M KANNIAPPAN Vs. KULLAMMAL

JUDGEMENT

(1.) This is a Revision Petition against an order of the Third Presidency Magistrate granting the petitioner maintenance allowance at the rate of Rs. 5 per mensem in respect of her younger child. The question in issue is whether the counter petitioner has been shown to be the father of that child.

(2.) The first point taken is that the learned Presidency Magistrate has overlooked the provisions of Section 112, Evidence Act. He appears to find that petitioner's husband divorced her, but he does not explain what meaning he attaches to that term, and using it in the sense of a legal dissolution of the marriage it is clear that no divorce has taken place. I must take it therefore that, in the language of Section 112, the child was born "during the continuance of a valid marriage" between the petitioner and her husband. It has then to be shown, for the petitioner to succeed, that the parties to that marriage "had no access to each other at any time when he (the child) could have been begotten." On the date when petitioner gave evidence (5 October 1928) she gave the age of the child as four years, and stated that the counter petitioner had been keeping her for fourteen years. Her husband was employed in Bangalore, but some years before the child was born she came to Madras and lived with her father. Evidence which the lower Court has accepted shows that when the elder son three years senior to the younger was born petitioner's husband severed relations with her, on the ground that he was not the father even of that child; and certainly for some long while before the younger was born he had been living in Bangalore and his wife had been living in Madras. I think it may fairly be inferred, from this circumstance and from the relations shown to have been existing between petitioner and her husband, that he had no access to her at the time the younger child was begotten.

(3.) On the specific issue of the counter petitioner's paternity, the learned Presidency Magistrate has admitted certain evidence which is in my view inadmissible. The entry Ex. A in the vaccination register, which includes a statement by petitioner that a person bearing counter petitioner's name was the father of the child, was made three years after its birth and does not therefore satisfy the terms of Section 157, Evidence Act. I doubt whether such a statement is rendered admissible by Section 35. So too, the activities of P.W. 6, the caste headman, in trying to prevent counter petitioner's marriage do not constitute admissible evidence, though the objection does not apply to the evidence of P.W. 3, that the counter petitioner sought his help to pay money to the petitioner to dissuade her from creating trouble over the marriage.