SIVADASAN Vs. GOVINDAN

JUDGEMENT

(1.) The illegitimate child of the respondent is the revision petitioner. The short question for consideration is whether the presumption under S.112 of the Evidence Act is irrebuttable and whether that presumption will always stand in the way of an illegitimate child claiming maintenance from the putative father.

(2.) The revision petitioner, a minor child by name Sivadasan, was born to Sreemathi, who had a former husband by name Sankaranarayanan. Sankaranarayanan married Sreemathi in 1974. The allegation is that after a few months of the marriage, Sankaranarayanan left Sreemathi and thereafter he was not heard of and he had no access to her. The further allegation is that subsequently the respondent Govindan alias Unnikurup developed intimacy with Sreemathi and they were living like husband and wife at the residence of the respondent. In that alliance, Sreemathi became pregnant and the revision petitioner was born. Sreemathi for herself and on behalf of her minor son filed M.C. 106 of 1978 on the file of the Judicial Magistrate of the First Class, Tirur, under S.125 of the Cr.P.C., for maintenance.

(3.) On the side of the petitioners, four witnesses were examined and 13 documents were produced. The respondent examined two witnesses and proved three documents. The learned Magistrate considered the entire evidence and rejected the claim of Sreemathi for maintenance on the ground that she is not having marital status as wife of the respondent. On the further finding that Sankaranarayanan had no access to Sreemathi during the relevant period and the only person having access to her was the respondent he was fixed with paternity and ordered to pay monthly maintenance of Rs. 60/- to the child. Sreemathi did not challenge the order against her and it became final. The matter was taken up in revision by the respondent before the Sessions Judge, Manjeri. The Sessions Judge allowed the revision and dismissed the petition on the basis of the presumption under S.112 of the Evidence Act.