CHATHUKUTTY Vs. JANAKI AMMA

JUDGEMENT

(1.) This revision is against an order of the Sub Divisional Magistrate, Alwaye under S.488 of the Code of Criminal Procedure. Dr. Chathukutty, the revision Petitioner, is an Ezhava aged 72. After retirement from the Cochin State Service he started a private clinic at Cannanore. Respondent No. 1, Janaki Amma, is a Nair whom the revision petitioner came into contract within his clinic, where she used to go for treatment. The revision petitioner's wife was at the time, say by about 1960, had lost her health and physically incapable of functioning as wife. This situation led the revision petitioner to form an intimacy with Janaki Amma and the intimacy resulted finally in the birth of the 2nd respondent, Sunil Kumar in the revision petitioner's clinic on 17-11-1963. Even after the birth of the child the intimacy continued between the petitioner and the 1st respondent; but by 1967 after the death of the revision petitioner's wife the attitude changed and he began to bestow his affections on another woman whom he actually married in the course of the year. That resulted in the desertion of the respondents and all demands made by the 1st respondent for maintenance were spurned away by the revision petitioner. The 1st respondent finally had to offer satyagraha in front of the petitioner's clinic. The police were summoned and cases were registered against her. In the mean time, negotiations were going on for a settlement and they resulted finally in the revision petitioner paying Rs. 2,000/- to the 1st respondent in settlement of her claim; but that did not solve the problem. His promise to maintain the child was not kept and so the respondent had to move the Sub Divisional Magistrate on 10-9-1969 by the present petition for maintenance. The claim was resisted by the revision petitioner denying the paternity of the child. He stated in his counter that Janaki Amma's husband one Gangadharan Kartha is still alive and the 2nd respondent is his child. She somehow fell into the hands of the revision petitioner's enemies and at their persuasion she offered satyagraha in front of his clinic and to patch up the situation Rs. 2,000/- was paid by his brother. On receipt of that amount the 1st respondent had withdrawn all her claims and the subsequent petition for maintenance is a ruse to extract further amounts from him. The learned Magistrate, on careful consideration of the evidence, has come to the conclusion that the 2nd respondent is the child of the revision petitioner and accordingly he has ordered a monthly maintenance of Rs. 100/- for the child.

(2.) On a reappraisal of the evidence I see no reason to interfere. It has come in the evidence that the revision petitioner was keeping Janaki Amma as his mistress fora considerably long time and she was exclusively under his control. A house belonging to Pw. 4 was taken by the revision petitioner on a monthly rent of Rs. 20/- in the year 1960 for the residence of Janaki Amma and he used to visit her freely in the house. In the year 1962, that house with the compound was purchased by him for the use and benefit of Janaki Amma. Pw. 5, Ammukutty Amma, is the mother of the 1st respondent. She has deposed that the 1st respondent's husband was one Gangadharan Kartha and he is not beard of for about 20 years now. She would further swear that the revision petitioner and the 1st respondent were living together in the ranted house as man and wife, where she was also put up. Pws. 2 and 3 are the doctor and nurse respectively of the clinic, who swear that Janaki Amma used occasionally to visit the clinic. The child was born in the clinic and that is not disputed. The purchase of the property for the benefit of the 1st respondent has also been well proved in the case. The revision petitioner tried to wriggle out from the situation saying that the amount was not paid by him; but by his brother only. Why should the brother purchase such a property in the name of the woman unless it is at the instance of the revision petitioner just to save his skin Pw. 1 is an advocate who had some part to play in the transaction. He has stated that the revision petitioner was at the bottom of the transaction and the price was also fixed with his consent. Later, when the revision petitioner thought that the respondents' stay at Cannanore was inconvenient to him, they were shifted to Alwaye where also arrangements for their stay were made by him and he used to frequent them there also; but ultimately by his second alliance consequent on his wife's death the respondents were neglected and it was then that the 1st respondent offered satyagraha. It is difficult in the face of these circumstances to give any credit to the case of the revision petitioner that he had absolutely no sort of connection with the woman and that the child is the child of her husband. Pw. 5, the mother has stated in clear terms that Gangadharan Kartha deserted Janaki Amma some 20 years ago and thereafter he was not heard of. Learned counsel basing on the presumption of S.112 of the Evidence Act argued that since the 1st respondent's marriage with Gangadharan Kartha is still subsisting it must be presumed that Gangadharan Kartha is the father of the child. But it has to be remembered that the presumption is rebuttable. It is open in a particular case to show that despite the subsistence of a valid marriage the husband had no access to the woman at the concerned period and the child was born to the paramour. Justice Panchapakesa Ayyar, of the Madras High Court observed in Sreenivasan v. Kirubal Ammal ( AIR 1957 Mad. 160 ) that:

(3.) To the same effect is a later ruling of the same High Court by Ganapatia Pillai, J., in KaIla Maistry v. Kanniammal ( AIR 1963 Mad. 210 ). The learned Judge would observe: