Ravindra Maithani, J
1. The challenge in this revision is made to order dated 06.12.2023, passed in Criminal Misc. Case No.71 of 2022, Master Taimur Ali Vs. Gulsher Ali, by the court of Family Judge, Vikas Nagar, District Dehradun (“the case”). By it, the revisionist has been directed to pay Rs. 4,000/- per month, as interim maintenance, to the respondent.
2. Heard learned counsel for the parties and perused the record.
3. The respondent is a child aged 5 years. On behalf of him, an application for maintenance was filed, which is the basis of the case. At the relevant time, the respondent was 2 years and 6 months old. The application for maintenance was filed by the mother of the respondent.
4. It is the case in the application that the mother of the respondent and the revisionist were married on 01.05.2009. The mother of the respondent stayed with the revisionist at various places, including, Rajasthan and Jammu and Kashmir, and returned to Dehradun on 03.01.2019. The parties have some matrimonial disputes. On 02.12.2019 the respondent was born, but he has not been maintained by the revisionist. It has been the case of the mother of the respondent that the revisionist gets Rs. 90,000/- as salary and he has Rs. 50,000/- per month income from agriculture also. Total Rs. 20,000/-maintenance was sought, which is the basis of the case.
5. In the case, an application for interim maintenance has also been filed. It has been objected to by the revisionist. The main objection of the revisionist is that the respondent is not his child. It has been the case of the revisionist that the last date of menstruation of the mother of the respondent was on 26.01.2019, and the day when the respondent was born, it is beyond 280 days since then. The DNA Application, filed by the revisionist was allowed by the trial court, the order of which has been confirmed by the High Court, but yet, the mother of the respondent has not brought the respondent for DNA examination.
6. Learned counsel for the revisionist would submit that the respondent is not the child of the revisionist; the revisionist has already divorced the mother of the respondent lastly on 19.07.2019; they did not stay together post 13.01.2019; merely on presumption under Section 112 of the Indian Evidence Act, 1872 (“the Act”), the order has been passed, which is bad in the eyes of law. It is also argued that on an application of the revisionist, the court had directed for DNA examination, this order has been confirmed by this Court, but still, the mother of the respondent is not producing the respondent for DNA examination.
7. Learned counsel for the revisionist would also submit that the mother of the respondent has concealed her income; she did not reveal any income in the proceedings of the case, but in another proceeding, she has disclosed that her monthly income is Rs. 80,000/- per month. On this basis, it is argued that the order deserves to be set aside and the revision deserves to be allowed.
8. On behalf of the respondent, it is argued that the revisionist had sought declaration for divorce, which was not accepted by the trial court and an appeal is pending in this Court. He would also submit that the order of DNA examination, passed by this Court is impugned before the Hon’ble Supreme Court.
9. It is an interim maintenance order that has been passed. At this stage, this Court may not be confined to much of the facts. Parties were married once. It is the case of the revisionist that he gave divorce on three different occasions. The last date was 19.07.2019. But, it is admitted that a suit for the declaration of divorce, filed by the revisionist, has been dismissed and an appeal is pending, which means, still the revisionist and the mother of the respondent are husband and wife. It further means that the child is born during the subsistence of marriage. In such cases, the presumption under Section 112 of the Act definitely comes into play, which 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.”
10. Learned counsel for the revisionist would submit that this presumption can be rebutted. Definitely, in the case when the parties are permitted to lead evidence, the revisionist would be in a position to rebut the presumption under Section 112 of the Act.
11. Insofar as the concealment of income is concerned, this fact has been noted in Para Nos. 13 and 14 of the impugned order, but the court took this income of the mother of the respondent into consideration while awarding the interim maintenance. The court observed that the monthly expenses of the respondent would be Rs. 10,000/-. In proportion, the expenses have been divided. 60% was to be borne by the mother of the respondent and 40% , it was held, was to be borne by the revisionist. Accordingly, the court directed that the revisionist shall pay Rs.4,000/- for the maintenance of the respondent. There is no illegality, error or impropriety in the impugned order. Therefore, there is no reason to make any interference. The revision deserves to be dismissed.
12. The revision is dismissed.
