Justice Jitendra Kumar endorses order of Principal Judge, Family Court, Bhagalpur for maintenance of wife, daughter

In Avadh Kishore Sah @ Awadhesh Sah vs. The State of Bihar & Ors. (2025), Patna High Court's Justice Jitendra Kumar concluded:"I do not find any perversity of finding of any fact, or error of law, requiring any interference in the impugned order" dated January 14, 2020 passed by Principal Judge, Family Court, Bhagalpur. Justice Kumar clarified in his 32-page long judgement that the finding of the High Court regarding validity of the marriage between the parties and paternity of the child is tentative in nature, subject to any contrary finding of competent Civil Court or Family Court.

The Principal Judge had directed the petitioner to pay Rs.3,000/- per month to his wife and Rs.2,000/- per month to his daughter. The maintenance to the daughter is payable till her marriage as per the impugned order and arrears of the maintenance amount was directed to be paid in three installments within six months. The two other respondents are: Soni Devi, wife of Awadhesh Sah and Gudiya Kumari, daughter of Awadhesh Sah from Kalapganj, Mirjanhat, Mojahidpur, Bhagalpur who had filed a case under Section 125 Cr.PC for their maintenance against the petitioner and his parents on July 26, 2012. The petitioner was in government job and his income from cultivation and business was Rs.24,000/- per month.The marriage between the petitioner and Soni Devi was solemnized on march 18, 2010 and out of the wedlock, Gudiya Kumari was born. She had alleged that her husband, the petitioner was having illicit relationship with Khushbu Kumari and wanted to marry her to get handsome dowry.

The petitioner stated that his marriage was forcibly solemnized with Soni Devi at Bababudha Nath Temple, Bhagalpur. He also disputed the paternity of Gudiya Kumari, the daughter of Soni Devi. He stated that Gudiya Kumari was born to Soni Devi on August 8, 2010, whereas his marriage with Soni Devi was solemnized on March 18, 2010. Gudiya Kumari was born just after about 4 and ½ months of his marriage with Soni Devi. Awadhesh Sah claimed that his wife/Soni Devi was having illicit relationship with Vishnudeo Sah, her brother-in-law and she was not interested to continue her matrimonial life with him.  

The High Court recorded that as per Section 125 Cr.PC, wife was entitled to get maintenance from her husband, if she is living separately from her husband with sufficient reason, but not living in adultery, and she has no means to maintain herself and the husband, despite having sufficient means, neglects or refuses to maintain her. As per case laws, here wife means only a legally wedded wife.

As per Section 125(1)(b) Cr.PC, any legitimate or illegitimate minor child whether married or not but unable to maintain himself/herself is entitled to get maintenance from his/her father. 

The Court observed: "It is also settled principle of law that proceeding under Section 125 Cr.PC is summary in nature and meant to prevent the vagrancy and destitution of wife and children and provide a speedy remedy for the supply of food, clothing and shelter to them. Hence, strict standard of proof is not required in proceeding under Section 125 Cr.PC unlike in matrimonial proceedings, where strict proof of marriage or paternity is essential."

The High Court referred to Supreme Court's decision in Kamala vs. M.R. Mohan Kumar, (2019) 11 SCC 491. The relevant para of the judgment reads:
“15. Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 CrPC, such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. This Court has held that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife under Section 125 CrPC. Applying the well-settled principles, in the case in hand, Appellant 1 and the respondent were living together as husband and wife and had also begotten two children. Appellant 1 being the wife of the respondent, she and the children, Appellants 2 and 3 would be entitled to maintenance under Section 125 CrPC.”

In Santosh vs. Naresh Pal, (1998) 8 SCC 447, Supreme Court has held that "...In a proceeding for maintenance under Section 125 CrPC the learned Magistrate was expected to pass appropriate orders after being prima facie satisfied about the marital status of parties. It is obvious that the said decision will be a tentative decision subject to final order in any civil proceedings, if the parties are so advised to adopt."

It emerges from Section 7, 8 and 20 of the Family Courts Act, 1984 that if the Civil Court or the Family Court passes any decree in regard to the validity of the marriage or paternity of the child not in consonance with the finding of the High Court in the proceeding under Section 125 Cr.PC, "the decree of the Civil Court/Family Court would prevail and the party concerned would be at liberty to modify the order passed under Section 125 Cr.PC, by moving application under Section 127 Cr.PC, which provides for alteration or modification of the order in changed circumstances."

The High Court observed: "It is also settled principle of law that in revisional jurisdiction, the High Court has no power to reassess evidence and substitute its own finding in regard to positive finding regarding validity of the marriage or paternity of the child, unless there is patent perversity of finding of the fact or error of jurisdiction or that of law. But in case of negative finding of Court in regard to validity of marriage or paternity of child, the High Court is required even in revisional jurisdiction to re- evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Family Court are legally sustainable or not, because on account of negative finding, the child is bastardized and wife is branded as unchaste woman."

The Court referred to Supreme Court's decision in Pravati Rani Sahoo vs. Bishnupada Sahoo, (2002) 10 SCC 510. It reads: “5.... Section 125 CrPC 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 bastardised 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."

The High Court has recorded that "the petitioner has not proved that his wife-Soni Devi was living in adultery."

The petitioner's claimed that Gudiya Kumari is not his legitimate daughter and she being born out of illicit relationship of Soni Devi with someone else, is illegitimate child of other man and hence, he is not liable to pay any maintenance to her.

The High Court pointed out that as per Section 112 of Evidence Act that a child born during continuation of a valid marriage between his/her mother and any man, the child is held to be legitimate son/daughter of that man, unless it is shown by that man that he had no access to his wife at any time when the child could have been conceived. Section 112 of the Evidence Act, 1872 reads as follows :-
“112. Birth during marriage, conclusive proof of legitimacy.—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, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

The High Court relied on Supreme Court's decision in Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia, as reported in (2024) 7 SCC 773, has observed that Section 112 embodies the rule of law that the birth of a child during the continuance of a valid marriage or within 280 days (i.e., within the period of gestation) after its dissolution shall be “conclusive proof” that the child is legitimate unless it is established by evidence that the husband and wife did not or could not have any access to each other at any time when the child could have been conceived. The object of this provision is to attach unimpeachable legitimacy to children born out of a valid marriage. When a child is born during the subsistence of lawful wedlock, it would mean that the parents had access to each other. Therefore, the Section speaks of “conclusive proof” of the legitimate birth of a child during the period of lawful wedlock.

The Supreme Court has further observed that “access” or “non-access” does not mean actual cohabitation but means the “existence” or “non-existence” of opportunities for sexual relationship. Section 112 refers to point of time of birth as the crucial aspect and not to the time of conception. The time of conception is relevant only to see whether the husband had or did not have access to the wife. Thus, birth during the continuance of marriage is “conclusive proof” of legitimacy unless “non-access” of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party.

In Goutam Kundu Vs. State of West Bengal & Anr. as reported in (1993) 3 SCC 418, the Supreme Court recalled the well- known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. The High Court relied on this decision.