MOHAMMED HANEEFA Vs. PATHUMMAL BEEVI

JUDGEMENT

(1.) This revision arises from an order passed in M. C. 50 of 1970 by the District Magistrate, Trivandrum. The petitioner was the husband of the 1st respondent and is the father of respondents 2 and 3. The claim for maintenance filed by the respondents herein was resisted by the petitioner on the ground (1) that he had divorced the first petitioner by registered letter on 13-1-1966 and (2) that the third petitioner was not his child. The marriage between the petitioner and the 1st respondent took place on 10-7-1958. The 2nd petitioner is aged 10 and the third aged 4. In the petition for maintenance, it was alleged that the husband had neglected to maintain the wife and children despite notice demanding maintenance. The husband is employed in the Kerala State Road Transport Corporation and gets Rs. 250/- every month.

(2.) The petitioner before the lower court examined herself as Pw. 1 and the counter petitioner as CPW. 1. The learned Magistrate considered the question of divorce and found that there is no evidence to show that the wife received the registered letter dated 13-1-1966 and, therefore, it cannot be said that the divorce was effected on that date. However, relying upon the dictum in Pathayi v. Moideen ( 1968 KLT 763 ), a Division Bench of this court, it was held that from the date the husband repudiated the marriage through the written statement filed in the case, the divorce is deemed to have taken place and that maintenance was directed to be paid to the wife from the date of the written statement till the period of iddat. The lower court held that the divorce took effect from 21st January, 1971 and the claim of the first petitioner for maintenance was limited for the period from 11th November, 1970 i. e., the date of the petition till 20th January, 1971 and for 3 months and 10 days from the latter date.

(3.) Regarding the 2nd petitioner, there was no dispute about the parentage and, therefore, the lower court held that the child was entitled to maintenance. Regarding the 3rd petitioner, the lower court considered the question whether she was entitled to maintenance on account of the fact that the husband and wife were not living together and the husband's evidence was that after the marriage, they lived only for 3 months. Reliance was placed on some decisions of this court for the contention that in the absence of proof of divorce, presumption under S.112 of the Evidence Act was available for the child. In this case, although evidence is conflicting between the husband and the wife as to their common residence, it is admitted that the houses of these two spouses were only 8 or 10 miles apart and it cannot, therefore, be said that there is automatically no access. Even though there was no love lost between the husband and wife, it cannot be ruled out that the husband could not visit the house of the wife. It is well settled that courts should always be very chary about bastardising the child. The 3rd petitioner is clearly entitled to the presumption under S.112 of the Evidence Act. I agree with the learned Magistrate that the 3rd respondent herein is the child of the petitioner herein and that she is entitled to maintenance.