PARMESWARAN NAIR Vs. JANAKI AMMA

JUDGEMENT

(1.) I have given anxious consideration to the facts of the case in spite of the concurrent findings of fact by the courts below. The question is one of paternity of a child. It is claimed by the plaintiff in the suit that he is not the father of the child though the courts below have found so. The attack against the decision of the courts below requires examination because, according to him, the courts below were acting merely on the uncorroborated testimony of the mother and what has been considered as corroboration does not really amount to it. Now I will state a few facts necessary for the decision of the Second Appeal.

(2.) FIRST defendant was married to one Kumaran Nair in the year 1946. According to the first defendant, about seven months after the marriage Kumaran Nair left for Colombo and was staying there. He is said to have come back after one year and stayed with the first defendant for 18 days. He again left for Colombo and did not return until the first defendant was known to be bearing a child. It is the case of the first defendant that at that time D. W. 5, the brother-in-law of Kumaran nair, wrote to him to come over here as there was a rumour that his wife was pregnant in his absence. Kumaran Nair did return sometime in October 1954 and later, in 1956, he filed a petition O. P. 5 of 1956 for dissolution of marriage. In the mean-while the first defendant had given birth to the second defendant on 12-31955 at Dr. Iype's Nursing Home at Irinjala-kuda. It is the first defendant's case that during the absence of Kumaran Nair. plaintiff, who had married a cousin of the first defendant, was on intimate terms with her. having induced her to have sexual relations with him. In the partition in the family of the plaintiff's wife she did not get any building, suitable for residence, allotted to her share. First defendant's tavazhi got such a house and it is her case that plaintiff and his wife lived along with the first defendant in that house. She would say that when it was time for her delivery she was taken to Dr. Iype's Nursing Home by the plaintiff and he met all the expenses in connection with the delivery. Afterwards she returned to the plaintiff's house from the Nursing Home and lived with him for 21/2 years. It must be mentioned here that the plaintiff did not have any child through his wife and first defendant's case is that when he began to make advances to her he made her understand that since he had no child his wife would not stand in the way of closer relations between himself and the first defendant. It is said that in november 1957 there was an incident in the house of the plaintiff when the first defendant was beaten at the instance of plaintiff's sister. Plaintiff asked her to get out of the house but when she refused he attempted to throw her out along with her child and later he filed a criminal complaint against her which ended in her acquittal. Thereupon the first defendant moved for maintenance of the child before the First Class Magistrate's Court, Chowghat under Section 488 of the Criminal procedure Code in M. C. 13 of 1959. It was found that the plaintiff was the father of the child and maintenance was awarded at Rs. 10/- per mensem. The suit is filed by the plaintiff to set aside that order and to declare that the plaintiff is not the father of the second defendant.

(3.) ACCORDING to the plaintiff he had no contact with the first defendant in any manner. He had no occasion even to talk to her. Of course, the fact that she is a cousin of his wife is not disputed. He had constructed a building near the first defendant's building. The case that prior to the construction of his house he and his wife were living in the first defendant's house is disputed. He would also say that he has nothing to do with the hospitalization of the first defendant for delivery, much less anything to do with the case of the child at any time. He also refuted the case of the first defendant that he was the person, who on behalf of the first defendant, conducted the defence in O. P. 5 of 1956.