IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.3.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.865 of 2008 & M.P.Nos.1 of 2008 and 1 of 2009 M.Ramakrishnan .. Petitioner/respondent Vs. 1. Smt.R.Manjula 2. Minor Preethi 3. Minor Keerthana (Second and third respondents rep. by their mother and next friend, 1st respondent) .. Respondents/petitioners Criminal Revision Case filed against the order dated 8.4.2008 in M.C.No.45 of 2005 on the file of the Chief Judicial Magistrate's Court, Vellore. For petitioner : Mr.M.R.Jothimanian For respondents: Mrs.Daniel Mary ORDER This Crl.R.C. has been filed by the husband against the maintenance awarded to the first respondent-wife and her children, namely the second and third respondents, i.e. Rs.600/- to the first respondent and Rs.750/- each to the respondents 2 and 3, by order dated 8.4.2008 in M.C.No.45 of 2006 on the file of the Chief Judicial Magistrate's Court, Vellore. 2. The first respondent-wife filed a petition claiming maintenance under Section 125 Cr.P.C., stating that the marriage between her and the revision petitioner-husband, had been performed and out of their lawful wedlock, the children were born. Because of the ill-treatment of her husband, the wife was away from the matrimonial home and since the husband neglected to maintain his wife and children, she has come forward with the petition for maintenance under Section 125 Cr.P.C. 3. The petitioner-husband resisted the maintenance petition by filing counter affidavit admitting the factum of marriage; the paternity of the second respondent is also admitted; he disputed the paternity of the third respondent and submitted that the wife left the matrimonial home and she gave birth to a child, namely the second respondent and she never resumed the matrimonial home and https://hcservices.ecourts.gov.in/hcservices/ after the convening of Panchayat, she resumed the matrimonial home on 7.9.2005 and then she left on 18.10.2005 and the third respondent was born on 22.4.2006 and so, he disputed the paternity of the third respondent and prayed for dismissal of the maintenance petition. 4. The trial Court, after considering the evidence of P.W.1 and R.W.1 and marking documents Exs.P-1 to P-6 and Ex.B-1, granted maintenance of Rs.600/- to the first respondent-wife and Rs.750/- each to the respondents 2 and 3, against which the husband has preferred the present Crl.R.C. 5. Challenging the impugned order, learned counsel for the petitioner-husband fairly conceded that he is ready to pay maintenance amount to the second respondent and did not dispute the paternity of the second respondent and he disputes the payment of maintenance to his wife (first respondent herein) and disputes the paternity of the third respondent and hence, he prayed for setting aside the maintenance awarded by the trial Court to the first and third respondents. He further submitted that he has let in evidence for non-accessibility of his wife, which has been categorically proved by DNA test, which shows that the revision petitioner was not the father of the third respondent-second child and that has not been considered by the trial Court and it has considered the provisions of Section 112 of the Indian Evidence Act and awarded maintenance to the wife and second child, namely the first and third respondents respectively. He further submitted that the DNA test has been conducted and in the said test, it has been decided that the paternity of the third respondent-child has not proved and the petitioner is not the father of the third respondent-child, which shows that the first respondent-wife led adultery life and he is not also entitled to maintenance and prayed for allowing the Crl.R.C. 6. Learned counsel for the respondents (wife and children) submitted that the marriage is still subsisting and the non- accessibility with the revision petitioner-husband has not been proved by the revision petitioner-husband and since during the subsisting marriage, the first respondent-wife gave birth to a child, herself and the second child (third respondent) are entitled to maintenance and the trial Court considered the decision of the Apex Court and came to the correct conclusion and the same does not warrant any interference and prayed for dismissal of the Crl.R.C. 7. Considering the rival submissions made by learned counsel on either side, it is seen that the revision petitioner/husband has not disputed the payment of maintenance to the second respondent- child and the quantum also is not disputed. The second respondent- child is entitled to maintenance as awarded by the trial Court. The second respondent-first child is entitled to maintenance of Rs.750/- p.m. from the date of maintenance petition till she gets married. https://hcservices.ecourts.gov.in/hcservices/ 8. Now, this Court has to decide as to whether the first respondent-wife and the third respondent (second child) are entitled to maintenance and whether the trial Court is correct in holding that they are also entitled to maintenance. 9. While considering the paternity of the third respondent (second child), it is true that the marriage between the parties were performed on 3.6.2001 and the marriage is not yet dissolved and even today, the marriage is subsisting. Since the revision petitioner-husband is disputing the paternity of the third respondent (second child), the DNA test was done and the report has been marked as Ex.B-1, which excluded the revision petitioner- husband from the paternity and so, the DNA test proved that the revision petitioner is not the father of the third respondent (second child). 10. Now, it is appropriate to consider the decision of this Court, relied on by learned counsel for the revision petitioner- husband, reported in 2009 (3) CTC 672 (M.Karthika Vs. R.Manohar) and submitted that the conclusive proof of legitimacy under Section 112 of the Indian Evidence Act, is a rebuttable presumption and that can be rebutted by strong preponderance of evidence, which can be obtained from the outcome of the DNA test. In the present case, the DNA test has been done and the report is marked as Ex.B-1, which excluded the revision petitioner-husband from the paternity of the third respondent (second child). 11. In such circumstances, it is worthwhile to quote Section 112 of the Indian Evidence Act, which reads as follows: "Section 112: Birth during marriage, conclusive proof of legitimacy : The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eight days after his dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." 12. The provisions of Section 112 of the Indian Evidence Act, is a rebuttable presumption and that the DNA test report in Ex.B-1 has proved excluding the petitioner from the paternity of the third respondent (second child). 13. Furthermore, in the counter affidavit filed in the maintenance petition, the revision petitioner-husband has specifically mentioned that the wife left the matrimonial home and she gave birth to the first child and then she resumed the petitioner-husband on 7.9.2005 and she again left the matrimonial home on 18.10.2005, and subsequently, she gave birth to a child on 22.4.2006, as evidenced by Ex.P-4 and so, the revision petitioner- husband has clearly proved that there is no access for him to have a relationship with his wife, the first respondent herein, during https://hcservices.ecourts.gov.in/hcservices/ the conception of the third respondent-second child. 14. Admittedly, the first respondent-wife has been examined as P.W.1, and except the ipse-dixit of her evidence, no other evidence has been let in and in her evidence, she has stated in chief examination that she left the matrimonial home when she was nine month pregnant and gave birth to the child Preethi, but they have never taken care of her and hence, the husband issued notice on 23.6.2004 and then she has stated that she has resumed the matrimonial home. When she was subjected to cross-examination, she has fairly conceded that only for four months, she was at her in- laws' house. During cross-examination, she denied the suggestion posed to her that from 7.9.2005 to 15.10.2005 alone she was in her husband's house. The DNA test report Ex.D-1 excluded the paternity of the revision petitioner-husband in respect of the second child (third respondent herein), which presumes that the first respondent-wife was leading an adultery life and hence, as per Section 125(4) Cr.P.C., the first respondent-wife and the third respondent-second child, are not entitled to maintenance. 15. At this juncture, it is appropriate to quote Section 125 (4) Cr.P.C., as follows: "Section 125: Order for maintenance of wives, children and parents: .... (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent." 16. The revision petitioner was excluded from the paternity of the third respondent-second child as per Ex.D-1 report of the DNA test, which shows that the first respondent-wife is leading an adultery life and hence, she is not entitled for maintenance. Since the revision petitioner-husband is not the father of the third respondent-second child, both the first respondent-wife and the third respondent-second child are not entitled to the maintenance. 17. The trial Court committed error in awarding the maintenance to the first respondent-wife and the third respondent- second child, and hence, in respect of the said award of maintenance to them, the impugned order of the trial Court is liable to be set aside, which is hereby set aside. 18. In the result: (a) The Crl.R.C. is partly allowed. (b) The maintenance petition filed by the first respondent- wife and the third respondent-second child, before the trial Court, is dismissed. https://hcservices.ecourts.gov.in/hcservices/ (c) The maintenance of Rs.750/- p.m. awarded by the trial Court for the second respondent-first child, is confirmed. (d) The revision petitioner-husband shall continue to pay the maintenance amount of Rs.750/- p.m. to the second respondent, on or before 5th of every English calendar month and shall also pay the arrears of maintenance from the date of maintenance petition, if any, to her, within two months, from today. (e) The Miscellaneous Petitions are closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar cs To 1. The Chief Judicial Magistrate, Vellore. Crl.R.C.No.865 of 2008 SA {CO} TP/19.4.2011. https://hcservices.ecourts.gov.in/hcservices/