As far as the legitimacy of the child is concerned, I may refer to a decision rendered in the case of Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174, wherein it has been held that rule of evidence under Section 112 of the Evidence Act raises a mandatory presumption that a child born during wedlock, no matter when the child could be begotten, is the legitimate issue of the husband or the mother. The presumption can be dislodged by proof of non-access during the time of conception. In the case at hand, evidence has not yet been adduced and the parties have agreed for blood grouping but the same has not been done till date. Hence, I am of the considered opinion that the presumption arises in favour of the wife.
2. The facts which have been unfolded are that the petitioner-husband filed an application under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955 (for short 'the Act') for dissolution of his marriage with the non-applicant on the ground of adultery as well as mental cruelty. The marriage between the parties was solemnised on 30th May, 1996 at Jabalpur according to Hindu rites and rituals. The petitioner was working as a Private Secretary in the High Court of Madhya Pradesh at Jabalpur from October, 1995 to July, 1997. He resigned from his post on 15-7-1997. It was pleaded by the wife that in the wedlock, a child, Prithwiraj, was born on 24-5-1997 and he is about two years old. It is not disputed that the non-applicant/wife is working as Technical Assistant in State Forest Research Institute, Jabalpur and her monthly income is Rs. 4725/-.
3. The husband-petitioner questioned the legitimacy of the child and prayed that parentage be decided by blood grouping. The wile consented the blood-grouping of her son. The Trial Court accepted the application for blood grouping of the parties and directed accordingly. However, the husband-petitioner could not arrange money for blood grouping. It is to be noted that the petitioner-husband filed an application for maintenance allowance under. Section 24 of the Act but the Trial Court by order dated 29th October, 1999 rejected the said application.
4. In the present application, the wife filed an application under Section 26 of the Act for grant of maintenance to the minor child and also for litigation expenses. In course of hearing, learned counsel for the non-applicant submitted that this application can be treated to be one under Section 24 as well as under Section 26 of the Act.
5. As far as the litigation expenses are concerned, I am of the considered opinion that the same is not to be paid by the husband as the non-applicant/wife has independent income of her own. In view of the undisputed fact that she is getting salary of Rs. 4125/- per month, I am of the considered view that she is not entitled to expenses of litigation proceedings. Accordingly, that part of the order is set aside.
6. As far as the maintenance of the minor child is concerned, that is permissible either under Section 24 or Section 26 of the Act. Shri Tamaskar, learned counsel for the husband-petitioner submitted that when he has disputed the parentage of the child, maintenance allowance should not have been granted. It is also submitted by the learned counsel that the Court below has erred in law by granting the maintenance allowance from the dale of the application instead of date of order. Learned counsel has further canvassed that the husband-petitioner has no income of his own and, therefore, the grant of maintenance is impermissible in the facts and circumstances of the case.
7. As far as the legitimacy of the child is concerned, I may refer to a decision rendered in the case of Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174, wherein it has been held that rule of evidence under Section 112 of the Evidence Act raises a mandatory presumption that a child born during wedlock, no matter when the child could be begotten, is the legitimate issue of the husband or the mother. The presumption can be dislodged by proof of non-access during the time of conception. In the case at hand, evidence has not yet been adduced and the parties have agreed for blood grouping but the same has not been done till date. Hence, I am of the considered opinion that the presumption arises in favour of the wife.
8. Shri Tamaskar, learned counsel for the husband-petitioner relied on a decision rendered in the case of Shanker Lal v. Smt. Krishna Tiwari, 1995 Vol. I D. & M.C. 492, wherein the learned Judge has opined that if issue is not framed, the legitimacy of the child, in absence of evidence, cannot be finalised. On that basis, the Court remanded the matter. It is to be noted here that in the case at hand, evidence has not yet commenced. The parties have agreed for blood grouping and no blood grouping has been done. Hence, the presumption as held in the case of Devesh Pratap Singh (supra) is applicable to the facts and circumstances of the case and the ratio laid down in the case of Shanker Lal (supra) is not applicable.
9. With regard to the question of grant of maintenance allowance to the child whether from the date of order or from the date of application, Shri Tamaskar has relied on a decision rendered in the case of Vinay Kumar v. Smt. Mithilesh Bai, 1995 Vol. II D. & M.C. 133, wherein N.P. Singh, J., held as under:--
"The maintenance allowance is normally granted from the date of the order. A special reason is, however, required to be recorded for granting maintenance allowance from the date of filing of the application."
On a perusal of the impugned order, I find no special reason has been ascribed for granting the maintenance allowance from the date of the application. Hence, I am of the considered view that the grant of maintenance should be allowed from the date of order and not from the date of filing of the application.
10. Resultantly, the civil revision is allowed in part. However, in the facts and circumstances of the case, there shall be no order as to costs.
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Madhya Pradesh High Court
Yashpal Singh Thakur vs Smt. Anjana Rajput on 11 May, 2000
Equivalent citations: 2001 (2) MPHT 192
1. Invoking the civil revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 (in short 'the CPC') the husband-petitioner has called in question the legal validity of the order dated 15-1-2000 passed by the Fourth Additional District Judge, Jabalpur in Case No. 368-A of 1999 by which he has granted a sum of Rs. 2500/- towards litigation expenses to the non-applicant/wife and Rs. 600/- towards monthly maintenance allowance to the child, namely, Prithwiraj.2. The facts which have been unfolded are that the petitioner-husband filed an application under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955 (for short 'the Act') for dissolution of his marriage with the non-applicant on the ground of adultery as well as mental cruelty. The marriage between the parties was solemnised on 30th May, 1996 at Jabalpur according to Hindu rites and rituals. The petitioner was working as a Private Secretary in the High Court of Madhya Pradesh at Jabalpur from October, 1995 to July, 1997. He resigned from his post on 15-7-1997. It was pleaded by the wife that in the wedlock, a child, Prithwiraj, was born on 24-5-1997 and he is about two years old. It is not disputed that the non-applicant/wife is working as Technical Assistant in State Forest Research Institute, Jabalpur and her monthly income is Rs. 4725/-.
3. The husband-petitioner questioned the legitimacy of the child and prayed that parentage be decided by blood grouping. The wile consented the blood-grouping of her son. The Trial Court accepted the application for blood grouping of the parties and directed accordingly. However, the husband-petitioner could not arrange money for blood grouping. It is to be noted that the petitioner-husband filed an application for maintenance allowance under. Section 24 of the Act but the Trial Court by order dated 29th October, 1999 rejected the said application.
4. In the present application, the wife filed an application under Section 26 of the Act for grant of maintenance to the minor child and also for litigation expenses. In course of hearing, learned counsel for the non-applicant submitted that this application can be treated to be one under Section 24 as well as under Section 26 of the Act.
5. As far as the litigation expenses are concerned, I am of the considered opinion that the same is not to be paid by the husband as the non-applicant/wife has independent income of her own. In view of the undisputed fact that she is getting salary of Rs. 4125/- per month, I am of the considered view that she is not entitled to expenses of litigation proceedings. Accordingly, that part of the order is set aside.
6. As far as the maintenance of the minor child is concerned, that is permissible either under Section 24 or Section 26 of the Act. Shri Tamaskar, learned counsel for the husband-petitioner submitted that when he has disputed the parentage of the child, maintenance allowance should not have been granted. It is also submitted by the learned counsel that the Court below has erred in law by granting the maintenance allowance from the dale of the application instead of date of order. Learned counsel has further canvassed that the husband-petitioner has no income of his own and, therefore, the grant of maintenance is impermissible in the facts and circumstances of the case.
7. As far as the legitimacy of the child is concerned, I may refer to a decision rendered in the case of Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174, wherein it has been held that rule of evidence under Section 112 of the Evidence Act raises a mandatory presumption that a child born during wedlock, no matter when the child could be begotten, is the legitimate issue of the husband or the mother. The presumption can be dislodged by proof of non-access during the time of conception. In the case at hand, evidence has not yet been adduced and the parties have agreed for blood grouping but the same has not been done till date. Hence, I am of the considered opinion that the presumption arises in favour of the wife.
8. Shri Tamaskar, learned counsel for the husband-petitioner relied on a decision rendered in the case of Shanker Lal v. Smt. Krishna Tiwari, 1995 Vol. I D. & M.C. 492, wherein the learned Judge has opined that if issue is not framed, the legitimacy of the child, in absence of evidence, cannot be finalised. On that basis, the Court remanded the matter. It is to be noted here that in the case at hand, evidence has not yet commenced. The parties have agreed for blood grouping and no blood grouping has been done. Hence, the presumption as held in the case of Devesh Pratap Singh (supra) is applicable to the facts and circumstances of the case and the ratio laid down in the case of Shanker Lal (supra) is not applicable.
9. With regard to the question of grant of maintenance allowance to the child whether from the date of order or from the date of application, Shri Tamaskar has relied on a decision rendered in the case of Vinay Kumar v. Smt. Mithilesh Bai, 1995 Vol. II D. & M.C. 133, wherein N.P. Singh, J., held as under:--
"The maintenance allowance is normally granted from the date of the order. A special reason is, however, required to be recorded for granting maintenance allowance from the date of filing of the application."
On a perusal of the impugned order, I find no special reason has been ascribed for granting the maintenance allowance from the date of the application. Hence, I am of the considered view that the grant of maintenance should be allowed from the date of order and not from the date of filing of the application.
10. Resultantly, the civil revision is allowed in part. However, in the facts and circumstances of the case, there shall be no order as to costs.
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