Subhashan Reddy, J.@mdashThis is a rather unusual and peculiar case arising u/s 125 Cr. P.C. where the first respondent eventhough denied his paternity to the petitioner herein, contended that he did not father her, has instituted the proceedings in M.C. No. 43 of 1991 on the file of the Court of II Addl. Judicial 1st Class Magistrate, Eluru, claiming maintenance at the rate of Rs. 500/- per month.
2. Miss G. Rohini, learned Counsel for the petitioner strenuously contends that the maintenance case filed by the first respondent is clear abuse of process of law, inasmuch as the first respondent even while pleading that he did not father the petitioner, has instituted the proceedings only as a counter-blast to the plea taken by the petitioner''s mother earlier that the first respondent had married to her as his second wife and be got the petitioner.
3. On the other hand; Mr. J, Prabhakar, learned Counsel for the first respondent, very vehemently contended that as the petitioner''s month had admitted that his client has fathered the petitioner and that the petitioner had also admitted in the counter, she was liable to pay maintenance.
4. Having heard both the Counsel and also the learned Additional Public Prosecutor, I am of the considered view that this is a clear case of abuse of process of law, and as such, the proceedings in M.C. No. 43/91 on the file of the II Additional Judicial First Class Magistrate, Eluru, are liable to be quashed on the grounds mentioned infra.
5. A mere look at the provision u/s 125 Cr. P.C. and also a deep study of the same, will not support the arguments advanced by Mr. J. Prabhakar, learned Counsel for the 1st respondent that the first respondent herein, is entitled for any maintenance against the petitioner herein. The person who seeks a remedy in a Court of law is bound to prove the allegations and the burden of proof never shifts on the other person. Until the initial burden cast on the person is discharged. We need not even go to the burden of proof as the first respondent in the maintenance case referred to above, has himself admitted that he has married only once and that too Smt. Rajyalakshmi on 26.9.1957 and begot a daughter, namely, Lakshmi Kumari and that he never married the petitioner''s mother, Jhansi Rani and even in the maintenance case, he describes the petitioner not as his daughter, but as the daughter of Jhansi Rani. He states categorically in that maintenance case that since the petitioner''s mother was claiming that he had fathered her, he is entitled for maintenance at the rate of Rs. 500/- per month. This is nothing but a spite against the plea made by the petitioner''s mother. Jhansi Rani, even assuming as such on his own admission, the maintenance case is not maintainable.
6. Assuming that the petitioner was fathered by the respondent, even the admission of the petitioner''s mother Jhansi Rani that she was married as a second wife, the marriage is a nullity under the provisions of Hindu Marriage Act and it was held by the Supreme Court in
