Minor seeks maintenance but issue of her paternity is in question: Will J&K and Ladakh HC grant maintenance amidst the dispute? Read full report

Jammu and Kashmir and Ladakh High Court

Jammu and Kashmir and Ladakh High Court, Srinagar: Sanjay Dhar, J., addressed a matter with regard to providing maintenance to a minor child amidst the dispute regarding the paternity of the child.

Petitioner (minor) through her mother challenged the order passed by the Judicial Magistrate in the proceedings under Section 488 of J&K CrPC whereby the Magistrate deferred the proceedings till the outcome of the civil suit in which question of paternity of the petitioner was an issue.

Factual Background

Minor petitioner through her mother filed a petition against the respondent claiming maintenance from him. It was alleged that in the year 2010, the respondent had developed a relationship with the petitioner’s mother and further the respondent converted to Islam, whereafter he entered into wedlock with the mother of the petitioner.

Later, on being posted to New Delhi the respondent shifted leaving the petitioner and her mother in lurch. On visiting the native place of the respondent the petitioner and her mother came to know that the respondent was already a married man, hence the marriage between the petitioner’s mother and the respondent got automatically dissolved.

The petitioner and her mother filed a suit for declaration and injunction against the respondent.

The respondent did remit some maintenance amount in the bank account of the petitioner, yet the same was very meager, hence the petitioner sought maintenance of Rs 30,000 from the respondent.

Analysis, Law and Decision

High Court noted that one birth certificate showed the name of the child as Riza Jan with Mr Idress Bashir Jabari as her father, whereas the other one showed the name of girl child as Raaisha with the name of the father as respondent.

Further, the petitioner’s own document, the bank statement depicted that her bank account had been opened in the name of Riza Jan. It meant that Raaisha and Riza Jan were one and the same person.

Hence, in view of the provisions contained in Section 114(e) of the Evidence Act, there is a presumption of correctness attached to the particulars entered in the said certificate.

On the other hand, the birth certificate dated 01.09.2014, on which reliance is being placed by the petitioner, appears to have been issued pursuant to the directions of the Court after more than three years of the event of birth, by taking recourse to the provisions contained in Section 13 (3) of the Registration of Births and Deaths Act, 1969

Therefore, the presumption could not be raised as regards the correctness of contents of the said certificate, unless oral and documentary evidence is led to support the same.

High Court added that, the presumption contained in Section 112 of the Evidence Act is also attracted to the facts of the instant case.

As per the aforesaid provision, 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 eighty days after its dissolution, the mother remaining unmarried, is conclusive proof that he is the legitimate son of that man, unless it is shown that the parties to the marriage had no access to each other.

Hence, the petition was born out of wedlock of her mother with Mr Idrees Bashir Jabari, unless it is shown that Mr Idrees Bashir Jabari had no access to the mother of the petitioner during the said period.

The Bench also observed that, the mother of the respondent could not place on record any Nikahnama or any other material to show that she entered into a wedlock with the respondent.

Merely because wife of the respondent had alleged in her divorce petition that respondent was forced to marry mother of the petitioner does not prove the said fact particularly when respondent’s wife has admittedly withdrawn the petition itself.

Thus, Magistrate had no evidence to even prima facie records a finding that the respondent was the father of the minor.

“…grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 CrPC, but when the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child.”

High Court observed that the revision petition was not maintainable and hence deserved to be dismissed. [Raaisha v. Syed Sudhanshu Panday, 2022 SCC OnLine J&K 242, decided on 27-1-2022]


Advocates before the Court:

For the Petitioner: Abdul Manan, Advocate.

For the Respondent: Anil Bhan, Advocate

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