1. This is an application in revision from an order of the Sessions Judge, Kamaun, upholding an order of a First-class Magistrate refusing to make an order under Section 488 at the instance of a woman called Musammat Kumli for the payment by one Gardiner of Rs. 15 a month for the education of a child, whom the woman alleges to be her illegitimate child by Gardiner.
2. The narrative of case is briefly as follows : - Musammat Kumli was engaged by Gardiner, whose wife was dead, to look after his children some time at the end of 1910 or beginning of 1911. Her husband was in jail, and was released in 1913, in about July as the woman says. She belongs or belonged to the dom caste. She gave birth to a child, the date as alleged by her being November the 15th, 1913. She apparently used to look after Gardiner's children during the winter months and, usually, if not always, return to her home, a village three miles outside Naini Tal, during the hot months, when the children were at Naini Tal.
3. She left Gardiner's service in 1919, according to her own account, but more probably in the first half of 1916, as alleged by Gardiner. She at least is certainly wrong about the date because she admits that settlement was made with her at the end of 1918, admittedly also a long while after she was turned out. She says she was turned out because, as Gardiner said, she was now beginning to have children and she admits that not long afterwards she had a 4 months miscarriage.
4. Towards the end of 1918 Gardiner paid her Rs. 300 in settlement of her claims. Four and a half years later she has lodged the present application, asking for payment of Rs. 15 a month to be made by Gardiner to somebody she calls the 'Sector of the school', for the education of the child. She has informed me in this Court that she is now a Roman Catholic and that the 'Rector of the school' to whom her application refers is the Roman Catholic Bishop of Lucknow.
5. Both Gardiner and the woman are agreed in asserting, whether truly or falsely, that the settlement made at the end of 1918 by the payment of Rs. 300 did not concern the child. Gardiner denies paternity and therefore, as must follow, denies that any settlement was made for the child. He denies that he ever had or accepted responsibility for it. The woman declares that the settlement did not include the child but was a payment to herself and that Gardiner said he would be responsible for the future of the child.
6. The Magistrate disbelieved very much the woman's story and came to a definite finding that 'in such surroundings it is impossible to say who may or may not have had sexual intercourse with Mussammat Kumli who is a woman of loose character.' In other words, he found it impossible to attribute paternity to Gardiner. He further appears to have attached some weight to the fact that if the woman got Rs. 300 'it is fairly obvious that this must have boon done to prevent her making any sort of claim whatever again for maintenance.' The learned Sessions Judge held:
(a) That Section 488 does not provide for education expenses.
(b) That the payment of Rs. 300 'appears to have satisfied all Musammat Kumli's claims.'
(c) That the payment of Rs. 300 and the letters filed 'strongly support her allegation of intimacy with Gardiner.'
(d) And that he 'would consider that the preponderance of probabilities strongly favour Musammat Kumli's claim that Mr. Gardiner is the father of the boy Harry.'
7. He has not found definitely whether or not Gardiner is the father of the child.
8. Both Courts in dismissing her claim ordered the payment of Rs. 300 costs to Gardiner. The woman has applied in revision to this Court.
9. The learned Acting Chief Justice issued notice to Gardiner to show cause:
(1) Why the case should not be remitted to the Magistrate to hear according to law.
(2) Under what circumstances he alleges that any previous payment or gift of a house in 1918 was accepted by the lady as a composition for her claim under Section 488.
10. The only issues in the case really were:
(1) Has the woman, Musammat Kumli, any right to make the application in her own name?
(2) Do 'educational expenses' (for which alone she asks) come within the term 'maintenance' in Section 488 so as to permit of an order being made for the payment of such expenses?
(3) Is the child proved to be the child of Gardiner?
11. As to the first question, it is clear that Section 488 contemplates applications by a wife or a child. In this case there is no question of a wife. Musammat Kumli only alleges herself to be discarded mistress, and the application should have been made by the woman as guardian of the child and for the child. This would only have called for a formal amendment which could have been rightly permitted had the point been noticed in the Courts below, and I have in fact here treated the application as if it had been made by the woman not in her own name but as guardian of the child and for the child.
12. This is not a mere technicality for had the point been noticed the lower Courts would not have fallen into the error of speaking of the payment of Rs. 300 by Gardiner as if it was a composition of the claims of the child and further the second portion of the rule issued to Gardiner by the learned Acting Chief Justice would not, as I think, have been issued in its existing form. Properly regarded, the payment of the Rs. 300 could be weighed as evidence of an intimacy between Gardiner and the woman, but in no sense could it be regarded as a binding composition of the claims of the child.
13. It is to be noted, however, that neither of the lower Courts actually dismissed the application on the ground that there had been a final composition. The first Court dismissed it on the ground that it was impossible with any certainty to attribute the paternity to Gardiner. The learned Sessions Judge upheld the dismissal but on the actual ground that Section 488 does not provide for ordering payment of educational expenses.
14. With any claim of the woman, then, in her own right we are not concerned. She has no claim. I deal with the claim as if it had been made by her as guardian of the boy and for the boy. For the child, if he is in fact an illegitimate child, disowned by his father everybody must feel sympathy but whatever it may be possible to do for him in other ways, that sympathy must not be allowed to have the smallest influence in determining the weight to be attached to the evidence produced by the two man who claimed to be his mother as against the alleged father. And similarly an appreciation of the unpleasantness of the position of the alleged father in such a case as this must be allowed no weight as against the child.
15. In this case the opposite party happens to be an Inspector or retired Inspector of Police, but it is right to say at the outset that that facts as had, so far as the record indicates, no bearing on the facts of this case either before or after it came into Court. There is nothing before me to show that Gardiner has in any way abused his position as a police-officer.
16. I have gone into the facts with very great care. The child was unrepresented here by any Counsel and the burden thrown on me was very much heavier in consequence.
17. I have examined more than once every word of the record and if the issue of paternity had to be decided, I should have been compelled to order the matter to be re-heard after taking further evidence on the ground that evidence was produced in the Sessions Court which was not fully sifted and that certain other points needed further inquiry, before the issue of paternity could be decided, particularly in reference to the evidence of 1913 and 1918. I will proceed to state my reason for not adopting that course. As I have said, the fact that the application is made in the name of the woman is a matter of form.
18. The second point, viz., whether such an application as the present can be made for the payment of educational expenses requires deeper consideration. Section 488 of the Code of Criminal Procedure says:
If any person neglects to maintain his legitimate or illegitimate child unable to maintain itself, the Magistrate may, upon proof of such neglect, order such person to make a monthly allowance for the maintenance of such child.
19. It was on the ground that 'maintenance' does not include educational expenses that the learned Sessions Judge dismissed the case. He quoted no authority and gave no reasons in support of his opinion.
20. The object of proceedings for maintenance is to prevent vagrancy compare Sheikh Hakrudin, In the Petition of (1885) 9 Bom. 40 and that object is attained by the provision of lodging, food and clothing. A husband is bound to 'maintain' his wife but he it not bound to do more than supply her with lodging, food and clothing, ho is not hound to maintain her 'as his wife.' See Gulabdas Bhaidas, In re (1892) 16 Bom. 269.
21. The specific question of schooling fees was very fully considered in the case of Nga Hla v. Mi Hla Kga (1909) 4 I.C. 758, a case of the Upper Burma Report, decided on the 5th of January, 1909. In that case an application was made for an increase in the amount of the maintenance that had already been allotted on, amongst other grounds 'that costs of schooling fees and clothing will be increasing', as the child grew older. Mr. Shaw, J.C., who had made research among English and Indian authorities also came to the definite conclusion that maintenance 'is not intended to go further than to insure to the wife or 6hild-ren, food, clothing and lodging.'
22. I need not detail at greater length his reasons, which are set forth fully in the report for holding that maintenance does not include education. From those reasons I see no reason to differ and to that extent uphold the order of the Sessions Judge in this case.
23. A question that might arise is as to whether I should in any way facilitate, if I can do so, the amendment of the. application so that it might take the form of an application for maintenance proper. I should at any rate have grave doubts as to whether I had any power to allow such a material alteration, but of one thing I am quite certain and that is that I ought only to allow it if I was satisfied that the application as framed was framed in error, that what the woman really wanted on behalf of the child was maintenance.
24. But there are facts in this case which make it perfectly clear beyond the shadow of a doubt that the application was framed as it was deliberately after advice being taken and in no way at all owing to ignorance.
25. It is only necessary to refer to the fact that on October 19th, 1919, Mt. Kumli on behalf of herself and the child purchased a house in Almora for the sum of Rs. 150. At first she told the Court that she had expended the Rs. 300 given her by Gardiner in settlement of her domestic expenses and said nothing about this purchase. Later when cross-examined further she said that she had purchased this house out of the sum of Rs. 300. When asked to produce the sale-deed she said she had none. Pressed again on the point, she admitted that there was a sale-deed, but said that it was with her brother. Gardiner applied for and obtained a copy of the sale-deed. It showed that the purchase was made in her name and that of the boy 'Harry, son of Jogia.'
26. She says now in explanation of that that she never saw the sale-deed or had anything to do with it and that Gardiner got the name of Jogia entered in the sale-deed. She had, however, further to admit that one Jogia Mistri was endeavouring to get her to become his mistress.
27. I need hot enter now into the question of whether the settlement which was made at that time was a settlement intended to include the claims of the child or not. Whether Gardiner at that time was admitting, at any rate to the woman, the paternity of the child and the settlement was made on that basis, or whether he was denying it, or whether she was in fact then making no claim, one thing is certain and that is that she considered at that time that all claims of whatever sort or on whatever basis were being settled at that time, and so did Gardiner. This is clear for two reasons.
28. No man would have settled the woman's claims and, if claims, true or false, were being made as regards the child, would have left those open. Similarly, if those claims as to the child were being made, truly or falsely, and if they were not settled, but, as the woman says, Gardiner promised to be responsible for the child, it is incredible that the woman should have waited for four and a half years to make any claim for the child. Therefore, it is certain that whatever claims may have been made in 1918 and whether they were admitted or not the woman thought that all claims to maintenance, even on behalf of the child, had been settled. That the child's claims, if he was Gardiner's child, could not be legally so concluded is immaterial. That is what she thought and what her advisers thought and that is why her application was deliberately framed by her and her advisers to ask for schooling expenses only and for those to be paid not to her but to the 'Rector of the School.'
29. In these circumstances, I should feel wholly unjustified, even if I had the power, in suggesting or permitting any amendment. The result is that so far as this application asks for Rs. 15 for schooling fees to be paid to the 'Rector of the School', it must be dismissed.
30. The remaining question for consideration is the question of the costs allotted to Gardiner. I do not wish to say anything that may seem in any way to suggest any opinion of mine on the main question which was at issue and which as I have already said I am of opinion could not be satisfactorily determined without further enquiry. But in deciding the question of costs I have to consider the responsibility of each of the parties in connection with these proceedings and also the question whether the parties have put their cases frankly before the Court.
31. For the reasons I have already given, it is undesirable to enter into particulars of some of the matters on which evidence was given. But as regards Mr. Gardiner's want of frankness I may instance the incident of the photographs. When he was shown two photographs, he denied having taken them, with the result that a commission had to be executed to the Magistrate at Saharanpur to ascertain whether or not the photographs had been taken in the compound of the bungalow at that time occupied by Gardiner in Saharanpur. It was proved that the building appearing in the photograph was an out-house in that compound.
32. On the other hand I am satisfied that there was at least one most discreditable incident in the case of the applicant. The Sessions Judge, before whom, the photographs were first produced, asked the child whether he knew anything about them. The child is now 10 1/2 years of age. He was born, if we are to believe the woman, on November 15th, 1913. The woman said, in November 1923 that the photographs were taken 8 years previously; in other words in the cold weather of 1915.
33. I have no doubt that the learned Sessions Judge would not have asked the child any question about the photographs had he realised, as it is easy for me to do with the whole record before me, that the child was at that time two years of age. The child in reply said 'Kamli is my mother. I knew the Sahab (Mr. Gardiner). He is my father. I remember this picture (Ex. X). My father here took it. I do not remember the name of the dog. This (Ex. Y) is a photo of me, Dorothy (one of the children of Mr. Gardiner) and my mother. I cannot make out the fourth person. My father here took the photograph. What I have round my neck is the Miss Sahib's Chaddar, not my mother's. The others were wearing boy's clothes, my mother too.'
34. The photograph (Ex. X) referred to was one of a group in which this woman, Mt. Kumli, Gardiner's two little girls and his little boy Eric had been dressed up for fun. The boy in the photograph (Ex. X) was, as this woman admits, not the child before the Court but Gardiner's boy Eric. Nothing is more plain than that an endeavour had been made to coach this poor child to pretend that he knew all about and remembered the photographs. It was impossible that he should do so, as he could only have been two years old, on the woman's own saying. But this fact was overlooked with the result that the poor child made a hopeless mess of his statement. Comment on this incident is superfluous. Anything more disgraceful is difficult to imagine.
35. Taking into consideration such facts as these on both sides of the case alter the order for costs from one for the payment of Rs. 300 to the payment of Rs. 150, the said 150 to include the doctor's fee which, had to be paid owing to another false statement made by this woman as to Gardiner having a birth-mark similar to that of the child. 'With the modification of the order as to costs dismiss the application.