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Burden is upon the woman to establish the paternity.

Himachal Pradesh High Court

Darje Wangial vs Karam Singh on 18/11/1996

JUDGMENT: R.L. Khurana, J.

1. This criminal revision has been filed by the petitioner under Section 397 of the Code of Criminal Procedure against the order dated 25.8.1993 of the Sessions Judge, Shimla setting aside the order dated 12.11.1992 of the Chief Judicial Magistrate, Kinnaur granting maintenance under Section 125, Code of the Criminal Procedure to the petitioner.

2. The sole ground for determination in the present case is-whether the
petitioner is illegitimate child of the respondent and entitled to
claim maintenance from the latter.

3. The petitioner, a minor child, through his mother Smt. Ganga Mani
filed a petition under Section 125 of the Code of Criminal Procedure
claiming maintenance at the rate of Rs. 500/- per month. It was averred
that the mother of the petitioner and her friends had decided to
arrange a dinner party on 23.5.1989 in Village Kanam for a newly wedded
couple Suresh Pal and Mangal Devi. On 22.5.1989 at about 9 p.m. the
mother of the petitioner accompanied by her friend Inder Mani went to
inform other friends about the party. When they were on the way to the
house of Inder Dassi at Garbong, they met the respondent and one
Mohinder Singh on the way. The respondent forcibly took the mother of
the petitioner away in the fields of Udey Singh, while Mohinder Singh
took away Inder Mani. The respondent and Mohinder Singh respectively
subjected the mother of the petitioner and Inder Mani to sexual
intercourse. As. a result of such sexual intercourse, the mother of the
petitioner as well as Inder Mani became pregnant. Mohinder Singh, above
named married Inder Mani some time in the month of February, 1990 and a
son was born to her out of the loins of said Mohinder Singh on
26.2.1990. The respondent did not marry the mother of the petitioner.
He was selected as a Clerk in the office of the District Excise and
Taxation Office, Kullu in the month of December, 1989. He has
approached time and again by the mother of the petitioner for marriage,
but he kept on delaying on one pretext or the other. Left with no
alternative, the mother of the petitioner sent S/Sh. Deva Lal and
Jundhan Ram of Village Kanam to the respondent, who is alleged to have
admitted having had sexual intercourse with the mother of the
petitioner and the resultant pregnancy. He further assured the said two
persons that he would be coming on leave shortly and thereafter he
would perform a marriage with the mother of the petitioner in
accordance with the custom prevailing in District Kinnaur. The
respondent also handed over a letter to said Deva Lal for being
delivered to his father. The mother of the petitioner kept on waiting,
but the respondent did not turn up. The petitioner was born on
19.2.1990 from the loins of the respondent. Therefore, by alleging
himself to be the illegitimate child of the respondent, maintenance was
claimed by the petitioner from the respondent.

4. The respondent while resisting the petition denied the petitioner to
be his illegitimate child. It was averred that he never had any sexual
intercourse with the mother of the petitioner and that the petitioner
was not born from his loins.

5. Three witnesses were examined on behalf of the petitioner apart from
his mother, who appeared as AW-1. In rebuttal, the respondent appeared
as his own witness as RW-1 besides examining one Arjun Singh as RW-2
and Krishan Dev, father of the respondent as RW.3.

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6. The learned Magistrate, upon consideration of the material placed
before him came to the conclusion that the petitioner is the
illegitimate child of the respondent and as such entitled to
maintenance. He, accordingly, vide his order dated 12.11.1992 allowed
maintenance at the rate of Rs. 300/- per month in favour of the
petitioner.

7. The respondent went up in revision before the learned Sessions Judge
being Criminal Revision No. 27-S/10 of 1993. The said revision petition
was allowed by the learned Sessions Judge on 25.8.1993. The order of
the learned Magistrate granting maintenance in favour of the petitioner
was set aside and it was held that the petitioner was not proved to be
the illegitimate child of the respondent.

8. It is in the statement of the mother of the petitioner as AW-1 that
she was subjected to sexual intercourse by the respondent with her
consent. She has gone to the extent of stating that she was subjected
to sexual intercourse by the respondent on two to three occasions even
prior to 22.5.1989.

9. In a case where a child is alleged to have been conceived and born
due to the sexual intercourse between a man and woman with the consent
of both the parties, the woman will be a party to that sexual
intercourse with her 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 born by her due to the sexual intercourse with her
without proper corroboration especially when the paternity of the child
itself is in issue.

10. In Thakur Prasad v. Mt. Godavati Devi, AIR 1951 Patna 514, the
question at issue was whether a certain man was the father of a certain
child. It was held : “It is prima facie improper to accept without
corroboration, the mere statement on oath of the mother who asserts the
paternity. Her evidence in such a case cannot but be highly interested,
and it would be unreason- able 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 factum of improper association after the child
was born would not be sufficient to corroborate her evidence.”

11. In Bhaskarn v. Kunhipennu, AIR 1960 Kerala 110, maintenance was
granted in favour of the child by the Magistrate on the basis of the
sole uncorrobo- rated testimony of the mother. Relying upon the ratio
laid down in Thakur Prasad’s case (supra), it was held by the Kerala
High Court that the Trial Court was wrong in relying on uncorroborated
testimony of the mother to hold that the child was born out of the
loins of that particular man.

12. Again in Muhammed v. Sulekha, 1981 Cri. LJ NOC 40 (Kerala), it has
been held that as a matter of prudence, the Court must seek
corroboration to the oral testimony of the mother before acting upon
such evidence. It was further 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.

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13. A similar view has been taken by the Orissa High Court in Smt.
Ahalya Bariha @ Barihani v. Chhelia Padhan, 1992 Criminal Law Journal
493=I (1992) DMC 158, it was held in the following terms : “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.”

14. In Ummini Kunjuraman v. Meenakshi Symala, 1970 Mad. L.J. 573, their
Lordships have held as follows : “The burden 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.”

15. A similar view has been taken by the High Court of Karnataka in
Chaya v. K.G. Channappa Gowda, 1993 Crl.L.J. 767 and by the Gauhati
High Court in Kh. Ningol Ibetombi Devi & Anr. v. Dr. Pukharambam
Ibomcha, 1993(1) Crimes 182.

16. The evidence coming on the record in the present case, is,
therefore, required to be examined in the light of the principles
quoted above. AW-1 Smt. Ganga Mani, the mother of the petitioner has
stated that on 22nd May at about 9 p.m. she alongwith Inder Mani was
going to invite Inder Dassi for the dinner party. She was met on the
way by the respondent and Mohinder Singh. She has further stated that
the respondent caught hold of her and took her to a nearby field and
subjected her to sexual inter course. Mohinder Singh took Smt. Inder
Mani away to the field and subjected her to sexual intercourse. It is
further in the statement of AW-1 that as a result of such inter course,
she became pregnant and she informed her parents about her pregnancy
about a month after having detected the factum of her pregnancy.

17. AW-3 Deva Lal is the father of the mother of the petitioner. He
stated that he came to know about the pregnancy of AW-1 Ganga Mani in
the month of January, 1990. AW-4 Chungdutt Ram who is the maternal
uncle of Ganga Mani has also stated that he came to know about the
pregnancy of AW-1 in January, 1990. The version coming in the evidence
of AW-3 and AW-4 about the knowledge of the pregnancy of AW-1 stands
contradicted by the statement of AW-1 herself wherein she has
categorically stated about her having informed her parents regarding
the pregnancy about one month after deriving the knowledge that she was
pregnant. Reading the statement of AW-1, it can reasonably be taken
that she must have informed her parents about her pregnancy sometime in
July/August, 1989. AW-2 Inder Mani is the lady who was allegedly
accompanying AW-1 Ganga Mani at the time she was subjected to sexual
intercourse by the respondent. AW-2 is the wife of Mohinder Singh, who
was allegedly in the company of the respondent when AW-1 was subjected
to sexual intercourse by the respondent. Admittedly, AW-2 is a close
friend of AW-1. According to the petitioner’s own case, Mohinder Singh,
the husband of AW-2 is a friend of respondent and on the relevant day
he was accompanying the respondent. This Mohinder Singh is alleged to
have subjected AW-2 to sexual intercourse before marrying her.
Surprisingly this Mohinder Singh has not been examined in the present
case by the petitioner to show that he was accompanying the respondent
at the relevant time when AW-1 was subjected to sexual intercourse by
the respondent.

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18. Much reliance has been placed on the letter Ext. PW-3/A, alleged to
have been written by the respondent to his father and handed over to
AW-3 for being delivered to the father of the respondent. A perusal of
this letter shows that it contains nothing either about the sexual
relations between AW-1 and the respondent or with regard to the
paternity of the petitioner. There is only a mention that the
respondent has come to know about certain facts, about AW- 1 which he
would disclose personally to his father when he comes on leave. Vide
letter Ext. RW-1/A written by the respondent to his father, he has
specifically denied any relationship between him and AW-1 or that AW-1
was pregnant from his loins.

19. The knowledge of AW-3 and AW-4 about AW-1 being pregnant from the
loins of respondent is based upon the information alleged to have been
given to them by AW-1 herself. They are not having any independent
source of information. AW-2 who is alleged to be accompanying AW-1 at
the relevant time also had not seen AW-1 being subjected to sexual
intercourse by the respondent. Her testimony is to the effect that she
was informed by AW-1 about having been subjected to sexual intercourse
by the respondent.

20. Another significant aspect of the case is that though the
petitioner is alleged to have been born on 19.2.1990, nothing has come
on record to show that the factum of the birth of the petitioner came
to be entered in the relevant records maintained by the Panchayat with
regard to births and deaths of the persons. Such births entry atleast
would have been material to show as to who has been recorded as the
father of the petitioner. On the failure of the petitioner to prove
such evidence, an adverse inference will have to be drawn against the
petitioner.

21. The testimony of AW-1, the mother of the petitioner, has thus
remained uncorroborated either by the direct evidence or by
circumstantial evidence. Therefore, it cannot be held that the
petitioner is the illegitimate child of the respondent. The learned
Sessions Judge has, upon proper appreciation of the evidence coming on
the record, come to a right conclusion that the petitioner is not the
illegitimate child of the respondent, and, as such, not entitled to claim maintenance from him.

22. Consequently, the present petition fails and the same is accordingly dismissed.

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