PHILOMENA MENDOZA Vs. DARA NUSSERWANJI MISTRY

JUDGEMENT

(1.) THIS is a pauper petition filed by the petitioner who alleges that she is the illegitimate child of the respondent and claims maintenance from him. The petition of the petitioner to sue in forma pauperis came on before the Prothonotary, and the Prothonotary feeling some doubt as to whether the petition disclosed any cause of action referred it to the Chamber Judge, Mr, Justice Kania rejected the petition under Order XXXIII, Rule 5(d), of the Civil Procedure Code, 1908, holding that the allegations in the petition did not show a cause of action. From this decision of Mr. Justice Kania the petitioner appealed and the Court of Appeal reversed the order of Mr. Justice Kania and held that the petition should be accepted assuming that pauperism is proved. In the judgment of the Appeal Court the learned Chief Justice stated that it was not an absurd application on the part of the petitioner if she could establish that she was the illegitimate child of the respondent. He went on to observe : Whether such a cause of action is likely to succeed may be doubtful. But I am not prepared to say off-hand that it necessarily cannot lie, I do not know of any case binding on this Court and still less of the Privy Council, which so decides. After this decision of the Court of Appeal the usual notice was served on the respondent. The respondent appeared before the Prothonotary and contended that under Order XXXIII, Rule 7, the petitioner's petition should be refused because the applicant was subject to the prohibition specified in Rule 5, Sub-rule (d). The Prothonotary held against the contention of the respondent and granted the petitioner leave to sue in forma pauperis. THIS decision of the Prothonotary has been referred to me under Rule 90 of the Bombay High Court Rules at the instance of the respondent.

(2.) THE first contention of Mr. Menezes is that the Court of Appeal having held that the petition disclosed a cause of action I was bound by that decision and that I should permit the petitioner to sue in forma pauperis, she having established her pauperism. It has to be remembered that when the Court of Appeal reversed the order of Mr. Justice Kania the petition had not gone beyond the stage of Order XXXIII, Rule 5 . It was an ex parte application on the part of the petitioner; the respondent had not been heard and he had not had an opportunity to advance arguments; and the Court of Appeal took the view that prima facie the petition should not be rejected on the ground that the allegations in the petition did not show a cause of action. THE petition has now progressed to a further stage, and the respondent has now had an opportunity to appear and to submit his arguments, as provided under Order XXXIII, Rule 7, to satisfy me that I should refuse the petitioner to sue as a pauper. If I am so satisfied by the arguments advanced by the respondent, I do not see why I cannot decide in his favour although the Court of Appeal, on an ex parte application without having the benefit of the respondent's arguments, came to a contrary conclusion.

(3.) COMING to India there is no decision on this question either of our Court or of any other Court in India which relates to Parsis. But there is a decision of the Madras High Court in Lingappa Goundan v. Esudasan (1903) I.L.R. 27 Mad. 13, where a Hindu had an illegitimate child by a woman who was not a Hindu. The child claimed maintenance and its claim was rejected on the ground that there is no text of Hindu law under which an illegitimate son of a Hindu, by a woman who is not a Hindu, can claim maintenance. In the judgment of the Court of Appeal consisting of Mr. Justice Benson and Mr. Justice Bhashyam Ayyangar it is pointed out that if a child is entitled to claim maintenance under the common law, then the statutory remedy given by Section 488 of the Criminal Procedure Code, 1898, will only be a cumulative remedy and will not take away the remedy under the common law; but in regard to illegitimate children who are not under the common law entitled to claim maintenance, then their only right is under the statute and can only be enforced by the particular remedy provided by the statute. There is no doubt that the petitioner has a statutory remedy given to her under Section 488 of the Criminal Procedure Code and she is entitled to enforce that right by the remedy provided by that statute. But apart from that statute, before I can hold that she is entitled to maintain this petition, it is for her to satisfy me that she has some right under the common law over and above the right given to her under the statute.