present suit, and the petitioner has raised it, it would have certainly needed
adequate attention of the Court. That, however, is not the case. Way back in
the year 1995, the respondents and their mother filed M.C.No.23 of 1995 in the
Court of Additional Junior Civil Judge, Addanki, under Section 125 of Cr.P.C.
The petitioner raised the same plea, as in the present suit, about his
relationship with the respondents. The trial Court rejected that plea and
allowed M.C.No.23 of 1995, through order dated 27-03-1996.
The petitioner could have felt grievance about two aspects, viz., the quantum of
maintenance, or the very obligation to pay it. Irrespective of the quantum of
maintenance ordered by the trial Court, if the petitioner was able to establish
that he is not under obligation to pay that at all, on the ground that the
respondents are not his children, he was supposed to challenge the findings
recorded in the M.C.
Section 125 of Cr.P.C. is very clear and succinct in its purport. The
maintenance can be ordered by a Court against a person only in favour of his
wife, legitimate or illegitimate minor children, and parents. While the
relationship with the wife comes into existence on account of marriage, the
relationship with the children and parents is one, referable to sanguinity, or
through blood. The said provision does not recognize any other kind of
relationship for placing the person under obligation to pay maintenance.
A specific issue was framed in the M.C., and it was answered against the
petitioner. The plea that the proceedings under Section 125 of Cr.P.C are
summary in nature; cannot be accepted.
The reason is that the trial Court must record specific findings,
not only about the existence of relationship, but also the aspect of negligence.
Apart from that, the necessity of the persons, claiming maintenance, on the one
hand, and the financial status of the person, against whom it is claimed, on the
other hand; are required to be determined succinctly. That, in turn, needs
recording of evidence. When such is the state of affairs, the proceedings
cannot be said to be summary in nature.
The very fact that the petitioner was made to pay maintenance to the respondents
1 and 2 discloses that he was treated as their father, and by permitting the
order to become final, the petitioner had admitted that relationship. He cannot
be permitted to re-open the same, when the suit for partition was filed. The
trial Court has taken correct view of the matter.
Whatever may be the permissibility for a party to raise same questions in
different proceedings, the one, relating to parentage cannot be permitted to be
pleaded, repeatedly.
ANDHRA PRADESH HIGH COURT
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
C.R.P.No.3334 of 2013
14-11-2013
Potu China Musalaiah..petitioner
Vs
Potu Yallamanda and another..Respondents
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
The respondents herein filed O.S.No.213 of 2010 against the petitioner in the
Court of Principal Senior Civil Judge, Narasaraopet, for partition and separate
possession of the suit schedule properties. They pleaded that the petitioner is
their father, and in spite of repeated requests made by them, he did not effect
partition of the suit schedule properties. The petitioner filed a written-
statement, opposing the suit. He disputed his relationship with the
respondents. According to him, he married the mother of the petitioners,
by name, Ramakotamma, but within few years after the marriage, they started
living separately, and that he is not the father of the respondents.
The petitioner filed I.A.No.849 of 2012, under Section 45 of the Indian Evidence
Act, with a prayer to send the blood samples
of himself and respondents to a laboratory, to determine the parentage of the
respondents. The application was opposed by the respondents. They pleaded that
M.C.No.23 of 1995 was filed by them and their mother, in the Court of Additional
Junior Civil Judge, Addanki, against the petitioner, and though similar plea,
which is raised now; was taken in the M.C also, the trial Court rejected the
same. They pleaded that M.C.No.23 of 1995 was allowed
on 27-03-1996, and that the order passed therein became final.
The trial Court dismissed the I.A., through order dated
10-07-2013. Hence, this revision.
Sri Posani Venkateswarlu, learned counsel for the petitioner submits that the
petitioner went in illatam to the house of his parents-in-law, and on finding
that the atmosphere is not congenial there, returned to the parental home,
within a short time. He contends that the petitioner was sure that he is not
the father of the respondents, and to establish that, he filed the present
application. Learned counsel submits that the finding recorded in the M.C.,
filed under Section 125 of Cr.P.C., cannot be treated as final, since the
proceedings therein are summary in nature, and that the trial Court was not
justified in dismissing the application, particularly when the 1st respondent
herein as PW-1, stated that he has no objection for sending the blood samples to
a laboratory.
Sri K.S. Murthy, learned counsel for the respondents, on the other hand, submits
that the petitioner raised a totally objectionable plea, telling upon the very
status of the respondents, with an oblique motive to deprive them of the share
in the joint family properties. He contends that the petitioner raised similar
plea in the M.C.No.23 of 1995, and after thorough discussion, the trial Court
therein repelled that contention and allowed the M.C.
He submits that the maintenance under Section 125 of Cr.P.C. can be awarded
against a person only in favour of his wife, or children and the very fact that
the maintenance was ordered in favour of the respondents discloses that the
petitioner was found to be their father. Learned counsel submits that the
contention of the petitioner that the proceedings in maintenance case are
summary in nature, is not correct.
The respondents herein, claiming to be the son and daughter of the petitioner;
filed the suit for partition. The petitioner does not dispute that he married
the mother of the respondents. However, his case is that he is not the father
of the respondents. It is a serious allegation, and if accepted, would
bastardize the respondents. Therefore, the foundation of such a plea must be
strong, and the Court cannot permit it to be taken, unless it is fairly
acceptable.
In case the occasion to raise the plea has arisen for the first time in the
present suit, and the petitioner has raised it, it would have certainly needed
adequate attention of the Court. That, however, is not the case. Way back in
the year 1995, the respondents and their mother filed M.C.No.23 of 1995 in the
Court of Additional Junior Civil Judge, Addanki, under Section 125 of Cr.P.C.
The petitioner raised the same plea, as in the present suit, about his
relationship with the respondents. The trial Court rejected that plea and
allowed M.C.No.23 of 1995, through order dated 27-03-1996.
The petitioner could have felt grievance about two aspects, viz., the quantum of
maintenance, or the very obligation to pay it. Irrespective of the quantum of
maintenance ordered by the trial Court, if the petitioner was able to establish
that he is not under obligation to pay that at all, on the ground that the
respondents are not his children, he was supposed to challenge the findings
recorded in the M.C.
Section 125 of Cr.P.C. is very clear and succinct in its purport. The
maintenance can be ordered by a Court against a person only in favour of his
wife, legitimate or illegitimate minor children, and parents. While the
relationship with the wife comes into existence on account of marriage, the
relationship with the children and parents is one, referable to sanguinity, or
through blood. The said provision does not recognize any other kind of
relationship for placing the person under obligation to pay maintenance.
A specific issue was framed in the M.C., and it was answered against the
petitioner. The plea that the proceedings under Section 125 of Cr.P.C are
summary in nature; cannot be accepted.
The reason is that the trial Court must record specific findings,
not only about the existence of relationship, but also the aspect of negligence.
Apart from that, the necessity of the persons, claiming maintenance, on the one
hand, and the financial status of the person, against whom it is claimed, on the
other hand; are required to be determined succinctly. That, in turn, needs
recording of evidence. When such is the state of affairs, the proceedings
cannot be said to be summary in nature.
The very fact that the petitioner was made to pay maintenance to the respondents
1 and 2 discloses that he was treated as their father, and by permitting the
order to become final, the petitioner had admitted that relationship. He cannot
be permitted to re-open the same, when the suit for partition was filed. The
trial Court has taken correct view of the matter.
Whatever may be the permissibility for a party to raise same questions in
different proceedings, the one, relating to parentage cannot be permitted to be
pleaded, repeatedly. That would tell upon the status of the persons, whose
parentage is disputed.
The C.R.P is accordingly dismissed.
The miscellaneous petition filed in this C.R.P shall also stand disposed of.
There shall be no order as to costs.
_______________________
L. NARASIMHA REDDY, J
Dt.14-11-2013
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