Holding

The Supreme Court held that the trial magistrate’s finding that the mother’s testimony was sufficiently corroborated by other evidence was correct and that the High Court erred in reversing it, thereby restoring the maintenance order under Section 125.

Summary

Minor Dimple Gupta, through her mother Narain Dassi, filed an application under Section 125 of the Criminal Procedure Code seeking maintenance from Rajiv Gupta, alleging he was her father. The trial magistrate held that she was the illegitimate child of the respondent and ordered maintenance, relying on the mother’s testimony and corroborative evidence. The High Court reversed this decision, doubting the credibility of the mother’s statement and other witnesses, and held that further corroboration was required. On special leave, the Supreme Court examined whether a petition under Article 136 was appropriate and whether the trial magistrate’s findings were justified. The Court found that the mother’s statement was adequately corroborated by documentary and eyewitness evidence, and that the High Court erred in overturning the lower court’s order. Consequently, the appeal was allowed, the High Court judgment set aside, and the maintenance order restored.

Issues considered

Whether a petition under Article 136 of the Constitution is maintainable in a maintenance proceeding under Section 125 of the CrPC.
Whether the statement of an unwed mother, treated as accomplice evidence, must be corroborated and if such corroboration existed in the present case.
Whether the High Court was justified in reversing the trial magistrate’s findings on the basis of credibility of witnesses.
Whether an illegitimate child is entitled to maintenance under Section 125 of the Criminal Procedure Code.

Legislation cited

Code of Criminal Procedure, 1973s. 125
Constitution of Indias. 136

Subjects

maintenance under s.125illegitimate childminorArticle 136corroboration of testimonycriminal procedureSupreme Court appeal

Judgment

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j
DIMPLE GUPTA (MINOR) A
v.
' RATNGUPTA

OCTOBER 12, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]
-l
~
Code a/Criminal Procedure, 1973:
~
s. 125-Minor claiming maintenance through her mother from
respondent on the ground that she was his daughter as she was born
c
out ofhis relation with her mother-Trial Court allowed maintenance
holding that she was illegitimate daughter ofrespondent-High Court
reversed the order oftrial Court-Interference under Art. 136-Held:
Interference called for on facts of the case-High Court erred in
reversing the findings recorded by trial Court on the basis ofstatement
b
a/mother of applicant and several other witnesses-Constitution of
>-- India, 1950-Art.136.
,,) The appellant filed an application under s.125 Cr.P.C. through
her mother PW-1 claiming maintenance of Rs.500 p.m. from the R
respondent alleging that he was her father as she had been born out
of a relationship between him and her mother. The trial Court allowed
the application holding that appellant was the illegitimate child of
respondent. Respondent filed revision before High Court which was
allowed. Hence the present appeal. F
-4 Allowing the appeal, the Court
~
HELD: 1. PWl and respondent were not married. The appellant
therefore has virtually no rights which she can enforce during her
minority except through an application under s.125 Cr.P.C. The G
entertainment of a petition under Article 136 of the Constitution of
India is thus justified on the facts of the case. There is no reason to
+ justify a reversal of the findings that had been recorded by the trial
Magistrate as the application was supported by the statement of PW-
213 H
-t
214 SUPREME COURT REPORTS [2007] 11 S.C.R.

\_
A 1 and several other witnesses. PW3 specifically deposed that PW-1
and respondent had stayed in her house in village Kalpa several years
earlier. The High Court has held that statement of PW3 could not
be relied upon as it appeared that she had been in Sri Lanka at the
relevant time and could not have therefore been host to PW-1 and
B respondent. In such matters it is impossible to lay down with
precision the chain of events more particularly when illiterate
villagers with no sense of time are involved. There is no reason
therefore to disbelieve the statement of PW3. Likewise, PW4
Pradhan ofvillage has proved the extracts of the birth register which
C shows respondent's name as father of appellant whereas PWS a
teacher has proved the admission form of appellant where the
column pertaining to the father's name has been left blank as would
perhaps be expected from an unwed mother to keep silent on the
subject to avoid embarrassment to all concerned particularly at the
D time when the child was being admitted to school. Much has been
made of the fact that the PW2 who had not supported the claim of
the appellant although she had been cited as her witness. When PW2
had first been examined in Court on 25.10.1994 she had fully
supported the case of the applicant but to recall for evidence on
29.2.1996 she did a volte face and disowned ber earlier statements.
E
The trial Magistrate was therefore justified in observing that tb,is
witness had been won over in the interregnum.
[Para 6] [217-C-H; 218-A-B]
Nand Lal Misra v. Kanhaiya Lal .Misra, AIR (1960) SC 882,
F relied on.
Dorje Wangial v. Kaaram Singh, (1997) 2 Sim.L.C. 277, referred -..
~ r
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
G 1139 of2002.
From the Judgment and Order dated 15.11.2001 of the High Court
of Himachal Pradesh at Shimla in Crl. Revision No. 62 of 2001.
Ravi Bakshi and Yash Pal Dhingra for the Appellant.
H O.P. Shanna, Anil Nag, Rajeev Kumar Bansal, Akshay K. Ghai and
+
DIMPLEGUPTA(MINOR)v. RAJIVGUPTA 215
[HARJIT SINGHBEDI,J.]
K.R. Gupta for the Respondent. A
The Judgment of the Court was delivered by
HARJIT SINGH BEDI, J. I. This appeal by special leave arises
out of the following facts.
B
2. The appellant herein, Dimple Gupta, filed an application under
section 125 of the Code of Criminal Procedure through her mother Narain
i Dassi claiming maintenance at Rs. 500/- per month from the respondent
Raj iv Gupta alleging that he was her father as she had been bom out of
a relationship between him and her mother. It was alleged in the
application that she was living with her mother at village Nogali Tehsil C
Rampur, Himachal Pradesh at the time of the filing of the petition and that
she had been conceived out of wedlock when her mother was a student
in the Xth Class in the Government High Court School at village Nogali.
It was further alleged that when the respondent got to know that Narain
Dassi had concived shehad been taken by him to Chandigarh in order to D
get the foetus aborted but the Doctor advised that as the pregnancy was
at an advanced stage it was not possible to undergo the procedure. It
was further alleged that the respondent had then abandoned her mother
whereafter she was born on 8. 7.1991 at village Kalpa.
E
3. The Trial Magistrate after recording evidence and in the course
of an elaborate judgment held that the appellant was indeed the illegitimate
child ofRajiv Gupta born from Narain Dassi. For arriving at this conclusion
the Magistrate relied on the ocular evidence of Narain Dassi PWl, Smt.
Kanchuk Doma: PW2, Smt. Chandra Devi PW3 and PW4 Bhag Rath F
Pradhan of village Kalpa who proved an abstract (Ex. PW-4/A) of the
Birth and Death Register showing Raj iv Gupta as the father of Dimple
Gupta, and PW5 Devender Singh a Teacher who proved the admission
forms filled in at the time of the appellant's admission in school on
3. 9.1996 showing her caste to be Gupta. The attempt of the respondent G
on the other hand to show that Narain Dassi was a woman of loose
character and had been available to ·several other male companions was
sought to be proved by the evidence of RW-3 Hem Raj, the Manager of
, Gopal Guest House at Rampur who brought the record showing that a
girl under the name of Kavita would often entertain guests in the Guest
H
)

216 SUPREME COURT REPORTS [2007] 11 S.C.R.

\._
A House and that Kavita was in fact Narain Dassi as he knew her
personally.
4. Aggrieved by the judgment of the trial Judge, respondent Raj iv
Gupta filed Criminal Revision No. 62 of2001 in the High Court at Shimla.
The learned Single Judge of the High Court reversed the judgment of
B the tril Judge holding that in the light of several judgments of the High
Court in identical matter it had been held that in a case of a child born
out of an illicit rel~tionship the mother was in the capacity of an accomplice
to the crime and as such it was essential that her statement be
corroborated by other evidence to prove the case. The High Court also ~

c observed that it was not sufficient for the applicant to show that the
respondent was indeed her father but the court had also to give a finding
that in all reasonableness no one else could have been the father and
examining the evidence in the light of the above principles discarded the
statement of PWl Narain Dassi an unworthy of credence and also
D rejected the evidence of PW2 Kanchuck Dolma on the ground that as
she had disowned her initial statements in Court after she had been re-
called for evidence and had supported the respondent's case, whereas ~
PW3 Chandra Devi was a liar as she had admitted that at the relevant
time she may have been in Sri Lanka and thus could not have witnessed
E the presence of Narain Dassi and Rajeev Gupta in the Guest House. The '
court also observed that in the school admission form Ex.D.A. the column
pertaining to the father's name had been left blank whereas in the Birth
entry Ex.PW4/A the father's name had been entered as Rajiv Kumar
and as such could not be connected with the respondent whose name
F was Rajiv Gupta. The High Court accordingly upset the judgment of the
trial Magistrate, allowed the revision petition and dismissed the application
leading to the filing of this appeal. t-·

5. At the very outset, the learned counsel for the appellant has
pointed out that the finding recorded by the trial Magistrate was based
G on a correct appreciation of the evidence and the statement of Narain
Dassi had been corroborated by several other witnesses and documentary
evidence on record and that the High Court was not justified in reversing
the judgment without adequate reason and on mere conjectures. The
learned counsel for the respondent has, however, placed reliance on Nand
H
DIMPLE GUPTA (MINOR) v. RAJIV GUPTA 217
[HARJIT SINGH BEDI, J.]
Lal Misra v. Kanhaiya Lal Misra, AIR (1960) SC 882 to argue that a A
matter such the present one did not justify the entertainment of a petition
under Article 136 of the Constiutition and that in any case the findings
recorded by the High Court called for no interference as it had been held
in several judgments that in the case of a claim based on illegitimacy, the
statement of the mother was to be treated with some suspicion and could B
only be accepted with other corroborative evidence.
6. We have considered the arguments advanced by the learned
counsel for the parties. Concededly Narain Dassi and Rajiv Gupta were
not married. The appellant therefore have virtually no rights Which ~~~
can enforce during her minority except through an application under C
Section 125 of the Code of Criminal Procedure. We are of the opinion
that the entertainment of a petition under Article 136 of the Constitution
·of India is thus justified on the facts of the case and this is also the ratio
of the judgment in the Nand Lal's case.We have also perused the
judgments of the trial Magistrate and the High Court. We find no reasons D'
to justify a reversal of the findings that had been recorded by the trial

J.
, Magistrate as the application was supported by the Statement of PWI
Narain Dassi and several other witnesses. PW3 Chandra Devi specifically
deposed that Narain Dassi and respondent Rajiv Gupta had stayed in her
house in village Kalpa several years earlier. The High Court has held that E
statement of PW3 could not be relied upon as it appeared that she had
been in Sri Lanka at the relevant time and could not have therefore been
host to Narain Dassi and Rajiv Gupta in Kalpa. We are of the opinion
that in such matters it is impossible to lay down with precision the chain
of events more particularly when illiterate villagers with no sense of time F
are involved. We find no reason therefore to hold as to why the statement
of PW3 should not be believed. Likewisem we find that PW4 Bhag Rath
Pradhan of village Kalpa had proved the extracts of the birth register
Ex.PW-4/A which shows the father's name of Dimple Gupta as Rajiv
Kumar whereas PW5 Devender Singh, a teacher has proved the admission G
form of Dimple Gupta where the column pertaining to the father's name
has been left blank as would perhaps be expected from an unwed mother
as it would be best to keep silent on the subject to avoid embarrassment
to all concerned particularly at the time when the child was being admitted
to school. Much has been made of the fact that the PW2 Kanchka Dolma H
218 SUPREME COURT REPORTS [2007] 11 S.C.R.

A who had not supported the claim of the appellant although she had been
cited as her witness. In this connection it has to be noticed that when PW2
had first been examined in court on 25 .10.1994 she had fully supported
the case of the applicant but on recall for evidence on 29 .2.1996 she did
a volte face and disowned her earlier statements. The trial Magistrate was
B therefore justified in observing that this witness had been won over in the
interregnum.
7. The High Court has placed reliance on Dorje Wangial v.
Kaaram Singh (1997) 2 Sim.LC. 277 to contend that the statement of r-·
Narian Dassi being in the nature of accomplicae evidence was liable to
C be corroborated by other evidence to be accepted. Even assuming this
statement to be a correct enunciation of the Law we find that Narain
Dassi's statement gets adequate corroboration from the evidence which
we have already noted above. We accordingly allow the appeal, set aside
the judgment of the High Court and restore that of the trial Magistrate.
D The appellant shall be paid all the arrears upto date within a period of
three months from today and continue to receive the maintenance regularly ~
as per law.
D.G. Appeal allowed.