C VIJAYAN Vs. C KARTHIAYANI

JUDGEMENT

(1.) Petitioner challenges the award of maintenance to 2nd respondent minor girl by the court below, on remand.

(2.) 1st respondent claimed maintenance for 2nd respondent, alleging that she was petitioner's daughter born to her. Learned Magistrate found that 1st respondent was married to one Velayudhan, and that by reason of the presumption arising under S.112 of the Evidence Act paternity could not be attributed to petitioner. In revision, by order in Crl.R.P. 294/83, this court remitted the matter to the Trial Court to consider whether the marriage between 1st respondent and Velayudhan had been dissolved. On such consideration, court below found that the marriage was dissolved and that 2nd respondent was born of the illicit relationship between petitioner and 1st respondent. These findings are under challenge.

(3.) Court below found that petitioner and 1st respondent lived as man and wife, that the child (2nd respondent) was born of this union on 20-8-80. They later parted company. However, petitioner executed Ext. P2 agreement with 1st respondent admitting paternity of 2nd respondent and agreeing to pay a monthly maintenance of Rs. 15/-. PW 2 is an attester, to Ext. P2. PW 6 a resident of the locality, stated that marriage between Velayudhan and 1st respondent was dissolved sometime in 1973, according to his reckoning, in accordance with the custom prevalent in the community. He would also say that he officiated at the ceremony as an elder. PW 7 Velayudhan, former husband of 1st respondent, also stated that the marriage was dissolved, long before the birth of the child. . The trial Magistrate, accepting the evidence of PWs. 6 and 7 as reliable, found that the marriage was dissolved long prior to the birth of the 2nd respondent, beyond the compass of S.112 of the Evidence Act. Access, presumed or factual was thus found against. The magistrate also found that the relationship of petitioner and 1st respondent, once neighbours, blossomed into much more leading to the birth of 2nd respondent, the love child of this relationship.