Whether Minor Child is entitled to receive Maintenance from Biological Father u/s. 125 Cr.P.C. [Case Law]

Constitution of India - Art. 227 - Evidence Act, 1872 - S. 112 - Criminal Procedure Code, 1973 - Ss. 125 & 362 - Family Courts Act, 1984 - Ss. 7, 8 & 20 - Whether the Minor child is entitled to receive maintenance from his biological father under section 125 of the Cr.P.C.

Criminal Procedure Code, 1973 - S. 125 - Legitimacy of birth is totally irrelevant and insignificant while considering the right of the child to get maintenance from his father.

What has been held is that the emphasis on a petition filed under Section 125 of the Code is on paternity and not legitimacy of the child. Even an illegitimate child can claim maintenance from his biological father if the conditions are satisfied. So, legitimacy of birth is totally irrelevant and insignificant while considering the right of the child to get maintenance from his father. [Para 25]

Evidence Act, 1872 - S. 112 - Criminal Procedure Code, 1973 - Ss. 125 - In a petition seeking maintenance u/s. 125, the presumption u/s. 112 cannot be stretched to bring up a legal bar in the way of enquiry to find out the true paternity of a child.

Though it is not in the interest of the Society to brand a child illegitimate, the interest of the child to know the identity of his biological father and to claim maintenance from him is overwhelming. The minor child is on his own and he cannot be denied his right to know the truth of his paternity and thus receive valuable life support from his father. Legitimacy and paternity are both valid interests of the child that may be accorded recognition under Indian law without prejudice to each other. While 'legitimacy' may be established by a legal presumption, 'paternity' has to be established by science and other reliable evidence. [Paras 27, 29, 30]

Criminal Procedure Code, 1973 - S. 125 - Family Courts Act, 1984 - S. 7 - The only Court which can decide a case u/s. 125 is the Family Court at any place where the Family Court functions. [Para 30]

It has to be borne in mind that the instant petition has been filed under S.125 of the Code of Criminal Procedure. None of the reliefs under Section 7 (1) (a) to (d) of the Family Courts Act have been sought for by the petitioner. Section 7(2) (a) of the Act is clear and emphatic that it is the Family Court that has to exercise jurisdiction under Chapter IX relating to the order for maintenance of wife, children and parents. The only Court which can decide a case under S.125 of the Code of Criminal Procedure is the Family Court at any place where the Family Court functions.

Evidence Act, 1872 - S. 112 - Birth during marriage, conclusive proof of legitimacy - Whether a distinction can be drawn between 'legitimacy' and 'paternity' in the operation of Section 112 of the Evidence Act.

Legitimacy and paternity are distinct and different and operates on different spheres. It is perfectly possible for a presumed 'legitimate' father to be not the biological father. Ordinarily legitimacy of a child would include the concept of paternity also. But the two concepts - 'legitimacy' and 'paternity', do not cover the same field entirely. [Paras 27, 31 & 32]

Constitution of India - Art. 227 - Criminal Procedure Code, 1973 - Ss. 125 - Petition seeking maintenance cannot be rejected in view of the findings of the Civil Court as regards legitimacy.

In that view of the matter, the contention of the learned Senior Counsel that the petition seeking maintenance ought to have been rejected in view of the findings of the Civil Court as regards legitimacy cannot be accepted. Both operate in different spheres and the Family Court was well justified in allowing his application seeking revival. I find no jurisdictional error in the order passed by Family Court warranting interference under Article 227 of the Constitution of India. [Para 33]

Criminal Procedure Code, 1973 - Ss. 125 & 362 - Maintenance -Revival of - Court not to after judgement - Revival of the maintenance application cannot be treated as an alteration or change in the judgment or final order.

The next contention of the learned Senior Counsel is that the Family Court was discharging functions of a Criminal Court and hence, the bar under Section 362 of the Code would apply. Section 362 of the Code applies to cases in which final judgment is rendered in a matter disposing of the case. No such eventuality has arisen in this case. Jurisdiction of a Magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under that Chapter asking a person to pay maintenance to his wife, child or parent, as the case may be, the Magistrate is not imposing any punishment on such person for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a Civil Court in a given case provided the Personal Law applicable to the person concerned authorizes the enforcement of any such right to maintenance. In that view of the matter, the contention of the learned counsel that the proceedings are purely criminal in nature is only to be rejected. [Para 35]

Criminal Procedure Code, 1973 - S. 125 - When a dispute is brought before court by a minor, the Family court is bound to take genuine interest and find out the truth of the matter.

The Family Court in a maintenance petition is having the inherent powers to grant interim allowance to the wife or child under Section 125 of the Cr.P.C. It, therefore, follows that exercise of inherent powers can be done by the court in the interest of justice. When a dispute is brought before court by a minor, the Family court is bound to take genuine interest and find out the truth of the matter. In deciding disputes pertaining to minor children, the court must be ever mindful of the fact that it exercises one of its oldest jurisdictions, that of parens patriae. [Para 36 & 37]

Criminal Procedure Code, 1973 - Section 125 of the Code was enacted for social justice and specially to protect women and children and falls within the constitutional sweep of Art. 15(3) reinforced by Art.39 of the Constitution of India.

The provisions in Chapter IX of the Code is a mode of preventing vagrancy, or at least of preventing its consequences. These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrapheap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. The jurisdiction conferred by the section on the court is more in the nature of a preventive rather than a remedial jurisdiction; it is certainly not punitive. Technicalities, presumptions and assumptions shall not stand in the way of the court in rendering justice. In the instant case, the Family Court appears to have rightfully taken the view that the role of the Court is not that of a silent spectator or a passive agency. When a dispute is brought before a Family Court by a neglected child, the Court was justified in taking up his cause. The Family Court was mindful that Section 125 of the Code was enacted for social justice and specially to protect women and children and falls within the constitutional sweep of Art. 15(3) reinforced by Art.39 of the Constitution of India. [Paras 38 & 39]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RAJA VIJAYARAGHAVAN V.

O.P.(Crl) No.420 of 2015

Dated this the 21st day of May, 2018 

(AGAINST ORDER DATED 9.11.2015 OF THE FAMILY COURT, ALAPPUZHA IN CRL.M.P.NO.48/2015 IN M.C.NO..224/2007.) 

PETITIONER

IVAN RATHINAM

BY ADVS. SRI.S.SREEKUMAR (SR.) SRI. BIJU C. ABRAHAM 

RESPONDENT

MILAN JOSEPH (MINOR)

BY ADVS. SRI.SHYAM PADMAN SRI.S.K.SAJU

J U D G M E N T

1. The petitioner herein is the respondent in M.C. No.224 of 2007 on the file of the Family Court, Alappuzha. The said petition was filed by the respondent herein, a boy aged 6 years, through his mother claiming maintenance under Section 125 of the Code of Criminal Procedure.

2. Facts, though riveting, need to be narrated, albeit briefly, to have a proper understanding of the issues involved. For the sake of convenience, the petitioner in the M.C. shall be referred to as 'Minor' and the respondent as 'Mr.R'. The mother of the Minor shall be referred to as 'Mrs.A'.

3. It was the case of the Minor that his mother, Mrs.A, married a certain Raju Kurian on 16.4.1989. After the birth of their first child, their relationship soured. From the year 1996, they never had any physical relationship though they lived in the same house. During this period, she got close with Mr.R, who was her distant relative. Their relationship bloomed into a love affair and she was persuaded to have non-consensual sexual relationship with him. The Minor was born in the said relationship on 11.6.2001. Due to the situation prevailing then, in all the hospital records, the name of the father was shown as Raju Kurian. It was decided that the entry need to be corrected for various reasons. A suit was consequently instituted before the Civil Court. The prayer was for a decree declaring that Mr.R is the father of the Minor and for mandatory injunction directing Mr.R to submit necessary application to include his name as the father in the relevant register and to seek for the removal of the name of Raju Kurian. According to the plaintiffs, the Minor had congenital urinary ailments and hearing impairment and requires continuous treatment. She was not in a position to afford the expenses for his medicine and treatment and also for his education. It was asserted that the Minor was on the verge of vagrancy and starvation and prayed for issuance of directions to the respondent, who is a police officer, to pay a sum of Rs.10,000/- towards maintenance.

4. The respondent countered the prayer and contended that a petition seeking maintenance was not maintainable as he was a total stranger. The Minor was born to his mother during the subsistence of a valid marriage with Raju Kurian. By producing a copy of the birth certificate of the Minor, it was contended that even in the said certificate, the aforesaid Raju Kurian was shown as the father. Referring to the civil suit instituted by the Minor and her mother, which was pending as O.S.No.425 of 2007 on the file of the Additional Munsiff, Ernakulam, it was contended that the issues in both these matters are intricately connected and that being the case, the judgment passed in the suit would have a definite bearing on the reliefs prayed for in the petition. In that view of the matter, the petition itself was not liable to be entertained. The intention of the Minor, according to the respondent, was only to harass and humiliate him.

5. It appears that during the pendency of the petition, an application was filed in the suit seeking for the issuance of a direction to the respondent to undergo a DNA test. The learned Munsiff allowed the petition, which order was challenged by the respondent before this Court by filing W.P.(C) No.37165 of 2007. By order dated 3.7.2008, the learned Munsiff was directed to take evidence and if the court was convinced that there has been no access between Mrs.A and Raju Kurian, only then, the respondent be directed to undergo the DNA test. Though the said order was challenged before the Hon'ble Supreme Court, the order was not interfered with.

6. The suit was then taken up for trial. Mrs.A entered the box and gave evidence. She adduced documentary evidence to substantiate that the Minor was sick and ailing; that several letters and cards were sent by the respondent to the Minor admitting the relationship; production of a photograph of the Minor and the respondent standing together; and bank details showing that money was deposited by the respondent in the Bank account of the Minor during the good times. She maintained that after the birth of the first child, she had no sexual relationship with Raju Kurian, though her marriage with him was subsisting. Though Mr.R did not tender any oral evidence, he relied on the birth certificate of the Minor and the order in O.P. No 445 of 2006 of the Family Court, Ernakulam, to substantiate his case that Mrs.A was all along residing with Raju Kurian and that her contention regards lack of access was clearly false.

7. The learned Munsiff, on a consideration of the evidence, held that the Minor was born during the subsistence of the marital relationship between Mrs.A and Raju Kurian. They were living under the same roof as well. It was concluded that there cannot possibly be non access and in view of the conclusive presumption under Section 112 of the Indian Evidence Act, the declaration as sought for could not be granted.

8. After the dismissal of the Civil Suit, the Family Court, Alappuzha, took up the petition seeking maintenance. The question before the court was whether, any purpose would be served in continuing with the proceedings. On the submission that the defeated plaintiffs were planning to challenge the judgment by preferring an appeal, the learned Judge closed the petition reserving the right of the petitioner to move the Family Court in the event of them obtaining favourable orders in appeal. Liberty was granted to the petitioner to file a revival memo in that event. Thus, at least temporarily, the matter was kept in cold storage. None of the parties challenged the said order.

9. The defeated plaintiffs preferred appeal and the Sub Court, after re-appreciating the evidence, upheld the findings of the learned Munsiff. This was challenged by filing R.S.A.No.973 of 2011 and a learned Single Judge of this Court by judgment dated 28.10.2011 confirmed the findings of the court below and held that the circumstances pointed out by the appellants were not sufficient enough to displace the conclusiveness attached to Section 112 of the Indian Evidence Act. It was held that the fact that the mother of the child is alleging that somebody else is the father of the child and that too, when her legally wedded husband is not a party to the lis cannot be a reason to allow the prayer in the suit. It was further held that the materials produced by the plaintiffs cannot be relied on to illegitimise the legitimacy provided under Section 112 of the Indian Evidence Act. The Second Appeal was also dismissed and the same has become final as well.

10. After about 4 years and 5 months of the dismissal of the Second Appeal, the petitioner approached the Family Court with a prayer to revive the Maintenance petition and to permit the petitioner to prosecute the same. It was contended that “paternity” and “legitimacy” are distinct concepts and as the claim was for maintenance, only the Family Court had jurisdiction to entertain the same. It was further contended that while “legitimacy” could be established by legal presumption, “paternity” could only be established by science. It was further contended that the Minor himself was before Court and the presumption under law cannot be used as an impregnable wall to deny him the right to know who is biological father was and consequently to obtain maintenance from him. It was also contended that the Minor was sick and has been entailing considerable expenses for his treatment.

11. The respondent filed a detailed objection refuting the prayer of the Minor. It was contended that the petition seeking revival is not maintainable as the matter was closed by the Family Court directing the parties to wait for the final outcome. Now that the matter has been confirmed even in Second Appeal, there is no question of revival. It was further contended that the suit was filed for a declaration that the respondent was the father and for consequential reliefs. Parties were permitted to let in evidence and it has been conclusively held by the competent court that Mrs.A and her child had failed to prove that the respondent is the father of the Minor. The said judgment has become final and after more than five years, parties should not be permitted to rake up the issue yet again. It was also urged that the failure of the petitioner to make Raju Kurian a party to the proceedings is fatal.

12. In view of the contention raised by the respondent with regard to non impleadment of Raju Kurian, an application was filed seeking his impleadment as additional 2nd respondent.

13. The learned Family Court, having considered the contentions advanced, held that after establishment of the Family Court, Alappuzha, by notification dated 21.5.2005, only the said Court had jurisdiction to adjudicate a dispute covered by the explanation to Section 7 of the Family Courts Act, 1984. Explanation to sections 7 and 8 of the Family Courts Act, 1984, was also taken aid of to conclude that the judgment rendered by the Munsiff Court and confirmed by the Appellate Courts would not affect the jurisdiction of the Family Court to entertain the application seeking maintenance. It was held that the order of the Family Court closing the proceedings pending final adjudication by the Civil Court was uncalled for and the Family Court had ample jurisdiction to entertain the question in terms of the mandate under the Act.

14. The order passed by the Family Court holding that the revival memo filed by the petitioner is maintainable and that the M.C. is liable to be proceeded with and also the order allowing the impleadment of Raju Kurian as additional 2nd respondent are challenged in this petition filed under Article 227 of the Constitution of India.

15. Sri S.Sreekumar, the learned Senior Counsel appearing for the petitioner, as instructed by Sri.Biju C. Abraham, submitted that the court below has committed a jurisdictional error in entertaining the petition and in holding that the revival memo filed by the Minor is maintainable. It was submitted that the question of paternity was considered by the Civil court and a conclusive finding has been arrived. The said finding has been confirmed by the Appellate Courts as well. In that view of the matter, the Family Court, while exercising jurisdiction of a Criminal court, was not justified in interfering with the conclusive findings of the Civil court. It is further submitted that the bar under Section 362 of the Code of Criminal Procedure would apply and the said court had no power to alter or review its earlier order.

16. According to the learned Senior Counsel, the Family Court had proceeded on a wrong basis in holding that Exts. P1 to P3 were without jurisdiction. For arriving at the said finding, the Family Court proceeded on the premise that the issue with regard to paternity could only be decided by the Family Court. According to the learned Senior Counsel, Section 7 (e) of the Act would confer jurisdiction on the Family Court to go into the question of legitimacy of any person only if such a question arises in a matrimonial cause and not otherwise. In other words, Exts.P1 to P3 would have binding force and the finding to the contrary is clearly perverse and against the statute. Profuse reliance was placed on the decision of this Court in Bharat Kumar V Selma Mini [2007 (1) KLT 945] and also to Renubala Moharana V Mina Mohanty [2004 (4) SCC 215] to buttress his submission. Ext.P6 order could have been reopened only if the Civil Court judgment favours the respondent herein and as the said contingency has not occurred, Ext.P10 is grossly illegal, is the submission.

17. Sri.Shyam Padman, the learned counsel appearing for the respondent, on the other hand, supported the order of the court below. Referring to Sections 7, 8 and 20 of the Family Courts Act, it is submitted that after the establishment of the Family Court, the question of maintenance to the Minor could only have been entertained by the Family Court. Reliance is also placed on the decision of the Apex Court in Shabana Bhano V Imran Khan [AIR 2010 SC 305] to substantiate his submission. According to the learned counsel, the applicant still remains a minor, and technicalities and legal jargon should not stand in the way of the minor getting maintenance from his biological father. Much reliance was also placed on Alexander C.C V Jacob Anthony Palakkandathi @ Amith and Another [2012 (2) KLT 36], to contend that in a case for maintenance under Section 125 of the Cr.P.C., or under Section 7 of the Family Courts Act, the Family Court would indeed have the power to entertain the application and shall also have the power to incidentally decide the question of paternity. The mere fact that the suit for declaration filed by the Minor and his mother was dismissed holding that the plaintiffs were unable to rebut the legal presumption under Section 112 of the Indian Evidence Act is no reason to hold that a petition seeking maintenance under Section 125 of the Cr.P.C. is not maintainable. Referring to the decision of this Court in Babu v Vidya [2015 (1) KLJ 210], it was contended that as an illegitimate child is also entitled to get maintenance allowance under Section 125 (1) (b) of the Cr.P.C., the question of legitimacy pales into insignificance and the fact in issue is the question of paternity alone. The learned counsel would further submit that this is a case in which the Minor has come forward and asserted that the petitioner herein is his father and claims maintenance from him. There is a legitimate interest of the child to know who his father is. The suit filed by his mother for herself and as his guardian was dismissed on the sole ground that the mother was unable to rebut the conclusive presumption under Section 112 of the Indian Evidence Act. In the case on hand, though the interest of the community is to see that the child is not bastardized, yet the conclusiveness of the presumption created by law in this regard must not act detriment to the interest of the child. According to the learned counsel, legitimacy and paternity are both valid interests of the child and while legitimacy may be established by a legal presumption, paternity has to be established by science and other reliable evidence. Much reliance was placed on the decision of the Delhi High Court in Rohit Shekhar V N.D. Tiwari [2010 SCC Online Del 4573] to bring home his point. Reliance is also placed on the judgement of this Court in State of Kerala V Ivan Rathinam [2009 (2) KLT 543] wherein this Court had occasion to delve into the findings of the Police Complaints Authority with regard to Mr.R and his relationship with the minor.

18. I have anxiously considered the submissions advanced by both sides and have carefully gone through the materials on record.

19. Before considering the contentions advanced, I remind myself that the order under challenge has been passed by the Family Court in a petition seeking maintenance filed by a minor against a person who the minor alleges is his biological father. The order has been challenged under Article 227 of the Constitution of India. Section 14 of the Family Courts Act permits the Court to receive in evidence any report, statement, document, information or matter that may, in its opinion, assist it to deal effectively with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1972. Section 10 (3) of the Family Courts Act enables the Family Court to lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceeding and to discern the truth of the facts alleged by one party and denied by the other. The objective of enacting the Family Court Act is thus obvious from the above provisions. Without being circumscribed by the strict rules of evidence and procedural technicalities, the Family Court can effectively deal with matters detailed under the explanation to Section 7 of the Act. It is in this background that the legality of the order passed by the Family Court is to be considered.

20. It is settled law that the power of judicial superintendence, under Article 227 of the Constitution of India, must be exercised sparingly and only to keep subordinate Courts and tribunals within the bounds of their authority and not to correct mere errors. It is also settled that the jurisdiction under Art.227 could not be exercised as the cloak of an appeal in disguise. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. This Court is not to lightly or liberally act as an appellate court and re-appreciate the evidence. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.

21. With the above limitations in mind, I shall consider the questions raised by the parties.

22. The first question is as to whether in view of Exts. P1 to P3, the Family Court was justified in allowing the revival memo and permitting the minor to proceed with the maintenance petition. The suit as originally filed was for a decree declaring that Mr.R was the father of the minor child and for mandatory injunction directing him to submit application for removal of name of Raju Kurian from the records and to include his name. The Civil court on the basis of the evidence let in came to the conclusion that the Mrs.A had failed to prove non-access between herself and Mr.R and further held that the declaration as sought for cannot be granted. This finding was upheld by the Appellate Court as well. It is evident that the plaintiffs were not able to rebut the conclusiveness of the presumption under Section 112 of the Indian Evidence Act and show non access between the husband and the wife. The Court had held that the conclusiveness of Section 112 cannot be watered down for the reason that the mother of the child alleged that Mr.R is the father that too when her actual husband was not even a party to the lis. It was in the aforesaid circumstances that it was held that the Minor was the legitimate son of the man in the absence of non access between the husband and the wife.

23. In this petition, we are not concerned with the conclusiveness of the presumption under Section 112 of the Indian Evidence Act. We are at the question whether the Minor child is entitled to receive maintenance from his biological father under section 125 of the Cr.P.C.

24. In Alexander C.C. (supra) this Court had held as follows:- 

We may notice that S.125 of the Code of Criminal Procedure entitles an illegitimate minor child also to seek maintenance. The emphasis is on paternity and not on legitimacy, in a proceeding under S.125 brought by an illegitimate child. Since the claim is for maintenance alone and the Family Court, no doubt, has the power to decide the issue as to paternity, and the present order of the Family Court is only by way of assisting it to decide the question relating to paternity, we are of the view that there is no merit in the contention of the petitioner.

25. What has been held is that the emphasis on a petition filed under Section 125 of the Code is on paternity and not legitimacy of the child. Even an illegitimate child can claim maintenance from his biological father if the conditions are satisfied. So, legitimacy of birth is totally irrelevant and insignificant while considering the right of the child to get maintenance from his father.

26. In Babu V Vidya [2015 (1) KLJ 210], a Division Bench of this Court had occasion to explain the breadth and scope of the terms “legitimacy” and “paternity” and it was observed as follows in paragraph Nos.10 and 11 of the judgment.

“10.The term "legitimacy" employed under S.112 of the Evidence Act refers and determines the legal status of birth, i.e. whether legitimate or illegitimate. To put it differently, legitimacy of a child is its right to be officially or legally as such. There, the question in controversy may be whether the child is born in a legally valid marriage or not. Thus, the presumption of "legitimacy" follows subsistence of a valid marriage and the same is conclusive proof of the legitimate birth of the child, unless it is rebutted by the evidence of non - access. Therefore, no evidence can be adduced for the purpose disproving it, unless and until non - access between the spouses is shown. In the decision in Nandlal Wasudeo Badwaik's case (supra), the Apex Court held as follows: 

"We must understand the distinction between a legal fiction and the presumption of a fact. "Legal fiction assumes existence of a fact which may not really exist. However presumption of a facts depends on a satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. S.112 of the Evidence Act does not create a legal fiction but provides for presumption." 

11. Whereas, paternity is the state or fact of being father of a particular child. According to S.125(1)(b) of the CrPC, the legitimate or illegitimate minor child, whether married or not, unable to maintain itself is entitled to get maintenance allowance from his or her father, if the father having sufficient means neglects or refuses to maintain that child. There, the question is whether the child has been begotten in a sexual intercourse with the person from whom maintenance is claimed. An illegitimate child is also entitled to get maintenance from his father. So, legitimacy of birth is totally irrelevant and insignificant while considering the right of the child to get maintenance from his father. In short, legitimacy and paternity are different and distinct. In our view, in that enquiry to find out the true fatherhood of a child, the legal presumption as to the legitimacy under S.112 of the Evidence Act would not bar a scientifically accurate and approved test, if the facts and circumstances of the case tend to make such an enquiry imminently needed. When the fatherhood of a child can be determined accurately without doubt by the DNA test, there is no need to ascribe the fatherhood on an innocent person on presumption. Since the legitimacy and paternity are distinct and different and working under different spheres in different perspective, in a maintenance claim under S.125(b) of the CrPC, the presumption under S.112 of the Evidence Act cannot be extended or stretched so as to put as a legal bar in the way of enquiry to find out the true fatherhood of a child. We are of the further opinion that in every enquiry, the method to be adopted depends upon the 'fact in issue' to be determined.

27. In other words, what has been held in Babu (supra) is that legitimacy and paternity are distinct and different and operates on different spheres. In a petition seeking maintenance under Section 125 of the Code of Criminal Procedure, the presumption under Section 112 of the Evidence Act cannot be stretched to bring up a legal bar in the way of enquiry to find out the true paternity of a child.

28. In Shri Rohit Shekhar vs. Shri Narayan Dutt Tiwari and Another [2010 SCC Online Del 4573], it was held as follows: 

30. This Court cannot disregard the interests of the child in this regard to know of his biological roots. This 'right to know' can be enforced through reliable scientific tests, absent any overriding concern that directing such tests are not in the best interests of the child. There is of course, the vital interests of child to not be branded 'illegitimate'; yet the conclusiveness of the presumption created by the law in this regard must not act detriment to the interests of the child. If the interests of the child are best sub-served by establishing paternity of someone who is not the husband of her (or his) mother, the Court should not shut that consideration altogether. The protective cocoon of legitimacy, in such case, should not entomb the child's aspiration to learn the truth of her or his paternity. The Court is of opinion that 'legitimacy' and 'paternity' are both valid interests of the child that may be accorded recognition under Indian law without prejudice to each other. While 'legitimacy' may be established by a legal presumption, 'paternity' has to be established by science and other reliable evidence. In this specific matter, the Plaintiff has sought a declaration, as to his 'paternity'. Any such declaration will have no bearing upon his legitimacy, which as such, will continue to be governed by the conclusive presumption in Section 112.

29. The question whether the conclusiveness of the presumption created by law should act as a detriment to the interests of the child was considered in Rohit Shekhar ( Supra) and it was held in the negative. Though it is not in the interest of the Society to brand a child illegitimate, the interest of the child to know the identity of his biological father and to claim maintenance from him is overwhelming. The minor child is on his own and he cannot be denied his right to know the truth of his paternity and thus receive valuable life support from his father. Legitimacy and paternity are both valid interests of the child that may be accorded recognition under Indian law without prejudice to each other. While 'legitimacy' may be established by a legal presumption, 'paternity' has to be established by science and other reliable evidence.

30. The reliance placed by the learned Senior Counsel on Bharat Kumar (supra) to persuade this Court that the petition seeking maintenance is not maintainable before the Family Court without there being a matrimonial cause does not appeal to me. In Bharat Kumar, the mother of the minor child had an extramarital relationship with a man and the child was born in that relationship. The petition was filed for declaration that the petitioner was the father of the said child. The contention of the petitioner that such a petition for deciding the paternity of a person is not maintainable before the Family Court, without a matrimonial cause was upheld by this Court relying on Renubala ( supra). It has to be borne in mind that the instant petition has been filed under S.125 of the Code of Criminal Procedure. None of the reliefs under Section 7 (1) (a) to (d) of the Family Courts Act have been sought for by the petitioner. Section 7(2) (a) of the Act is clear and emphatic that it is the Family Court that has to exercise jurisdiction under Chapter IX relating to the order for maintenance of wife, children and parents. The only Court which can decide a case under S.125 of the Code of Criminal Procedure is the Family Court at any place where the Family Court functions. See Shabana Bhano v Imran Khan [AIR 2010 SC 305]; Balram Yadav v. Fulamaniya Yadav [AIR 2016 SC 2161].

31. In Rajesh Francis V Preethi Roslin [2012 (2) KLT 613] a Division Bench of this Court pondered on the question as to whether a distinction can be drawn between 'legitimacy' and 'paternity' in the operation of Section 112 of the Evidence Act. Paragraph No.42 of the judgment sheds a lot of light on the subject. It is extracted below for easy reference.

“We have considered the question whether the presumption under S.112 of the Evidence Act can be held to be limited to legitimacy of the child born and whether it can be held that the conclusive presumption applies only to legitimacy and not to paternity of the child. The contention appears to be interesting and crucially relevant. When S.112 was enacted by the legislature in 1872, science and technology had not developed to any significant extent. Authentic expert scientific evidence as to whether a person is the biological father of the offspring could not then be procured. However, with the advancements in the field of science and technology it is today possible to ascertain paternity authentically by indisputable scientific evidence. In this context the question arises whether a distinction can be drawn between legitimacy and paternity in the operation of S.112. We certainly consider the question to be very interesting. The presumption, the heading of the section shows is only regarding legitimacy. The semantics employed by the legislature also suggests that the presumption specifically is only regarding legitimacy. Is it possible to exclude paternity from the concept of legitimacy? What would remain and be left in the concept of legitimacy if we were to exclude paternity from the same? It is possible to take the view that legitimacy is permitted to be presumed for certain legal consequences that must follow. In that view of the matter paternity can be distinguished from legitimacy. It is not theoretically impossible for a presumed 'legitimate' father to be not the biological father. Legitimacy might bring in legal consequences and obligations. When paternity can be ascertained authentically it would be perfectly permissible, nay laudable, to distinguish between legitimacy and paternity. In most cases legitimacy of a child must include the concept of paternity also. But the two concepts - legitimacy and paternity, do not certainly cover the same field entirely. If such a view were taken, we do note that the presumption of legitimacy can certainly exist for certain purposes in the interest of the offspring, excluding the traumatic unjustified presumption regarding paternity against the man where paternity is contra indicated convincingly by scientific evidence. Such an interpretation, we feel, can certainly harmonise the interests of a child regarding whose legitimacy S.112 can be called in aid and at the same time avoid the trauma of an unfavourable finding regarding paternity when such finding is factually oppressive and unjust. This question, it appears to us, is only academic in this case and it is unnecessary to record any final conclusion on that question. We need only observe that it appears to be theoretically possible to distinguish between legitimacy and paternity and thereby render S.112 more congruent to the needs of a knowledge society where authentic ascertainment of paternity is factually possible by scientific inputs without at the same time compromising on the interests of a child born in matrimony.

32. In other words, it is perfectly possible for a presumed 'legitimate' father to be not the biological father as held in Rajesh Francis (supra). Ordinarily legitimacy of a child would include the concept of paternity also. But the two concepts - 'legitimacy' and 'paternity', do not cover the same field entirely.

33. In that view of the matter, the contention of the learned Senior Counsel that the petition seeking maintenance ought to have been rejected in view of the findings of the Civil Court as regards legitimacy cannot be accepted. Both operate in different spheres and the Family Court was well justified in allowing his application seeking revival. I find no jurisdictional error in the order passed by Family Court warranting interference under Article 227 of the Constitution of India.

34. The next contention of the learned Senior Counsel is that by virtue of Ext.P6 order, the revival memo could have been filed only if the verdict in the Civil court ultimately ends in favour of the plaintiffs. I am unable to agree. By Exhibit P6 order, the learned Family Court had closed the maintenance proceedings pending before it, holding that the parties would be bound by the outcome in O.S No.425 of 2007. However, liberty was granted to the petitioner to resuscitate the proceedings by filing a revival memo later if the proceedings ultimately turn out in his favour. As the relief claimed in the suit and the prayer in the petition seeking maintenance operate in different spheres, I am of the considered view that the learned Family Court was well justified in opening up the proceedings and in granting an opportunity to the Minor child to prosecute his maintenance claim against Mr.R. At any rate, the Family Court was not justified in keeping the maintenance proceedings in abeyance pending disposal of the civil suit. The petition seeking maintenance ought to have been independently proceeded with, without being bogged down by the question of legitimacy which was agitated in the civil proceedings. The learned Family Judge noticing the injustice meted out to the minor child had allowed the application for revival by Ext.P10 order. In that view of the matter, I find no error in the said order.

35. The next contention of the learned Senior Counsel is that the Family Court was discharging functions of a Criminal Court and hence, the bar under Section 362 of the Code would apply. Section 362 of the Code applies to cases in which final judgment is rendered in a matter disposing of the case. No such eventuality has arisen in this case. Furthermore, in Smt. Savithri V Govind Singh Rawat [AIR 1986 SC 984], the Apex Court had occasion to hold that the jurisdiction of a Magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under that Chapter asking a person to pay maintenance to his wife, child or parent, as the case may be, the Magistrate is not imposing any punishment on such person for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a Civil Court in a given case provided the Personal Law applicable to the person concerned authorizes the enforcement of any such right to maintenance. In that view of the matter, the contention of the learned counsel that the proceedings are purely criminal in nature is only to be rejected.

36. This Court in Preeju David V Minor Mebel and Another [2017 (4) KLT 1162] had occasion to deal with the question as to whether, after having dismissed an application for maintenance on the basis of a settlement arrived at between the parties, the same could be rejuvenated when the settlement fails at a later stage. It was held in the affirmative. The same view has been taken by a Single Judge of the Delhi High Court in Jagmohan Arora V Saroj Arora [2011 (3) JCC 2064] and by a Division Bench of the Punjab and Haryana High Court in Smt Kamala Devi and Ors V Mehma Singh [1989 CrlLJ 1866]. The revival of the maintenance application cannot be treated as an alteration or change in the judgment or final order. The Family Court in a maintenance petition is having the inherent powers to grant interim allowance to the wife or child under Section 125 of the Cr.P.C. It, therefore, follows that exercise of inherent powers can be done by the court in the interest of justice.

37. When a dispute is brought before court by a minor, the Family court is bound to take genuine interest and find out the truth of the matter. In Mrs.Kanchan Bedi and Another v. Shri Gurpreet Singh Bedi [AIR 2003 Del 446], Vikramajit Sen, J., as His Lordship then was, had observed that in deciding disputes pertaining to minor children, the court must be ever mindful of the fact that it exercises one of its oldest jurisdictions, that of parens patriae.

38. The provisions in Chapter IX of the Code is a mode of preventing vagrancy, or at least of preventing its consequences. These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrapheap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. The jurisdiction conferred by the section on the court is more in the nature of a preventive rather than a remedial jurisdiction; it is certainly not punitive. Technicalities, presumptions and assumptions shall not stand in the way of the court in rendering justice.

39. In the instant case, the Family Court appears to have rightfully taken the view that the role of the Court is not that of a silent spectator or a passive agency. When a dispute is brought before a Family Court by a neglected child, the Court was justified in taking up his cause. The Family Court was mindful that Section 125 of the Code was enacted for social justice and specially to protect women and children and falls within the constitutional sweep of Art. 15(3) reinforced by Art.39 of the Constitution of India.

40. In Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others (AIR 1978 SC 1807), the Hon'ble Apex Court had observed that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause of the derelicts.

41. After having considered the matter in all angles, I find no jurisdictional error in the findings arrived at by the Court below. No interference is warranted under Article 227 of the Constitution of India. This petition will stand dismissed. The Court below is directed to expedite the matter and take it to its logical conclusion.