Supreme Court of India
PATHUMMA AND ANRversusMOHAMMAD
- Citation
- 1986 INSC 88
- Decided
- 17 April 1986
- Disposal
- Appeal(s) allowed
- Bench
- V KHALID
Holding
A High Court cannot re‑assess evidence or substitute its own view on factual issues in a revision under Section 401 CrPC; it may only intervene on jurisdictional errors.
Summary
The appellants filed a Section 125 CrPC application for maintenance, claiming that the respondent was their husband and that their minor daughter was his illegitimate child. The Judicial Magistrate held that the marriage was not proved, but that the child was illegitimate and ordered maintenance of Rs.25 per month. The High Court, exercising revisional jurisdiction under Section 401 CrPC, upheld the finding that the marriage was not proved but reversed the magistrate's finding on the child's status, holding the child was not illegitimate and setting aside the maintenance order. The Supreme Court held that the High Court was not authorized to re‑appreciate evidence or substitute its own view on factual matters decided by the magistrate; its power under Section 401 is limited to jurisdictional errors. Consequently, the Court restored the magistrate's order granting maintenance to the child, dismissed the respondent's revision petition, affirmed the dismissal of the appellant's petition regarding the wife, and allowed the appellant's appeal while dismissing the respondent's appeal.
Issues considered
- Whether a High Court, in revision under Section 401 of the Criminal Procedure Code, can re‑appreciate evidence and substitute its own factual findings against those of the trial magistrate.
Legislation cited
- Code of Criminal Procedure, 1973s. 125, s. 401
Subjects
Section 125 CrPCmaintenanceillegitimate childrevision jurisdictionre‑appreciation of evidenceHigh Courtfactual findingsCriminal Procedure Code
Judgment
731
PAl'IDIIA & AIL A
v.
APRIL 17, 1986
[V. KHALID AND MURARI MOHON DUTT, JJ.] B
Revisional jurisdiction of the High Court under section
-,).. 401 of the Criminal Procedure Code, 1973, scope of -
Reappreciation of evidence and ~~Jb8tituting its own view by
the High Court is impermissible.
___\ _ In the Criminal application filed by the appellants c
· 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 lk»nth towards
D
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.
E
Allowing Criminal Appeal No. 462A/81 and dislllissing Crl.
Appeal No. 463/81, the Court,
l HILD : 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 F
'substituting its own view for that of the trial Judge pn 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 Ulegitiute child of
the respondent are pre-eminently questions of fact. [733 P-G]
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1- 462A-i&63 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.
H
...
i:;--
·'
732 SUPREME COURT REPORTS [19861 2 S.C.R.
A
E.M.s. Anam for the Appellants.
Nemo for the Respondents.
The Judgment of the Court was delivered by
B 00'1'!', .J. These two appeals by special leave have been
preferred by the appellants against the judgment of the High
Court of I<erala 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. -
c
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 y
~
as M.C. No. 5 of 1978. In the application, it was alleged that
the respondent married the appellant No. 1, Pathumma, 6 years
D ago as per Muslim rites and the respondent resided with her as
husband and wife. When she was carrying two oont~, 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 •.1
E 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 t.
respondent. The case of the respondent was that he never
F married the appellant No~ 1, and that the appellant No. 2 was
not his child, legitimate or illegitimate. f
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,
G 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.
H P.C.
PATHUMMA v. MUHAMMAD [DUIT, J.] 733
A
. 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 B
directing payment of maintenance at the rate oE Rs. 25 per
month to the appellant No. 2. Both the said revision petitions
~were heard together by a learned Slnge Judge of the High
Court.
The learned Judge by his judgment dated November 21,
1980 upheld· the finding of the learned Magistrate that the c
-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 n
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 E
maintenance to the appellant No.2, was set aside and the
entire application of the appellants under section 125 Cr.
P.C. stood dismissed.
t The questions whether the appellant No.1 was the married
wife of the respondent and whether the appellant No.2 was the F
\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. G
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 H
734 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
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
B 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 Petitio~
No.188 of 1979. Criminal Appeal No. 462A of 1981 is
accordingly allowed.
c The order of the High Court dismissing Criminal Revision
Petition No.204 of 1979 is affirmed and the Criminal Appeal J
No. 463 of 1981 is dismissed. .
There will be no order for costs in either of the 1
appeals.
D
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.
t
/
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