Madras HC | Is an illegitimate child entitled to maintenance under S. 125 CrPC? HC reiterates legal position

Madras High Court: B. Pugalendhi, J., while addressing an issue observed and reiterated the established position of the Supreme Court that, under Section 125 of Criminal Procedure Code, 1973 an illegitimate child is entitled to maintenance.

Present criminal revision case was filed against the Judicial Magistrate’s order.

Petitioner’s second wife i.e. respondent 2 states that she got married to the petitioner as per the Hindu Customs and with the consent of his first wife Jeyalakshi and the family members.

Further, she added that she gave birth to a female child i.e. respondent 1.

After some time, the petitioner started harassing the respondent-wife and respondents which resulted in the respondent-wife leaving the house.

On filing a complaint before the All Women Police Station wherein the petitioner agreed to pay maintenance to the respondents but later he denied to pay the same.

In view of the above, the respondent-wife sought maintenance before the Magistrate.

Aggrieved with the magistrate’s decision, the petitioner/husband filed the revision case.

Petitioner raised the ground that the respondent-wife did not elicit through any evidence that the petitioner had sufficient means to pay the maintenance to respondents.

Not Entitled to Maintenance | Magistrate

Trial Court held that the second respondent was not entitled to any maintenance as she was not the legally wedded wife as per the provisions of the Hindu Marriage Act, 1955 when the first marriage of the petitioner was still in force.

Avoidance to maintain the child

It appeared that the revision petitioner used to run the shop in his first wife’s name, however, he claimed that he was working as an employee for a salary of Rs 3,500. Thus the respondent took such a plea only to avoid the payment of maintenance of the child.

For the petitioner’s plea that he had no means to pay the maintenance, Supreme Court’s decision in Sumitra Devi v. Bhikan Choudhary, (1985) 1 SCC 637 was referred, wherein following was held:

“…under Section 125 of the CrPC even an illegitimate minor child is entitled to maintenance. Even if the fact of marriage is discarded, the minor child being found to be an illegitimate daughter of the respondent would be entitled to maintenance.”

Even in Supreme Court’s decision of Bakulbhai v. Gangaram, (1988) 1 SCC 537, it was held that,

“…even an illegitimate child is entitled for maintenance.”

Bench also referred to Section 125 of CrPC which provides that an illegitimate child is entitled to maintenance and the same has been reiterated by the Supreme Court in a number of cases.

Hence,

Husband is duty bound to maintain his dependendants, regardless of his job and income.

Adding to the above, Court held that as a father of the child, it is the petitioner’s responsibility and moral duty to take care of his own daughter by paying the maintenance.[Pachaimuthu v. Minor Vishanthini, 2020 SCC OnLine Mad 2677, decided on 01-10-2020]

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