Maintenance to illegitimate Child ?

Andhra High Court

Bench: V R Reddy

Oona Gowri Shankara Rao vs Oona Rajeswari And Ors. on 15/11/1995

ORDER

1. First respondent, the daughter of the 2nd respondent, claimed maintenance under section 125 of Code of Criminal Procedure (for short, ‘the Code’) in M.C. No. 43 of 1990 on the file of the Addl. Judicial Ist Class Magistrate, Parvathipuram, against the petitioner, alleging that she is his illegitimate daughter through the 2nd respondent, since the 2nd respondent, was not married to him. The learned Magistrate, upon an enquiry, allowed the petition and directed the petitioner to pay Rs. 150/- pm, from the date of filing of the petitioner towards maintenance. The petitioner assails the order of the learned Magistrate in this Criminal Revision Case.

2. The case of the 2nd respondent was that the petitioner, though of the same Vysya caste, took advantage of her poverty and developed illicit intimacy with her promising to keep her as his second wife, resulting in the conception and giving birth to the 1st respondent. Though the 1st respondent is the illegitimate daughter, she is entitled to claim maintenance under section 125 of the Code. In support of her case, she examined herself and three other witnesses. She deposed that she and the petitioner belong to Vysya community living in adjacent houses and she used to work in his house washing dishes and also as a cook preparing sweet-meats to supply them in the hotel run by the petitioner. When his wife went to her parents place with the children and she was left alone in his house, the petitioner, promising to keep her as second wife, had assaulted her sexually. The petitioner later on disowned her and the child was born out of the illicit intimacy. Ex.P-1, extract of the Register of Births, disclosed the name of the petitioner as the father of the child. She also examined P.Ws. 2 and 4 to prove that she used to work in the house of the petitioner that she was very intimate with the inmates of the house, and also in support of her case generally and particularly with regard to her intimacy with the petitioner. P.W. 3 is the father of the 2nd respondent and it is he who has given Ex.P-1.

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3. The petitioner, on the other hand, totally denied any connection with her, let alone illicit intimacy and therefore his paternity of the 1st respondent. His further case was that the 2nd respondent was of easy virtue and she was set up to black mail him by the rival faction in the village. He examined himself and three other witnesses. Considering the evidence on record and placing reliance on the evidence of P.Ws. 1, 2 and 4, the learned Magistrate held that the petitioner had illicit intimacy with the 2nd respondent and the he was the putative father of the 1st respondent.

4. The learned counsel for the petitioner strenuously contended that it was highly improper to accept, without corroboration, the mere statement of the mother, who asserts the paternity of the petitioner. The evidence with regard to corroboration should go to show that the mother was found in a compromising situation with the petitioner and mere proof of access would not satisfy the required corroboration. The absence of such an evidence in this case vitiated the order of the learned Magistrate. In support of his contention he cited several decisions, which will be referred to presently.

5. The Court below found the evidence of P.W. 1 (R-2) as trustworthy. It was supported by the evidence of P.Ws. 2 and 4. Nothing was elicited against them and they were found to be independent and competent witnesses to speak about the relationship of the petitioner and the second respondent. The argument that P.W. 1’s evidence was intrinsically improbable, and ought not to have been relied upon by the learned Magistrate, cannot be entertained as I am not sitting as a Court of appeal. It is not permissible, exercising my revisional jurisdiction, the reapprise and reassess the evidence which has been found favour by the Court below.

6. The next question is whether it is required to seek corroboration to the evidence of the mother, regarding the illicit intimacy with the petitioner, in order to determine the paternity of the petitioner.

7. On this aspect the learned counsel for the petitioner cited the decisions, which are referred to and discussed, hereunder :

8. In Rev. C. R. Venkatachari v. Marie, AIR 1926 Mad 1130 : 27 Cri LJ 1095. Wallace, J. observed :

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“… that 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 word without some independent corroboration of it such as will satisfy the Court that her claim is true.”

The kind of evidence that one would look for to be given as corroboration in such a case would be evidence that at or about that time when the child was conceived, the petitioner was frequenting the society of the counter-petitioner, and had opportunities of access to her.”

In Prasad Gareri v. Mt. Kesari, AIR 1941 Pat 444, it was observed that “… it is settled law that it is prima facie improper to accept without corroboration the mere statement on oath of the mother who asserts that a certain man to whom she is not married is the father of her child.

… There is no reference in the judgment to any evidence by which the woman could be said to have proved that Prasad had any opportunity of illicit connexion with her before going to Burma, to return after the birth of the baby. Prasad’s case, AIR 1941 Pat 444 moreover, that he was away in Burma all the time was supported by some witnesses, whose evidence the Magistrate has not considered at all.”

Again in Thakur Prasad v. Mt. Godavari Devi, ,

Rameswari J, referring to the observations made by Wallace J. in Rev. C. R. Venkatachari v. Marie, AIR 1926 Mad 1130 observed : “… There must be evidence to suggest that at or previous to the time when the child could have been begotten there were acts of familiarity between the parties.”

In Bhaskaran v. Kunchipennu, , the above cited

decisions were referred to and it was held : “… that the Court should seek corroboration of the petitioner’s evidence before granting maintenance … … As the matters now stand there is only the uncorroborated testimony of P.W. 1 to prove the paternity of the child. In these circumstances the order passed by the learned Magistrate cannot be supported.”

In Mohammed v. Sulekha, 1981 Cri NOC 40 (Ker), U. L. Bhat J. held : “What is required is evidence to show that at or about the time child was conceived he was frequenting the society of the woman and vice versa, and thereby had access to her. There must be at least some evidence to show that they were seen in each other’s company at or about the relevant time. It would be very startling for Courts to hold that that every person who passed along a road or happens to seen a woman has opportunity of having sexual connection with her. By proof of opportunity or access, something more than seeing a woman across the road in front of her residence is intended.”

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9. From a close reading of the above decisions, what emerges is, where the question at issue was whether a certain person was the father of a child, the mere statement of the mother, without corroboration, asserting his paternity cannot be accepted as the conclusive proof, and that the corroborative evidence should be that, at or about the relevant time when the child was conceived the said person was frequenting the woman and that he had opportunity of access to her. The argument that the evidence should show that the petitioner had illicit intimacy with the woman, is not supported by the above authorities. It is in fact, in the nature of things, highly impossible to expect such evidence. The Court below has found from the evidence of P.W. 1 that the petitioner has illicit intimacy with her which resulted in conception of the child. It also held that P.Ws. 2 and 3 are independent witnesses and being of the same locality are competent to speak about the relationship between the parties. It accepted their evidence which clearly reveal that the 2nd respondent was working in the house of the petitioner, moving closely with the inmates and helping in his hotel business. This evidence was held to be sufficient to show that the petitioner had opportunities of access to the 2nd respondent to develop illicit intimacy. In my view the above evidence supplied the required corroboration and the finding of the Court below is perfectly valid. I, therefore, do not see any good ground to interfere with the order of the Court below. The Criminal Revision Case fails and is accordingly dismissed.

10. Revision dismissed.

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