Women to Prove ligitimacy of child for maintenance

Karnataka High Court
Chaya vs K.G. Channappa Gowda on 22/9/1992

ORDER

1. This Criminal Revision Petition is filed by the petitioner under section 397, Cr.P.C. against the order dated 25-10-1989 passed by the Prl. Sessions Judge, Shimoga in Cr.R.P. No. 12/89 setting aside the order dated 11-1-1989 passed by the Munsiff and J.M.F.C., Thirthahalli in C.Misc. No. 24/86.

2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent fully and perused the records of the case.

3. The petitioner filed a petition under section 125, Cr.P.C. claiming
maintenance for her minor child Chaya. The petitioner examined PWs. 1
to 4 on her behalf and got exhibited Exs. P1 and P2. The respondent got
examined himself as PW 1 and closed his evidence. After hearing both
sides the learned J.M.F.C., Thirthahalli allowed the petition of the
petitioner and granted maintenance of Rs. 200/- to the minor child
Chaya and he also directed that out of this amount. Rs. 100/- to be
deposited by the guardian of the childl in the bank. Being aggrieved by
this order the respondent preferred Cr.R.P. 12/89 in the Court of
Sessions Judge, Shimoga and the learned Sessions Judge, Shimoga after
hearing both sides allowed that revision petition and set aside the
order of the learned J.M.F.C. allowing the petition of the petitioner
and dismissing the petition of the respondent. The petitioner is
aggrieved by the said order and hence she has preferred this revision
petition.

4. The case of the petitioner is as follows :- That she is coolie and
she was going to the land of the respondent for coolie work. On one
such occasion, the respondent took her to a nearby abandoned house and
had sexual intercourse with her by force. Even subsequently also, the
respondent had sexual intercourse with her. She did not bring it to the
notice of any persons as the respondent told her that the disclosure of
the incidents will bring dishonour to her. As a result of sexual
intercourse with the petitioner, she conceived and she asked the
respondent to do something in the matter. She convened a panchayat and
in the panchayat the respondent denied that he had any sexual
relationship with her. The panchayatdars gave a decision to the effect
that respondent should pay Rs. 500/- to the child and some paddy, also.
This decision was not accepted by the petitioner as well as by the
respondent. She made representation to the Chief Minister and also
filed complaint to the police and ultimately she filed a petition under
section 125, Cr.P.C. in the trial Court. The defence of the respondent
is that of total denial.

5. At the outset itself, the judgment of Sessions Judge cannot be said
to be a proper judgment in the sense that he has not framed proper
points for consideration and he has dealt with the matter in a very
cursory and sketchy manner. He has relied on the ruling
, which is to the effect that the mere statement on
oath of the mother regarding paternity of he child when the issue is
whether a certain man is the father of that child or not, cannot be
accepted without corroboration. The learned Sessions Judge has not
cared at all to discuss the evidence of PWs 2 to 4. He has not cared
even to refer to that evidence. It was expected of him to apply his
mind to all the materials on record and thereafter to dispose of the
Criminal revision petition. The learned Sessions Judge has not framed
proper points for consideration. His reasons are very sketchy and he
has not referred to the relevant evidence on record. Therefore that
judgment cannot be sustainable in law. The next question is as to what
should be the order to be passed by this court in this matter i.e.
whether to restore the judgment of the trial Court or to remand the
matter to the Sessions Judge, Shimoga for disposing of the appeal
afresh. In my opinion, there is no necessity to remand the matter as
the entire evidence that is required to be considered on the points
involved in this case is on record and this Court can as well go
through the evidence and find out whether the judgment of the trial
Court is sustainable in law or not.

6. The evidence in this case is as follows :- P.W. 1 is the mother of
the child Chaya and she has stated that she is a coolie and she was
engaged as a coolie to bring manure from the land of one Basappa Pujari
to the land of the petitioner and at that time the petitioner had
sexual intercourse with her by force in an abandoned house and
subsequently also he had sexual intercourse with her and as a result of
which she conceived. She has also deposed that she told the respondent
that she had become pregnant by his sexual intercourse. She has also
stated that when she told the respondent would disclose about his
having intercourse with her, the respondent told her that he has got
wife and children and he would deny it and she would only face disgrace
thereby. She has also stated even thereafter he having sexual
intercourse with her and as a result of which she conceived and she
informed about her having become pregnant by his having sexual
intercourse. Then she was taken to Shimoga for getting the pregnancy
aborted. She has also further deposed that she gave birth to the child
Chaya and a panchayat was convened in which the panchayatdars directed
the respondent to pay Rs. 500/- and paddy to the child. But that
decision was accepted neither by the petitioner nor by the respondent.
She has also deposed that she complained to the various authorities
including the police and ultimately she filed a petition under section
125, Cr.P.C. PWs. 2 to 4 have deposed about the panchayat convened in
which the panchayatdars gave a decision that the respondent should pay
Rs. 500/- and 2 quintals of paddy to the child.

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7. On behalf of the respondent, he has examined himself as PW 1. He has
denied about his having any sexual intercourse with the petitioner but
he admits that she is a cooli and she maintains herself by doing cooli
work and he also admits about the panchayat convened in the village.
This case involves a very important question of law as to whether the
evidence of a woman to the effect that a particular person is the
father of the child born to her should be accepted without
corroboration when the paternity of the child is disputed. The learned
counsel for the petitioner relied on , (Bharwada Bhoginbhai Hirjibhai v. State of Gujarat) wherein it has been held that at page 1099 of Cri LJ :-

“Corroboration is not the sine qua non for a conviction in a rape
case. In the Indian setting, refusal to act on the testimony of a
victim of sexual assault in the absence of corroboration as a rule,
is adding insult to injury. Why should the evidence of the girl or
the woman who complains of rape or sexual molestation be viewed with
the aid of spectacles fitted with lenses tinged with doubt,
disbelief or suspicious ? To do so is to justify the charge of male
chauvinism in a male dominated society. , Rel. on.”

It was further held that :-

“A girl or a woman in the tradition bound non-permissive society of
India would be extremely reluctant even to admit that any incident
which is likely to reflect on he chastity had ever occurred. She
would be conscious of the danger of being ostracized by the society
or being looked down by the society including by her own family
members, relatives, friends and neighbours. She would face the risk
of losing the love and respect of her own husband and near
relatives, and of her matrimonial home and happiness being
shattered. If she is unmarried, she would apprehend that it would be
difficult to secure an alliance with a suitable match from a
respectable or an acceptable family. In view of these and similar
factors the victims and their relatives are not too keen to bring
the culprit to book. And when in the face of these factors the crime
is brought to light there is a built in assurance that the charge is
genuine rather than fabricated.”

He relied on 1990 SC Judgments Crl p 18 (State of Maharashtra v.
Chandra Prakash) wherein their Lordships of the Supreme Court have
referred to this ruling and reiterated the principle that the testimony
of a prosecutrix in case of rape can be acted upon without
corroboration. But the rulings of the Supreme Court relied upon by the
learned counsel for the petitioner are in respect of the case of a rape
where the sexual intercourse takes place without consent and against
the wishes of the victim. If it were to be a case where the child is
conceived as a result of the sexual intercourse committed by rape,
these rulings may come to the aid of the woman claiming maintenance for
the child born out of such sexual intercourse by rape. But in a case
where the child is born due to the sexual intercourse not by rape but
with consent of both sides, these rulings will have no application.

8. In a case where the child is alleged to have been conceived due to
the sexual intercourse between a man and a woman with the consent of
both sides, the woman will be a party to that sexual intercourse with
consent. In view of this position, her evidence will be that of an
accomplice. Therefore it will not be safe to rely on the evidence of a
woman who alleges that a particular man is the father of a child borne
by he due to the sexual intercourse with her without proper
corrboration when the paternity of the child itself is in issue.

9. In , (Thakur Prasad v. Mt. Godavari Devi), the
Patna High Court has held as follows at page 684; of Cri LJ :-

Where the question at issue is whether a certain man is the father
of certain child, it is prima facie improper to accept without
corroboration, the mere statement on oath of the mother who asserts
the parternity. Her evidence in such a case cannot but be highly
interested, and it would be unreasonable and improper for any Court
to act merely on her own statement without some independent
corroboration thereof. Such corroborative evidence may be
circumstantial but it must be such as to corroborate the evidence of
the woman that the child was born of the alleged father. The fact of
improper association after the child was born would not be
sufficient to corroborate her evidence.”

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His Lordship has referred to the observations of Lord Reading in Thomas
v. Jones (1920) 2 KB 399 wherein his Lordship has said that
corroborative evidence was required in such cases in order to protect
men against wicked or unfounded charges which might be so easily made
if the evidence of the woman without corroborative testimony was
sufficient. But while discussing as to what kind of evidence is
necessary to corroborate, his Lordship has held as follows :-

“But it would be in a high degree dangerous to attempt to formulate
the kind of evidence which would be regarded as corroboration,
except to say that corroborative evidence was evidence which shews
or tends to shew that the woman’s story was true.”

10. In 1970 Mad LJ 573 (Ummini Kunjuraman v. Meenakshi Syamala) their
Lordships have held as follows :-

“The burden is upon the woman to establish the paternity of the
child and to show that the person from whom she claims maintenance
for the child is the father of the child. It is prima facie improper
to accept without corroboration mere statement on oath by the mother
who asserted that the opposite party is the father of the child. The
evidence of the wife shall be corroborated either by direct or some
circumstantial evidence to establish that during the period when the
wife could have conceived the child, the wife and the alleged father
had some access to each other.”

10A. In , (Bhaskaran v. Kunhipennu) the Magistrate had
passed an order for maintenance on the testimony of the mother of the
child to bring paternity which was not corroborated. His Lordship of
the kerala High Court held relying on AIR 1951 Patna quoted above that
the trial Court was wrong in relying on the uncorroborated testimony of
mother to hold that the child was born to that particular man.

11. In 1992 Criminal Law Journal 493, (Smt. Ahalya Bariha alias
Barihani v. Chhelia Padhan) the Orissa High Court held that at page 495
:-

“While deciding of the case of entitlement of a child, paternity and
not legitimacy has to be seen. Where maintenance is claimed for an
illegitimate child from an alleged father, it is not enough that
defendant would have been the father, but the court has to find out
that in all reasonability no one else could have been the father.”

12. In 1981 Cri LJ NOC 40 (Ker) (Muhammed v. Sulekha), the Kerala High
Court has held that as a matter of prudence, the Court must see oral
testimony of the mother before acting upon the said evidence. His
Lordship also held that the courts cannot in all cases insist on the
person, who is alleged to be the father of the child, to allege and
prove any motive for the woman to put forward such a case.

13. In view of the fact that in a case where a woman comes forward
saying that a child is born due to the sexual intercourse by her with a
particular man with her consent, the position of that woman will be
that of an accomplice. She will be a party to the sexual intercourse
which according to her has led to the birth of the illegitimate child
for whom she is claiming maintenance from the man who she alleges is
the father of the child. In view of this position, the law insists that
before the evidence of such a woman can be accepted, it must be
corroborated. Corroboration is insisted by the court not as a rule of
law but as a rule of prudence to satisfy the conscience of the Court.

14. I agree with the principles laid down by various High Courts
referred to above in which it is said that it will not be safe to
accept the evidence of the mother of a child without proper
corroboration in a case where the paternity of the child is disputed.
But what is the kind of evidence which should be recorded as
corroboration ? There is no hard and fast rule as such. To quote, his
Lordship of the Patna High Court has said that it will be highly
dangerous to formulate the kind of evidence which will be regarded as
corroborative except to say that corroborative evidence must be such
which will tend to show that the woman’s story is true. There is no
hard and fast rule of law which lays down that a particular type of
corroboration is necessary in all cases. What will be the corroborative
evidence which will be acceptable will depend on the facts and
circumstances of each case. If woman is of a loose character and easy
virtue and having anticidents of her association with more than one
man, then the Court would accept a corroboration which is of a higher
order than a corroboration in a case of a woman of a good character and
who had no anticidents of any moral lapses on her part. Therefore what
should be corroborative evidence will differ from case to case.

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15. The evidence of PW 1 is to the effect that Chaya is born to the
petitioner due to sexual intercourse of the respondent with her.
Petitioner is coolie. She is not married. There are no allegations by
the respondent that she is a woman of bad character. He has also not
alleged that she was having any connections or any association with any
other persons in the village or society. The respondent has come up
with the defence that due to instigation of one Yogendra the petitioner
has filed the false case against him. If enmity is between Bhupendara
Gowda and the respondent, why the petitioner should become a tool in
the hand of Yogendra so as to tarnish her own character in that process
? No woman will come forward with such a claim at the instigation of
others and that too to satisfy some individual who wants to have his
vendetta against the respondent. The respondent is not a big business
tycoon or a great leader or a very rich man so that he could be
involved falsely by the petitioner at the instance of his enmity to
ruin him in his reputation and career and cause him damage in the eyes
of the society. Therefore the defence taken by the respondent that the
petitioner has filed this case at the instance of Yogendra has no
substance in it. But the Court cannot accept the evidence of PW 1
merely on the ground that the defence set up by the respondent appears
to be not genuine and true. The Court will have to see whether there is
any corroboration for accepting or acting on the evidence of PW. 1. As
I have already pointed out, PW. 1 is a poor coolie woman and she is not
married and yet she was given birth to a child Chaya and it is her
claim that the child is born due to sexual intercourse the respondent
had with her. The respondent has not whispered a word about the
character of the petitioner. He has not stated either in his evidence
or in his objections that the petitioner is a woman of bad character or
that she had any such antecedents of her having association with
different men. If PW 1 were to be a woman without character and having
antecedents of moral lapses, court would have insisted on a
corroborative evidence which would have been of a higher type than the
evidence which is required for corroboration in the case of a woman
against whom there are no allegations regarding any moral lapses on her
part. Now the court will have to see whether the evidence of PWs. 2 to
4 can be considered as the evidence that corroborates the evidence of
PW. 1. The learned counsel for the respondent submitted that the
evidence of panchas is nothing but the repetition of the allegations
made by the petitioner against the respondent. It is not disputed by
the respondent himself that such a panchayat was convened and in that
panchayat he appeared once. The respondent has avoided to give as to
what was the decision of the panchas. That we get it in the evidence of
PWs. 1 to 4. In my opinion, the evidence of panchas cannot be brushed
aside on the ground that it is nothing but the repetition of the
evidence of the petitioner. The respondent himself has admitted in his
evidence that petitioner was even questioning him on the streets and,
therefore, he was constrained to request for the convening of the
panchayat. The conduct of the petitioner, respondent and the
panchayatdars is a relevant factor. It will be very dangerous to say
that a particular type of corroboration is required in all the cases
irrespective of the facts and circumstances of the case. The very fact
that the panchayat was convened in the village which was attended by
the respondent himself and in which the panchayatdars ordered the
respondent to pay Rs. 500/- and 2 quintals of paddy is a circumstance
which corroborates the evidence of PW. 1. Therefore I am of the opinion
that the evidence of PW. 1 was rightly accepted by the trial Court as
it is corroborated by the evidence of Pws. 2 to 4.

16. For the reasons discussed above. I make the following :-

ORDER

The Criminal Revision Petition is allowed. The impugned order passed by the Sessions Judge, Shimoga is set aside and the order of the Munsiff and J.M.F.C., Thirthahalli in C. Misc. No. 24/86 is restored.

17. Petition allowed.

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