K. Sadasivan, J.
1. This revision is against an order passed by the Sub Divisional Magistrate Alwaye under Section 488 of the Code of Criminal Procedure. Dr. Chathukutty the revision Petitioner's is an Ezhava aged 72. After retirement from the Cochin State Service he started a private clinic at Cranganore. Respondent No. 1, Janaki Amma is a Nair whom the revision petitioner came into contact within his clinic, where she used to go for treatment. The revision petitioner's wife was at the time, say by about 1960, had lost her health and was physically incapable of functioning as wife. This situation led the revision petitioner to form an intimacy with Janaki Amma and the intimacy resulted finally in the birth of the 2nd respondent. Sunil Kumar in the revision petitioner's clinic on 17-11-1963, Even after the birth of the child the intimacy continued between the petitioner and the 1st respondent : but by 1967 after death of the revision petitioner's wife his attitude changed he began to bestow his affections on another woman whom he actually married in the course of the year. That resulted in the desertion of the respondents and all demands made by the Ist respondent for maintenance were spurned away by the revision petitioner. The Ist respondent finally had to offer satyagraha in front of the petitioner's clinic. The police were summoned and cases were registered against her. In the mean time negotiations were going on for a settlement and they resulted finally in the revision petitioner paying Rs. 2,000/- to the Ist respondent in settlement of her claim; but that did not solve the problem. His promise to maintain the child was not kept and so the respondent had to move the Sub Divisional Magistrate on 10-9-69 by the present petition for maintenance. The claim was resisted by the revision petitioner denying the paternity of the child. He stated in his counter that Janaki Amma's husband one Gangadharan Kartha is still alive and that the 2nd respondent is his child. She somehow fell into the hands of the revision petitioner's enemies and at their persuation she offered satyagraha in front of his clinic and to patch up the situation Rs. 2,000/- was paid by his brother, On receipt of that amount the Ist respondent had withdrawn all her claims and the subsequent petition for maintenance is a ruse to extract further amounts from him. The learned Magistrate, on a careful consideration of the evidence has come to the conclusion that the 2nd respondent is the child of the revision petitioner and accordingly he has ordered a monthly maintenance of Rs. 100/- for the child.
2. On a reappraisal of the evidence I see no reason to interfere. It has come in the evidence that the revision petitioner was keeping Janaki Amma as his mistress for a considerably long time and she was exclusively under his control. A house belonging to PW. 4 was taken by the revision petitioner on a monthly rent of Rs. 20/- in the year 1960 for the residence of Janaki Amma and he used to freely visit her in the house. In the year 1962 that house with the compound was purchased by him for the use and benefit of Janaki Amma PW. 5. Ammukutty Amma is the mother of the Ist respondent. She has deposed that the 1st respondent's husband was one Gangadharan Kartha and he is not heard of for about 20 years now. She would further swear that the revision petitioner and the Ist respondent were living together in the rented house as husband and wife, where she was also put up. Pws. 2 and 3 are the doctor and nurse respectively of the clinic, who swear that Janaki Amma used occasionally to visit the clinic. The child was born in the clinic and that is not disputed. The purchase of the property for the benefit of the Ist respondent has also been well proved in the case. The revision petitioner tried to wriggle out from the situation saving that the amount was not paid by him; but by his brother only. Why should the brother purchase such a property in the name of the woman unless it is at the instance of the revision petitioner just to save his skin. (PW. 1 is an advocate who had some part to play in the transaction). He has stated that the revision petitioner was at the bottom of the transaction and the price was also fixed with his consent. Later, when the revision petitioner thought that the respondent's stay at Cranganore was inconvenient to him. they were shifted to Alwaye where also arrangements for their stay were made by him and he used to frequent them also; but ultimately by his second alliance consequent on his wife's death the respondents were neglected and it was then that the Ist respondent offered satyagraha. It is difficult in the face of these circumstances to give any credit to the case of the revision petitioner that he had absolutely no sort of connection with the woman and that the child is the child of her husband. PW. 5. the mother has stated in clear terms that Gangadharan Kartha deserted Janaki Amma some 20 years ago and thereafter he was not heard of. Learned Counsel basing on the presumption of Section 112 of the Evidence Act argued that since the Ist respondent's marriage with Gangadharar Kartha is still subsisting it must be presumed that Gangadharan Kartha is the father of the child. But it has to be remembered that the presumption is rebut- table. It is open in a particular case to show that despite the subsistence of valid marriage the husband had no access to the woman at the concerned period and the child was born to the paramour. Justice Panchapakesa Ayyar of the Madras High Court observed in Sreenivasan v. Kirubal Ammal : AIR1957Mad160 that:
It is not quite impossible for children born to a married woman to be legally held to be the progeny of a paramour. The presumption under Section 112, Evidence Act, though no doubt a strong one. is not conclusive and can be rebutted, by proving that at the time when the children or any of them could have been conceived the husband could not have had access to his wife either by reason of being imprisoned in some distant place or by reason of having never visited the house owing to his disgust at his wife's immorality and having therefore permanently severed all sexual relations with her. or for such other reasons. It is not necessary in every case that the marriage should be dissolved before a paramour can be held to be the father of the children. If the paramour is keeping his wife as his concubine, and the husband is driven out of the house and rigidly kept away from approaching the wife, so that he may not interfere with the immoral activities of the paramour, the paramour may well be held to be the father of the children born thereafter though the marriage is not dissolved. To the same effect is a later ruling of the same High Court by Ganapatia Pillai, J., in Kalla Maistry. v. Kanniammal : AIR1963Mad210 . The learned Judge would observed:-The rule that continuance of a valid marriage will prevent an inference being drawn to the effect that the children born of the woman during the continuance of the valid marriage were born to another man as a result of adulterous intercourse is only a rule of evidence and not a conclusive presumption. It is open in a particular case to show that despite the subsistence of a valid marriage, the husband had no access to the woman at the concerned period and the children were born to the paramour.
It is, therefore, not impossible for a child to be born to the woman by her paramour when her marriage is subsisting. Pw. 5. the mother as stated by me earlier has deposed that Gangadharan Kartha is not heard of for 20 years and there is no evidence to the contra. There is, of course the statement of CPW. 4, Thupran that Gangadharan Kartha is alive and is at present employed in a mill at Parur. This witness has been disbelieved by the learned Magistrate and I think rightly. If. in fact. Gangadharan Kartha is alive and employed at Parur there was absolutely no difficulty to get at him and clear the mistery surrounding him. Thupran's statement, in the circumstances, can only be a deliberate attempt to support the petitioner. When a person is not heard of for 7 years by those who would naturally have heard of him if he had been alive, the presumption is that that person is dead and it is for those who affirm that he is alive to prove it, and it is that evidence that was furnished by the revision petitioner through his witness CPW. 4 and disbelieved by the court. The presumption, in the circumstances must be held to hold good.
3. From the above statement of the law. it is clear that there is no legal bar to the child claiming maintenance against its mother's paramour even though the mother's marriage has not been dissolved. The presumption under Section 112 of the Evidence Act has sufficiently been rebutted by the evidence discussed above which goes to show that near about the time when the child was conceived Gangadharan Kartha. the husband of the woman, was nowhere there and he had no sort of access to her. The evidence admitted by the revision petitioner to show that Gangadharan Kartha was available at the time is of no avail as we have already seen. His attempt was simply to create a cloud of suspicion and confuse the mind of the court; but in that he has signally failed.
4. The result, therefore, is that the petition has rightly been allowed by the learned Magistrate and this revision petition is without merits. I see no reason to interfere with the quantum also as it is well brought out in the case that the revision petitioner is one in highly affluent circumstances. The revision petition is. therefore, dismissed.