SAGARMAL Vs. ASHA DEVI

JUDGEMENT

(1.) THIS is an appeal directed against the judgment and decree of the District Judge, Jaipur City, in a suit wherein he awarded a sum of Rs. 150/- per month by way of maintenance to a minor daughter payable by her putative father. 2. Asha Devi through her mother and next friend Smt. Shakuntla Devi instituted a suit claiming maintenance allowance in the sum of Rs. 1,000/- per month against Sagarmal Bengani. The allegations made by the plaintiff were that defendant-appellant Sagarmal, a man of considerable means, held out hopes and temptation to Smt. Shakutla some time in 1944, as a result of which Smt. Shakuntla, although a married woman, started living with Sagarmal some times at Jaipur and some times at Calcutta as his concubine. Sagarmal passed off Smt. Shakuntla as his wife on social occasions and took her out to clubs and social gatherings; So much so that even the people of Sagarmal's family, who were aware of this relationship, gave her a recognition as the wife of Sagarmal. The first conception of this relationship took place some time in 1949, but it miscarried. The second resulted in the birth of the plaintiff-respondent, Asha Devi, on the 5th May, 1950 at Jaipur. Around the time when Asha Devi was born and thereafter the affection of Sagarmal for Smt. Shakuntla abated and he started neglecting her, and by the time the suit came to be instituted in 1952 he had long abandoned her. Notices were exchanged between Sagarmal and Smt. Shakuntla but without any result. Asha Devi's case is that Sagarmal is one of the proprietors of M/s. Jeewanmal Chandanmal, a very big Marwari firm in Calcutta, which owns extensive business and Sagarmal also owns considerable landed properties in Calcutta and Ladhu, which yield him an income of about twenty five to thirty thousand rupees per month. Having regard to the position of the parties Asha Devi claimed that she was entitled to a maintenance of Rs. 1,000/- per month and made a total claim for Rs. 21,000/-for twenty one months' arrears. Asha Devi was permitted to sue as a pauper. The defendant-appellant Sagarmal entered appearance and submitted a written statement. He denied that Smt. Shakuntla ever lived as his wife, or conceived through him, or there was any mis-carriage as alleged by the plaintiff. He stoutly denied that he was the father of Asha Devi and therefore legally liable to maintain her or her mother. The receipt of the notices was, however, admitted but it was alleged that they were duly answered. Sagarmal admitted that he was one of the proprietors of M/s. Jeewanmal which owns movable as well as immovable properties. He disputed the estimate of income as given by the plaintiff without stating,in the written statement as to his approximate income. He repudiated the claim of Asha Devi for Rs. 1,000/- per month or for any amount. He submitted that the suit was instituted by the mother Shakuntla with a view to black-mail him. He alleged that a petition was made against him by Smt. Shakuntla before the Chief Presidency Magistrate, Calcutta under sec. 488 of the Code of Criminal Procedure, in June, 1950, but it was withdrawn in August, 1950 on an application by Smt. Shakuntla on ground that she had no cause of action against Sagarmal. Another petition was made against Sagarmal before the City Magistrate, Jaipur City under sec. 488 of the Code of Criminal Procedure, in April 1951, which was dismissed after prolonged proceeding in November, 1952. In the meanwhile complaint was made by Moolchand, the husband of Smt. Shakuntla against Sagarmal under secs. 497 and 498 of the Indian Penal Code, which was also dismissed in August, 1952, and Sagarmal was discharged from that accusation. Smt. Shakuntla made another application to the Court of City Magistrate asking him to prosecute Sagarmal under sec. 173 of the Indian Penal Code the same was also rejected in November, 1951. Sagarmal contended that Smt. Shakuntla is a Brahmin by caste and governed by Hindu Law. Her marriage with Moolchand subsisted. Legally, therefore, Asha Devi is the daughter of Moolchand and can claim no maintenance if any, from him. He also pleaded that he was a Jain and was not bound by his personal law to maintain the plaintiff. He contested the territorial jurisdiction of the court. 3. Out of the rival contentions of the parties, the learned District Judge framed four issues which may be reproduced in the interest of exactitude: 1. (a) Whether the defendant lived with the plaintiff's mother in sexual relationship and passed her off as his wife O. P. (b) Whether Mst. Asha Devi was conceived during the relationship referred to in (a) and the defendant is her putative father? O. P.

(2.) IN case the reply to issue No. 1 (a) and (b) be in the affirmative, to what monthly maintenance the plaintiff is entitled and since when? O. P.

(3.) THE next argument of the learned Advocate General is that Sagarmal is not the putative father of Asha Devi. In this connection, it will be relevant to briefly review the statement of Sagarmal and the evidence led by him. Sagarmal's examination-in-chief makes a reference to the previous litigation between him on the one hand and Shakuntla and Moolchand on the other. He has repudiated that he took any house in Jaipur for Shakuntla either Deputy Narain's house or Ladiwalon's house. He disowned having taken Shakuntla to Calcutta or called her or kept her in Princes Mansion. According to him, it was Sobhagmal alias Lallu who had introduced Shakuntla Devi to him. Sobhagmal used to visit her. In 1949 a month or two after Holi, states Sagarmal that his wife had become ill and, therefore, he had gone away to Ladnu. He remained in Ladnu for about 7 or 8 months and during that period he never visited either Calcutta or Jaipur on account of the serious illness of his wife. In his cross-examination, however, he has admitted that he had sexual connection, with Shakuntladevi three or four times,but he does not remember what he paid her. He has stated that she was never in his keeping. Before the City Magistrate, however, he had filed a reply in answer to the petition by Shakuntla Devi under sec. 488 Cr. P. C. , which included the words, "access to the applicant at the time when the child in question could have been conceived was not confined to the opposite party alone. " He has admitted that his personal monthly income may be Rs. 2,000/- a month. He has professed that the only woman he loved was his wife. He has stated that he had no knowledge with regard to the birth of Asha Devi. He has completely dis-owned even knowing Jana Bai or that Jana Bai had lived with Shakuntla. When confronted with the photograph, he said that he was unable to say that the lady shown in the photograph (Ex. 5) was Shakuntla Devi or not, and then he adds that even on comparing the lady in the photograph (Ex. 5) with Shakuntla there are many differences. What these differences were he was unable to specify. What is still more remarkable is that when questioned about his own photograph which is Ex. 5 he evaded the question by saying as to what was the difference between himself and the man in Ex. 5.