He further averred that he had also moved an application for DNA test of the children, but his request was wrongly declined, which has caused the grave injustice to him. The respondent has challenged the orders of both the courts below being illegal and wrong. I have heard the learned counsel for the parties and have gone through the record of the case. The respondent-wife as PW1 alleged that the petitioner herein had kept another lady Ruma Devi as his wife. She was left without maintenance for the last about 3-4 years and her children were school going and the petitioner-husband being a Chowkidar in the Public Works Department was getting Rs.6,000/- per month. Her parents are blind. She was not maintained by her husband as he has kept another lady, thus claimed maintenance. She denied in his cross-examination that the marriage was never consummated and the children are the result of illicit relations. PW2 Keshav Ram has corroborated her version that the petitioner has kept Ruma Devi as his wife, whereas, respondents herein are living in the house of the parents of respondent No.1 for the last about 3-4 years. He also stated that the house of the petitioner and his in-laws is at a distance of 15-16 K.M. PW3 Sukh Ram has stated that the petitioner is employed in Mandi town, where he has been residing with Ruma Devi. 3 PW4 Tara Chand is the brother of respondent No.1. He has also made the similar version. According to him, the respondent came to the house of his parents because of their internal disputes. Petitioner-husband (RW1) has stated that immediately after the marriage, respondent No.1 stayed in the house of Phaiyan, her Taya and next day returned to the house of her parents and never resumed the marital ties. In his cross-examination, he has admitted that he had gone to the house of his in-laws to persuade her to return to her matrimonial house. He denied that he was staying with respondent No.1 when he was posted at Rewalsar, nearer to her parental place. RW2 Thalia has stated that he did not see the parties residing together after their marriage. RW-3 Kameshwar has also made the similar statement. According to him the petitioner remains on duty and during the holidays he visited his house. RW-4 Mohan has stated that respondent No.1 never lived with the petitioner as his wife and further that she never resumed the marital ties despite the persistent efforts made by him. On the examination of the above evidence, it stands established that the petitioner was married to respondent No.1 and this fact also stands admitted by him, but according to him the marriage was never consummated and respondents No.2 and 3 are the result of illicit relations. Section 112 of the Indian Evidence Act provides the child born from the wedlock has to be presumed as a legitimate child. To rebut this legal presumption the husband is required to prove the non-access. Though an application was moved by the petitioner –husband for DNA test of respondents No.2 and 3 which was not allowed but taking as if the application would have been allowed and had the result been in his favour even then it was not enough to escape from conclusiveness of Section 112 of the Indian Evidence Act. The law leans in favour of the innocent child from being bastardized if his parents are living together during the 4 time of conception. The petitioner-husband failed to prove the non-access beyond a reasonable doubt. There is no evidence that he did not have any opportunity to approach his wife during the relevant time. Since the marriage inter-se the petitioner and respondent No.1 stands admitted, his application for blood test of the children cannot be ordered by the court as a matter of course for a roving inquiry. There must be a strong prima-facie case put forth by the husband to establish the non-access to rebut the legal presumption to which the petitioner-husband has failed to prove. The place where he was posted at Revalsar was not too far from the house of his in-laws where she was residing. The respondent did not produce any evidence that he was maintaining a separate residence and had no opportunity to approach his wife. The proceedings under Section 125 of the Code of Criminal Procedure are summary and remedial in nature. In the instant case, respondent No.1 is admittedly the wife of the petitioner-husband and he has failed to rebut the non-access thus there is strong presumption against him with respect to paternity of respondents No.2 and 3. In these circumstances, when the petitioner-husband is employed in government service and is earning Rs.5,000/- per month, the maintenance awarded by the learned courts below can not be said to be excessive, therefore, it requires no interference. Accordingly, the present petition is dismissed. Send down the records. July 25,2008. (Surinder Singh) ( Pds ) Judge.