# Mohd. Arif Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 679
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-04
- **Case number:** Criminal Revision No. 353 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-arif-revisionist-v-state-of-u-p-anr-50730
- **Pages:** 6

## Headnote

(A) Criminal Law - Revision -The Code of
Criminal Procedure, 1973 - Section 125 -
Maintenance - Protection of Women from
Domestic Violence Act ,2005 - Section 12
,29 , Indian Evidence Act, 1872 - Section
112 - Birth during marriage, conclusive
proof of legitimacy.

Application for maintenance - through natural
guardian (mother) - matrimonial cruelty - nonfulfilment of demand of dowry - dismissed by
court of first instance - criminal appeal against
order - Family Court awarded maintenance -
claim of wife of revisionist - her daughter was
born on 03.09.2015 - after leaving her
matrimonial home on 19.12.2014 - court
wrongly found her daughter was born on
10.07.2015 - directed the revisionist to pay
maintenance to respondent No. 2 - which is not
her legitimate child - should be quashed.
(Para - 2,4)

HELD:-Presumption of legitimacy in respondent
No. 2's favour is based on the statutory
provision that she was born during the
continuance of her mother's marriage to the
revisionist, within 280 days of their separation,
and there is no case of the mother's contracting
marriage with another person. No illegality,
irregularity, perversity in the impugned order
passed by court below.(Para - 7,9)

Revision dismissed. (E-7)

List of Cases cited:

Rajnesh Vs Neha & anr. , (2021) 2 SCC 324

## Text

9 All. Mohd. Arif Vs. State of U.P. & Anr.
679
the High Court is restricted as a matter of
prudence and not as a matter of law, to an
order that "suffered from any error of law
or any legal infirmity causing injustice or
prejudice to the accused or was manifestly
foolish or perverse."

In
KK
Patel
v
State
of
Gujarat,7 where a criminal revision
was filed against an order taking
cognizance and issuing process, this
Court followed the view as expressed in
Amar Nath (supra)."

32. In view of the aforesaid, this
Court also finds that the second issue
goes against the revisionist. Criminal
revision under Section 397/401 Cr.P.C.
against such an interlocutory/interim
order like the order impugned is not
maintainable.

33. Accordingly, the present criminal
revision is dismissed. However, there shall
be no order as to costs.
----------
(2023) 9 ILRA 679
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 353 of 2023

Mohd. Arif ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Pradeep Kumar

Counsel for the Respondents:
G.A., Sri Amir Khan
(A) Criminal Law - Revision -The Code of
Criminal Procedure, 1973 - Section 125 -
Maintenance - Protection of Women from
Domestic Violence Act ,2005 - Section 12
,29 , Indian Evidence Act, 1872 - Section
112 - Birth during marriage, conclusive
proof of legitimacy.

Application for maintenance - through natural
guardian (mother) - matrimonial cruelty - nonfulfilment of demand of dowry - dismissed by
court of first instance - criminal appeal against
order - Family Court awarded maintenance -
claim of wife of revisionist - her daughter was
born on 03.09.2015 - after leaving her
matrimonial home on 19.12.2014 - court
wrongly found her daughter was born on
10.07.2015 - directed the revisionist to pay
maintenance to respondent No. 2 - which is not
her legitimate child - should be quashed.
(Para - 2,4)

HELD:-Presumption of legitimacy in respondent
No. 2's favour is based on the statutory
provision that she was born during the
continuance of her mother's marriage to the
revisionist, within 280 days of their separation,
and there is no case of the mother's contracting
marriage with another person. No illegality,
irregularity, perversity in the impugned order
passed by court below.(Para - 7,9)

Revision dismissed. (E-7)

List of Cases cited:

Rajnesh Vs Neha & anr. , (2021) 2 SCC 324

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard the submissions of learned
counsel for the revisionist, learned A.G.A.
for the State, learned counsel for opposite
party No.2 and perused the material on
record.

2. By means of present revisionist has
assailed the order dated 20.12.2022, passed
by Additional Principal Judge Family
680 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, Court No. 2, Bulandshahar in
Maintenance Case No. 174 of 2017 (Km.
Huma Vs. Mohd. Arif) under Section 125
Cr.P.C.

3. The factual matrix of the case
relevant from criminal revision are that
applicant Km. Huma moved an application
for maintenance under Section 125 Cr.P.C
before Principal Judge, Family Court
through their natural guardian mother Smt.
Madina, wife of Mohd. Arif (present
revisionist), seeking maintenance to the
tune of Rs. 5,000/- per month. The
applicant stated that marriage of Smt.
Madina and opposite party No.2 took place
around year 2000. Smt. Madina, the natural
guardian of the applicant was subjected to
matrimonial cruelty by opposite party, her
husband (Mhd. Arif) and her in-laws due to
non-fulfilment of demand of dowry. Four
children were born out of their wedlock of
which one male child died instantly after
birth of three female child namely, Km.
Uzma,

Km. Rehma and Km. Huma
(present applicant) survived. The husband
and in-laws of Smt. Madina assaulted her
badly and tried to kill her on 19.12.2014
and left her near Busstand, Anupshahar
when she was pregnant. She took shelter at
her parental place and gave birth to female
child on 10.07.2015, her name was
christened as Huma. The opposite party
(Mhd. Arif) works in a primary school as a
teacher and was getting salary around Rs.
45,000/- at the time of filing of application
in the year 2017. Initially, Smt. Madina, the
mother and guardian of respondent No. 2
filed an application for maintenance against
her husband which was registered as
Maintenance
Case
No.155
of
2015,
wherein she sought maintenance for herself
as well as for her two minor daughters
Uzma and Rehnuma from her husband as
she was deserted by her husband. The
present applicant was not born at that time.
The
Principal
Judge,
Family
Court
Bulandshahr allowed the said application
partly vide judgement and order dated
10.03.2017
and
awarded
monthly
maintenance to the applicants Smt. Madina
to the tune of Rs. 4,500/- and her minor
daughters Uzma and Rehnuma to the tune
of Rs. 1,500/-. Thus, the Court have
awarded monthly maintenance to the tune
of total Rs. 7,500/- to Smt. Madina and her
two daughters. Subsequently, Smt. Madina
filed an application for various protection
order including monetary relief under
Section 12 of Protection of Women from
Domestic Violence Act before Court of
A.C.J.M.
Bulandshahr,
which
was
dismissed by order dated 29.10.2020
passed by learned A.C.J.M. Bulandshahr.
The applicants filed a Criminal appeal
under Section 29 of Protection of Women
from Domestic Violence Act, which was
decided
ex-parte
vide
order
dated
20.07.2022 passed by learned Additional
Sessions
Judge,
F.T.C.,
Court
No.2
Bulandshahr, whereby the appellate court
allowed the appeal of Smt. Madina and
others and set aside the order dated
20.10.2020 passed by learned Magistrate,
apart from permitting the applicants to live
in one room in the house of opposite party
Mhd. Arif and others, the court awarded
maintenance to the tune of Rs.5,000/- and
Rs. 3,000/- total to Rs. 8,000/- per month
from the date of order of Rs. 1 lakh lumpsum payment was also awarded as
compensation as one time payment to the
applicants Smt. Madina and her three minor
daughters. The said order was challenged
by present revisionist and his family
members who were respondents in the case
of
Domestic
Violence
Act.
In
an
application under Section 482 Cr.P.C. No.
9 All. Mohd. Arif Vs. State of U.P. & Anr.
681
25268 of 2022 Mhd. Arif and 7 others Vs.
State of U.P. and 4 others, wherein a coordinate Bench of this Court considered the
entire issue in the light of judgment of
Hon'ble Apex Court in Rajnesh Vs. Neha
and another (2021) 2 SCC 324 and
affirmed impugned order dated 20.07.2022
passed by learned Additional Sessions
Judge and dismissed the application filed
by present revisionist and his family
members. In that order, it was also
observed that admittedly, no application
has been moved by the applicants to set
aside
the
ex-parte
judgment
dated
20.07.2022 in Application under Section
482 Cr.P.C. A prayer was made to quash
the order dated 20.07.2022 passed in
Criminal Appeal No. 33 of 2020 directed
against order dated 20.10.2020 passed in
Misc. Criminal Case No. 55 of 2016 (Arif
and others Vs. Smt. Madina and others)
under Section 12,18,19,20,22 of Protection
of Women from Domestic Violence Act,
P.S.- Anupshahar, District- Bulandhshar,
whereby the appellants were directed to
pay Rs. 8,000/- per month and maintenance
to the applicants along with Rs. 1 lakh as
one time payment to them. In that case, this
Court in order dated 16.05.2023, an
application under Section 482 Cr.P.C., this
Court did not sustain the contention of
learned counsel for the appellants that the
judgment of 20.07.2022 passed in aforesaid
criminal appeal No. 33 of 2020 was having
overlapping effect as by order dated
10.03.2017 in proceeding under Section
125 Cr.P.C., the trial Court awarded Rs.
4,500/- to Smt. Madina and Rs. 1,500/-
each to her minor daughters, thus the total
amount of Rs. 7,500/- per month was
awarded as maintenance, which was
payable by the husband of opposite party
No. 2. This Court also observed that later
on, on the birth of third daughter Huma an
application under Section 125 Cr.P.C. was
moved on behalf of her by her mother
(Smt. Madina) and a further maintenance
amount of Rs. 4,000/- was also awarded to
her from the date of order and at the rate of
Rs. 1,500/- from the date of filing of
application
to
date
of
order
dated
20.12.2022.
Thus,
total
maintenance
awarded against the present revisionist and
payable to present respondent No. 2, her
mother and siblings comes to Rs. 19,500/-
per month. This Court placed reliance on
contention of opposite party Nos. 2 to 5
that the applicant Mohd. Arif was getting
salary of Rs. 59,800/- per month in the year
2019 and this amount must have increased
by now and the maintenance of Rs.
11,500/- awarded vide order under Section
125 Cr.P.C. and Rs. 8,000/- as the ex-parte
judgment dated 20.07.2022 passed by
learned Additional Sessions Judge in
appeal under Section 29 of Domestic
Violence Act.

4. Learned counsel for the revisionist
submitted that revisionist is paying Rs.
8,000/- to his wife and his daughters in
compliance of order dated 20.07.2022 in
criminal appeal No. 33 of 2020 filed
against order dated 29.10.2020, passed in
Criminal Appeal No. 55 of 2016 under the
proceedings of Domestic Violence Act.
Opposite Party No. 2 has filed present
maintenance Case No. 174 of 2017 under
Section 125 Cr.P.C. which was dismissed
by the court of first instance but in criminal
appeal against said order, the Additional
Principal
Judge
Family
Court
vide
impugned order dated 20.12.2022 awarded
her maintenance as cited above. In initial
maintenance case under Section 125
Cr.P.C. No. 155 of 2015, the Maintenance
was awarded to the tune of Rs. 7,500/- per
month to Smt. Madina for maintenance for
herself and her two minor daughters. The
case of wife of revisionist Smt. Madina is
682 INDIAN LAW REPORTS ALLAHABAD SERIES
that her daughter was born on 10.07.2015
in her parental home as she had left her
matrimonial home on 19.12.2014. The
revisionist had filed a reply in said case in
Maintenance Case No. 174 of 2017,
wherein he stated that Km. Huma was born
out of the wedlock of revisionist and his
wife and she was born more than after 280
days of their separation. From perusal of
ultrasound
of
Smt.
Madina
dated
23.01.2015, it reveals that pregnancy of
Madina was about 8 weeks, the ultrasound
of 07.04.2015, her pregnancy was about 18
weeks 4 days and from ultrasound report
dated 22.06.2015, it reveals that pregnancy
was 28 weeks 2 days and the tentative
delivery date is shown as 2/3.09.2015.
Thus, delivery of third daughter of Smt.
Madina was not possible on 10.07.2015 as
her third ultrasound was conducted on
22.06.2015, wherein her pregnancy was
only 28 weeks 2 days. He further submitted
that Smt. Madina has producer her
ultrasound report, but not produced birth
certificate of her third child before trial
court which creates serious doubt regarding
date of birth of respondent No. 2 Km.
Huma as propounded by her mother in as
much as Smt. Madina had lodged an F.I.R.
against the revisionist, wherein she has
stated that her pregnancy was near about 50
days and in adjournment application, she
said that her daughter is born on
03.09.2015. Therefore, Smt. Madina herself
stated two conflicting dates regarding birth
of respondent No.2. The Trial Court has
given wrong finding that from perusal of
medical report, it is proved that she was
born on 10.07.2015. wherein on file there is
no such document as on record where date
of birth of Km. Huma is mentioned. He
lastly submitted that learned trial court has
directed
the
revisionist
to
pay
the
maintenance to respondent No. 2 from date
of filing of application without assigning
any reason, while it is very clear that
revisionist has appeared before the trial
Court at a very early stage and he has not
committed fault in delayed adjudication of
the matter. Therefore, he is not responsible
for delay caused in decision of the case.
Respondent no. 2 is not legitimate child of
revisionist and he has wrongly made liable
to pay maintenance to her separately. The
impugned order dated 20.12.2022, is exfacie illegal and contrary to the law,
therefore, it is liable to be quashed by this
Hon'ble Court.

5. Per contra, learned A.G.A. and
learned counsel appearing for respondent
No. 2 also submitted that there is no factual
or legal error in impugned order passed by
learned court below. The learned court
below has affirmed a specific issue in this
regard to the effect "whether Km. Huma is
daughter of opposite party Mhd. Arift and
decided this issue in affirmative after
considering all the submissions made by
learned counsel for parties and documents
referred by the learned counsel for opposite
party, who is present revisionist." The
learned court below observed in impugned
order that the tentative date of delivery of
child is shown as 03.09.2015 in third
ultrasound report, is tentative date and it
cannot be regarded as conclusive. The date
of delivery depends on many factors which
affects the growth of foetus in the womb of
the mother and tentative date of delivery
given by doctor may get changed on basis
of other medical standards. This court also
observed that as the birth of respondent No.
2 Kumari Huma took place within 280 days
of the final departure of mother of
respondent No. 2 from her matrimonial
house, the presumption of legitimacy is in
favour of respondent No. 2. Therefore, on
the basis of above submissions, learned
counsel for respondent prayed that there is
9 All. Mohd. Arif Vs. State of U.P. & Anr.
683
no illegality in impugned order passed by
court below and same deserves to be
affirmed.

6. If we go through the ultrasound
reports regarding pregnancy of Smt. Madina,
the mother of respondent No. 2 filed as
Annexure No. 5 to the present revision
memo, we find that in third ultrasound of
Smt. Madina dated 22.06.2015, the gestation
was found to be 28 weeks 2 days and
expected delivery date was shown as
02.09.2015.
Whereas
this
is
case
of
respondent side that third child born on
10.07.2005. The delivery of a child after 7
months of pregnancy is quite natural
although, the normal period of delivery is
considered as 9 months from the date of
conception. The doctor has shown the
delivery date as 02.09.2015 is said estimated
date and that may not be treated conclusive.
This is also case of respondent No. 2 that the
delivery of respondent No. 2 took place at the
place of her mother and not in hospital. No
hospital record has been placed on record by
either side in this respect. The statement in
adjournment application moved by the
counsel for the mother of respondent No. 2,
before court below that the child was born on
03.09.2015 can also not be taken as
conclusive proof of the fact that the
respondent No. 2 was born on 03.09.2015 as
this is a statement of party in her adjournment
application
filed
through
her
counsel.
Inasmuch as if we calculate admitted date of
departure of Smt. Madina from place of
revisionist
to
her
parental
place
i.e.
19.12.2014 and for a sake of moment
suppose that the child was born on
03.09.2015 as stated by revisionist even then
the period of 257 days intervenes in between
these two dates and thus, even in that
situation also the birth of child is within 280
days. Section 112 of Evidence Act provides
as under:-

Section 112 in The Indian
Evidence Act, 1872

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.

7. In absence of any scientific proof
of parenthood of respondent No. 2, there
will be a presumption of legitimacy in her
favour.
In
view
of
above
statutory
provision as she was born during the
continuance of marriage between her
mother and the revisionist and that too
within 280 days after their separation and
this is no case of revisionist that mother of
respondent No. 2 has contracted marriage
with some other person after getting
separated from her husband.

8. So far as quantum of maintenance
is concerned, learned trial court below has
awarded maintenance to the tune of Rs.
1,500/- only from the date of filing of
application to date of order and Rs. 4,000/-
from the date of order to respondent No.2,
who is admittedly third daughter of Smt.
Madina, who claim that the daughter was
born out of her wedlock with the
revisionist. This Court in Application under
Section 482 Cr.P.C. No. 25268 of 2022
also considered the payment capacity of the
revisionist of the amount of maintenance
awarded
in
different
proceedings
to
different amount of maintenance awarded
684 INDIAN LAW REPORTS ALLAHABAD SERIES
to his wife Smt. Madina, her two minor
daughters as well as her third daughter Km.
Huma and if total amount of maintenance
which is awarded against the revisionist in
different proceedings is considered that
comes to Rs. 19,500/-. This amount comes
around 1/3 of the salary of the revisionist
who is engaged in Government service and
is a teacher in basic primary school.
Therefore, the amount awarded by the court
below to the respondent No. 2 cannot be
considered as excessive, keeping in view
the totality of facts and circumstances
related to the case.

9. On the foregoing discussions, I find
that there is no illegality, irregularity,
perversity in the impugned order passed by
court below. Present revision is devoid of
merits and therefore, it is dismissed
accordingly.
----------
(2023) 9 ILRA 684
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2023 &
16.08.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 800 of 2023

Karan Singh & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
Sri Vijay Kumar Rai, Sri Tej Bahadur Rai

Counsel for the Respondents:
G.A., Sri Anup Kumar, Sri Ram Das Yadav,
Sri Santosh Kumar Dubey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
revision - Section 239 - when accused
may be discharged , Section240 - framing
of charge - Indian Penal Code, 1860 -
Sections 420, 406 - revisional jurisdiction
of the higher court is a very limited one
and cannot be exercised in a routine
manner - inbuilt restrictions - should not
be against an interim or interlocutory
order - revisional jurisdiction should be
exercised on a question of law - when
factual appreciation is involved, then it
must find place in the class of cases
resulting in a perverse finding - power is
required to be exercised so that justice is
done and there is no abuse of power by
the court - Merely an apprehension or
suspicion of the same would not be a
sufficient ground for interference. (Para -
17,18)
Trial court rejected discharge application of
accused-revisionists - deceived into executing a
sale deed in favor of revisionist no. 2 -
informant, who owned the plot, was intoxicated
on day of deed's execution - accused were
given an opportunity to prove their transactions
and refute allegations - court noted that
revisionists' documents couldn't be considered
during hearing - hence revision. (Para - 19)

HELD:-Court
below
rightly
observed
in
impugned order that documents filed by
revisionist in support of their claim for discharge
cannot be taken into account at the stage of
hearing and disposal of discharge application.
Court finds no reason to interfere with
impugned order, as it is not irregular, illegal, or
proprietary, and the charges against the
accused revisionist are not groundless. (Para -
19,20)

Revision dismissed. (E-7)

List of Cases cited:

1. Mitesh Kumar J. Sha Vs The St. of Karn. &
ors., 2021 0 Supreme (SC) 628

2. Sau. Kamal Shivaji Pokarnekar Vs The St. of
Maha. & ors., 2019 0 Supreme (SC) 145

3. Amit Kapoor Vs Ramesh Chandra, (2012) 9
SCC 460