K. Sukumaran, J.
1. The marriage of Abdulla with Pathumma took place in the year 1968. Some time thereafter the husband left for Dubai where he had obtained a job. Children were born to the couple. There is ho controversy between the parties about the legitimacy of the first two sons After one of those visits to the home, the husband left India in the year 1977. His next visit was only on 24-6-1979. The husband and wife stayed for about three months then. A child was born on 19-1-1980. The husband doubted about its paternity. He rushed back home. The wife was searchingly questioned by him. According to the husband she had owned that the child was not born to him ; and she had made such a statement on oath at the Jumaath Mosque at Cherukunnu. An estrangement thus arising between the parties led to the litigation. She moved the criminal Court for maintenance. The three children and herself figure as the petitioners. The husband is the respondent.
2. Maintenance was awarded to the petitioner and the first two children by the Magistrate. Maintenance for the third child was declined. According to the Court, the child was not born to the husband.
3. The order to the extent it negatived the claim of the wife in respect of the maintenance of the third child, was subjected to a revision before the Sessions Court That revision petition was, however, belated A petition to condone the delay was considered by that Court. According to it, there was no satisfactory explanation for the delay ; the petition to condone the delay was accordingly dismissed The revisional Court, however, did not dispose of the revision petition only on the ground that it was belatedly filed It considered the merits of the claim, It adverted to the finding of the trial Court that the husband had no access to the wife at the time the third child could have been begotten, as he was abroad ; and the conclusion was :
Judged by the admissions and dates, it is clear that he was not in India and as such he could not have had access to the lady at the time the 3rd petitioner was conceived.
4. This criminal miscellaneous case is directed against the orders of the Courts below.
5. Counsel for the petitioners submitted that a child could be born 209 days after conception. The child in this case was born after 210 days. This is not a medical impossibility. In that view of the matter, the findings of the Courts below, which have the effect of putting an innocent infant in utter disrepute and shame, should be set aside -- thus proceeded the arguments.
6. It is unnecessary for the purpose of the present case to recapitulate the principles to be borne in mind while evaluating the presumption of legitimacy of a child Bhat J. has neatly summarised the principles gatherable from earlier decisions of this Court in his judgment in Kesavan v. Krishnamma 1981 Ker LT (S.N.)75, Case No. 137 : 1981 Cri LJ 156. The rigour of proof in establishing non-access had been rightly emphasised in that decision. The learned Judge, if I may say so with unfeigned respect, correctly stated the legal position by observing :
As to when a child could have been conceived is a matter which may be decided on the facts and circumstances of each case and in the light of the common course of events and medical possibilities.
Could it be said that the common course of events and medical possibility have been totally ignored by the Courts below in reaching the conclusion which they did'. I am of the view that the answer should be in the negative.
7. Bhat, J. had to consider the case where the child was born after about 216 days of the access which the spouses had. The present is not a case where the period is that long. And along the border line, the difference of even a small number of days will be very crucial to the decision Advanced medical studies now give very precise information on the development and physiology of the foetus from the time of the earliest human ova to that of the child at the full term. That covers the field from the time when 'so small a body that its component parts can be distinguished only with the aid of the microscope' develops into the child ready for delivery. There appear to have been erroneous notions earlier about an. earlier born child having chances of enhanced longevity of life. That is unscientific and has been established to be so. William's Obstetrics' refers to that notion in the following words :
It is generally believed among the laity that a child born at the end of the seventh month has a better chance of living than when it comes into the world four weeks later. This idea is a remnant of the old Hippocratic doctrine and is altogether erroneous, as the more developed the child the greater are its chances for life.
(See Williams : Obstetrics, 12th Edition, Page 187).
I have referred to the 12th Edition of the Book for the reason that the above passage is seen omitted in the 14th Edition The conditions of the foetus during the various lunar months after pregnancy are given in both the editions of the Books, more or less in similar terms. As regards the seventh lunar month it is stated at page 202 of the 14th Edition :
An infant born at this period moves his limbs quite energetically and cries weakly. Usually the infant succumbs, but occasionally, with expert care he may survive.(emphasis supplied)
In respect of the infants born during the eighth lunar month it is stated that they ' may survive with proper care, although their chances are not excellent.
8. While considering the question of maintenance of a child, the Court is not merely concerned with the theoretical medical possibility of a child being born alive at a given point of time. The query is whether a child so born and having regard to the care given to it, and the circumstances in which it had been nursed and nurtured could be treated as the child of the person with whom the mother had access at the relevant time. A child born in a seventh lunar month in a well- equipped hospital with advanced techniques of preserving such a delicate infant, may survive the critical period and grow up as a healthy child The environment in which the child was born, and spent the crucial early period and the availability of expert medical and other attention during that period, will all have to be taken into consideration while deciding this difficult issue.
9. No doubt, in the decision in Sukumaran v. Prabhavathi I L R (1975) 1 Kerala 222, a Division Bench of this Court found that a child born 209 days after the spouses had access to each other, could be treated as the legitimate child born to them. That decision referred to the opinion of an eminent gynaecologist Dr. Santha Madhavan who gave evidence before the Court as an expert witness on the question. She could with competence, speak about the possibility of survival of a child born during early periods, in conditions obtaining in Kerala She stated 'that she is in agreement with the earlier quoted observations appearing in Taylors book and in her experience there is no case of survival of a child born before 210 days.
10. Notwithstanding that opinion, the Division Bench, having regard to the evidence available before the learned Judges, came to the conclusion as noted earlier. The decision, as I read it, however, does not lay down a general and inflexible proposition that all children born on the 209th day of access should necessarily be treated as the children of the contending spouses. There may be other pieces of evidence, apart from the general medical possibility, which may tilt the decision. Blood test, for example, as suggested by Viswanatha Iyer, J.Vasu v. Santha, 1975 Ker LT 533, may be one such useful factor in the decision process. Other evidence regarding the size of the child, its behaviour at the time of birth and the features of growth noted soon after birth, may also give useful and valuable guidance in the determination of this issue.
11. The admission freely made by the wife in the present case, perhaps out of the rural innocence rightly attributed to her by her counsel, gives a tilt in the balancing scales with adverse impact on her contentions. The trial Court has referred to such admissions. One such admission is that the child was born after full maturity. If the child was one born nearly four weeks before due date, it is unlikely to be viewed by the mother as a fully mature child. The difference will be so significant that it will not miss the mothers eyes. The child did not receive any special medical care or attention She gave birth to her child in a rural village, where even modern medical treatment was out of bounds for her. The expert medical opinion, as noted earlier, is that in such circumstances, the child will not survive without expert medical care. Concededly, there was no such medical attention. These circumstances rule out the possibility of the child being born out of an access which the husband had with the wife after his long stay abroad. In that situation this Court would decline to disturb the conclusion reached by the Courts below in the exercise of its revisional jurisdiction.
12. It is true that the Courts should spare no pains to obviate a situation where a child, is likely to suffer in respect of its reputation. It will however, be cruel and unjust to an innocent person toiling hard in the desert regions, to be undeservedly attributed the paternity of a child, for whose birth he had no part to play nor any responsibility to shoulder. Difficult indeed is the life of many a wife who eagerly awaits the return of the dear ones after long periods of separation from home. The psychological and sociological problems which sometimes lead to domestic disturbances, have been, in recent times the subject- matter of studies by researchers in the respective disciplines. Women, whose intrinsic virtue and normal fidelity could be beyond question, may, occasionally though extremely rarely, have a fatal fall along the steep and slippery slopes of temptation While one may sympathise with the victim, it will, at the same time, be unjust to make an innocent person pay for such a lapse of the other spouse. And in this State, large number of men who work abroad, would answer the description of 'workaholic' (the term is described as denoting 'a person who works extremely hard and gives very little time to wife and family' -- see Preston v. Preston (1982) 1 All ER 41 at p. 45). The protection of law shall not be denied to them.
13. The husband in this case, is seen to be admirably considerate to the wife and to the children even after the unfortunate events. He rushed back home with the painful impact of a lurking suspicion about the legitimacy of the third child. He was satisfied if the wife could swear to the legitimacy of the suspect child in a mosque. He could not derive that satisfaction which he longed for. Even thereafter he did not make any cruel allegation against the wife. Notwithstanding the fact that, by orders of Court the maintenance is denied to the third child, it is to be hoped that he may adopt a helpful attitude to the petitioners ; and with that hope, the criminal miscellaneous case is dismissed.