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PETITIONER: PATHUMMA & ANR.

       Vs.

RESPONDENT: MUHAMMAD

DATE OF JUDGMENT17/04/1986

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) KHALID, V. (J)

CITATION:  1986 SCR  (2) 731        1986 SCC  (2) 585  1986 SCALE  (1)603

ACT:      Revisional jurisdiction of the High Court under section 401 of  the  Criminal  Procedure  Code,  1973,  scope  of  - Reappreciation of  evidence and substituting its own view by the High Court is impermissible.

HEADNOTE:      In the  Criminal application  filed by  the  appellants under section  125 of  the Code  of Criminal  Procedure, the Trial Court  on an appreciation of the evidence accepted the defence of  the respondent  that the first appellant was not his  wife  but  held  that  the  second  appellant  was  his illegitimate child  and directed  the payment  of Rs. 25 per month  towards   maintenance  of  the  child.  Two  revision petitions preferred  by both  the parties  before the Kerala High Court  were heard  together. Allowing  the respondents’ petition and  dismissing the appellants’ petition, the Court held that  the second  appellant was  not the  child of  the respondent. Hence the appeals by special leave.      Allowing Criminal  Appeal No.  462A/81  and  dismissing Crl. Appeal No. 463/81, the Court, ^      HELD :  1. The  High Court in its criminal jurisdiction under section  401 of the Code of Criminal Procedure was not justified in  making a  re-assessment of the evidence and in substituting its  own view  for that of the trial Judge on a question of  fact. The questions whether the appellant No. 1 was the  married wife  of the  respondent  and  whether  the appellant No.  2 was the legitimate or illegitimate child of the respondent  are pre-eminently questions of fact. [733 F- G]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION : Criminal Appeal Nos. 462A-463 of 1981.      From the  Judgment and  Order dated  21.10.1980 of  the Kerala High Court in Crl. R.P. Nos. 188 and 204 of 1979. 732      E.M.S. Anam for the Appellants.      Nemo for the Respondents.

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    The Judgment of the Court was delivered by      DUTT, J.  These two  appeals by special leave have been preferred by the appellants against the judgment of the High Court of Kerala dismissing the Criminal Revision Petition of the appellants  and allowing  that of  the respondent,  both arising out of a proceeding under section 125 of the Code of Criminal Procedure instituted by the appellants.      The appellants filed an application before the Judicial Magistrate, First  Class, Pattambi, under section 125 of the Code  of   Criminal  Procedure.  The  said  application  was numbered as  M.C. No.  5 of 1978. In the application, it was alleged that  the respondent  married the  appellant No.  1, Pathumma, 6 years ago as per Muslim rites and the respondent resided with  her as husband and wife. When she was carrying two months,  she was  taken to  her father’s  house  by  the respondent. Thereafter,  the respondent  left her  there and did not  enquire about  her.  Subsequently,  the  respondent divorced her  without, however, making any payment to her of any Mahar or other compensation. It was further alleged that the appellant  No. 2 Sulekha, a minor daughter, was born out of the  wedlock. The  appellants had  no means of livelihood and accordingly,  they claimed  maintenance respectively  at the  rate  of  Rs.  100  and  Rs.  50  per  month  from  the respondent. The  application was  opposed by the respondent. The case  of the  respondent was  that he  never married the appellant No.  1, and  that the  appellant No. 2 was not his child, legitimate or illegitimate.      The learned  Magistrate by  his order  dated March  24, 1979 came to the finding that the marriage of the respondent with the appellant No. 1, as alleged, was not proved and, as such,  the   appellant  No.  1  was  not  the  wife  of  the respondent. The  learned Magistrate,  however, held that the appellant  No.   2  was   the  illegitimate   child  of  the respondent.  In   that  view  of  the  matter,  the  learned Magistrate directed the respondent to pay maintenance to the appellant No.  2 at  the rate  of Rs.  25 per month from the date of the application under section 125 Cr. P.C. 733      Against  the  order  of  the  learned  Magistrate,  the appellants filed a revision petition being Criminal R.P. No. 204 of  1979 before the High Court of Kerala in so far as it refused the  claim of  the appellant  No. 1 for maintenance. The respondent  also filed  another petition  being Criminal R.P. No.  188 of  1979 against  the  order  of  the  learned Magistrate directing  payment of  maintenance at the rate of Rs. 25  per month  to the  appellant No.  2. Both  the  said revision petitions  were heard  together by  a learned Singe Judge of the High Court.      The learned  Judge by  his judgment  dated November 21, 1980 upheld  the finding  of the learned Magistrate that the marriage of  the respondent  with the appellant No.1 was not proved and that, accordingly, the appellant No.1 was not the wife of  the respondent.  So far as the order of the learned Magistrate directing payment of maintenance to the appellant No.2, the  minor child  of the appellant No.1 was concerned, the learned  Judge made  a re-assessment of the evidence and came to  the finding  that the  appellant No.2, Sulekha, was not the  illegitimate child  of the respondent. Accordingly, the learned  Judge dismissed  the revision  petition of  the appellants being  Criminal R.P.  No. 204 of 1979 and allowed that of  the respondent being Criminal R.P. No. 188 of 1979. The net  result was that the order of the learned Magistrate allowing maintenance  to the  appellant No.2,  was set aside and the  entire application  of the appellants under section 125 Cr. P.C. stood dismissed.

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    The  questions  whether  the  appellant  No.1  was  the married wife  of the  respondent and  whether the  appellant No.2  was  the  legitimate  or  illegitimate  child  of  the respondent, are pre-eminently questions of fact. The learned Magistrate after considering the evidence, as adduced by the parties, held  that the  appellant No.1  was not the wife of the respondent. He further held on the basis of the evidence on record that the appellant No.2 was the illegitimate child of the  respondent. We  are afraid, the learned Judge of the High Court  committed an  error in making a re-assessment of the evidence and coming to a finding that the appellant No.2 was not  the illegitimate  child of  the respondent. We have ourselves considered  the evidence  on record  and we  agree with the  learned Magistrate,  who had  taken much  pains in analysing the evidence, that the 734 appellant No.2 was the illegitimate child of the respondent. The High  Court  in  its  revisional  jurisdiction  was  not justified in  substituting its  own view  for  that  of  the learned Magistrate on a question of fact.      For the  reasons aforesaid,  we set  aside the order of the High  Court in  so far  as it disallows the claim of the appellant No.2,  Sulekha, for  maintenance as granted by the learned  Magistrate   and  dismiss   the  Criminal  Revision Petition No.188 of 1979. Criminal Appeal No. 462A of 1981 is accordingly allowed.      The  order   of  the  High  Court  dismissing  Criminal Revision  Petition  No.204  of  1979  is  affirmed  and  the Criminal Appeal No. 463 of 1981 is dismissed.      There will  be no  order for  costs in  either  of  the appeals.      The appellants  are granted  liberty  to  approach  the learned Magistrate  for the  enhancement of  the  amount  of maintenance of the appellant No.2.                                   Cr.A. No. 462A/81 allowed. S.R.                             Cr.A. No. 463/81 dismissed. 735