SUPREME COURT OF INDIA

Before:- K.T. Thomas and S.N. Variava, JJ.

Criminal Appeal No. 830 of 2001. D/d. 17.8.2001.

Parvati Rani Rai & Another - Petitioners

Versus

Bishnupada Sahoo - Respondent

Criminal Procedure Code, 1973, Section 125 - Maintenance - Claim for herself and her child - Husband denying the marriage and paternity of the child - Magistrate dismissed the application on the failure of wife to prove the valid marriage - High Court dismissed the revision in limine - High Court ought to have entertained the revision for revaluation of evidence to evaluate the legality of the findings and conclusion reached by Magistrate - Dismissal of application summarily shows that the jurisdiction was not even invoked.

[Paras 5 and 6]

Cases Referred :-

Pathumma v. Muhammad, 1986(2) AICLR 179 (SC).

Santosh (Smt.) v. Naresh Pal, (1998) 8 S.C.C. 447.

ORDER

Leave granted

2. In this case, Ist appellant filed a claim for maintenance under Section 125 of the Code of Criminal Procedure for herself and her child. Respondent denied the marriage set up by the Ist appellant. He also disowned the paternity of the child. Both sides adduced evidence by examining a number of witnesses. The magistrate evaluated the evidence and reached a conclusion that the Ist appellant failed to prove that there was a vlaid marriage between her and the husband. Regarding paternity of the child also, the Magistrate found against the claim made by the Ist appellant. Consequently the claim was dismissed.

3. Challenging the above order of the Magistrate the Ist appellant moved the High Court in revision. But unfortunately the High Court refused to entertain the revision at all and dismissed the application for revision summarily as per the impugned order.

4. Learned Counsel for the respondent tried to support the impugned order help of two decision of this Court in Pathumma and another v. Muhammad (1986)2 S.C.C. 585 : [1986(2) All India Criminal Law Reporter 179 (SC)] and Santosh (Smt.) v. Naresh Pal (1998)8 S.C.C. 447. He contended that it is not open to the High Court in revision to re-examine the evidence for the purpose of arriving at a different conclusion.

5. We may point out that the aforesaid two decisions related to facts which are clearly distinguishable. In those cases the trial Courts found the marriage set up by the claimants to be valid and upheld the paternity of the children as claimed by their mothers. Section 125 of the Criminal Procedure Code is intended to curtail destitution and also to ameliorate orphancy. The High Courts should be slow to interfere with a positive finding in favour of marriage and paternity of a child. Hence in such instances this Court has pointed out that High Courts shall not interfere with such fact findings. But that principle cannot be imported in the present case where a child happened to be bastardized as a consequence of the order passed by the Magistrate and the claimant was in effect found to be a woman of unvirtuous morality. In such a situation the High Court should have entertained revision and re-evaluated the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not. While maintaining the difference in the overall approach between an appeal and a revision, the jurisdiction of the Court has to be exercised by the High Court in revision.

6. The impugned order summarily dismissing the application for revision shows that the jurisdiction has not even been invoked by the High Court. The impugned order cannot, therefore, be sustained. Consequently, we set aside the order and remit the revision to the High Court for disposal of it afresh in accordance with law.

7. This appeal is disposed of accordingly.

Revision dismissed.