JANAMMA Vs. KUTTAPPA PANICKER

JUDGEMENT

(1.) This Criminal Revision is directed against the order, dated 31-3-1958, of the learned First Class Magistrate of Karunagapally, in Miscellaneous Case No. 24 of 1958 of the file of his court, dismissing the claim a mother and her minor child made against the respondent herein for maintenance under the provisions of Section 488, Criminal Procedure Code. The respondent married revision petitioner 1 in February, 1954, but that marriage was dissolved by mutual consent under a registered deed, Ext P. 2, dated 24-11-1955. Eighteen days thereafter revision petitioner 2 was born to revision petitioner 1. It would appear that some months after the birth of the child the mother was demanding maintenance for the child from the respondent and according to her they decided to enter into a fresh marriage between them. The marriage was solemnised on 30-8-1956. Differences however soon arose and the respondent complained to the police that he was compelled to enter into the second marriage against his will and by wrongfully confining him for some days. Pursuant to the complaint the police registered a case against revision petitioner 1 and some of her relations and eventually a charge sheet was laid against them in C. C. No. 169 of 1956 on the file of the lower court. That case, however, ended in the acquittal of the accused persons. The petition giving rise to this revision petition was filed by revision petitioner 1 on 21-5-1957 claiming maintenance for her child as also for herself. The respondent contested the claim under both the heads and the lower court accepting his contentions dismissed the application. Hence this revision.

(2.) I shall first deal with the claim for the maintenance for the child (revision petitioner 2). In negativing that claim the learned Magistrate did not advert at all to the provisions in Section 112, Evidence Act (I of 1872), which is in the following terms : "The fact that any person has 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". Revision petitioner 2 having been born within a short period of eighteen days after dissolution of the marriage between revision petitioner 1 and the respondent and the former not having entered into another marriage, before that, there was a conclusive presumption of law that the respondent was the father of the child. It can be displaced only by proof of non-access between the parties to the marriage when according to the ordinary course of nature the husband could have been the father of the child. To quote the words of S. K. Mukherjee, J. (as he then was) in Venkatsawarlu v. Venkata Narayana, AIR 1954 SC 176 at p. 177, "Access and non-access again connote, as has been held by the Privy Council : Vide, Kurapaya v. Mayandi, AIR 1934 PC 49, existence and non-existence of opportunities for marital intercourse". In the case on hand there is no evidence at all about non-access; indeed no evidence in that regard was attempted by the respondent. Neither Ext. A2, the deed of divorce, nor the written, statement the respondent filed in the case set up such a case.

(3.) In this context it would be relevant to quote certain passages from the lower court's order dealing with the question of the respondent's liability to maintain the child. "The counter-petitioner admits the marriage with 1st petitioner and the divorce evidenced by Ext. P. 2. But he swears that he never believes himself to be the father of the 2nd petitioner and that he was forced to divorce the 1st petitioner due to her immoral and unchaste life". Again, after devoting some attention to the point that in Ext. P. 2 the respondent did not own the paternity of the child that was then in womb of his wife and after stating that impliedly the document had absolved the respondent of any liability to maintain the child, learned Magistrate went on to say: