1. This is a criminal, revision petition against an order passed by the Sub-diyisional Magistrate of Palghat Division under Section 488, Criminal Procedure Code, in so far as it awards maintenance for the younger (jf the petitioner's two children. The parties are Nairs and lived together in Sambandam up to within a certain period of the presentation of the petition. The counter-petitioner's defence was that he was not the father of the younger child. Witnesses were examined on both sides, but the Sub-divisional Magistrate found himself unable to arrive at any definite conclusion from their evidence as to the legitimacy of the child. He accordingly took the course of going to the village and examining without previous notice four of its residents as court-witnesses. After doing this he offered to examine any one else in the village whom the counter-petitioner might want; but he did not want to examine any one whom he had not already called. The evidence of these Court-witnesses left absolutely no room for doubt, in the opinion of the Magistrate, as to the legitimacy of the child.
2. The question is whether the Sub-divisional Magistrate's action in examining these Court-witnesses after the parties had adduced their evidence can be supported. Section 540, Criminal Procedure Code, confers very wide powers upon a Court, but as has been more than once pointed out see Sital Singh v. Dalgahjan Singh (1913) 12 ALJ 15 and Natabar Ghose v. Adyanath Biswas (1922) 27 CWN 675 the wider the powers the greater the exercise of discretion required of a Magistrate. This principle, I think, is the only assistance which can usefully be derived from the two decisions cited, because in each of these cases the witnesses examined were called by the Court at the instance of a party. It is clearly objectionable that a party should be able in this manner subsequently to obtain the evidence of persons who might have been included in its list of witnesses. In the matter of Ananda Chunder Singh v. Basu Mudh ILR (1896) C 167, the Court in a summons case called a witness after the witnesses for each party had been examined and then convicted the accused of wrongful confinement. The learned Judges seem to have been in some doubt as to the regularity of this action though they indeed remark that the Magistrate was strictly within his rights under Section 540. Being unable to find that the accused was in any way prejudiced they declined to interfere. The circumstances of that case differ I think considerably from those of the present one inasmuch as the Court did not base its conclusion exclusively or mainly upon the evidence which it called. Here we have no trustworthy materials for a decision arising out of the parties' evidence and the finding of the Court is based exclusively on evidence subsequently obtained. I. cannot but think that the counter-petitioner who, before this was done, had already produced all the evidence at his command, is likely to have been prejudiced by such a course of action, and that the Court in pursuing it went beyond the reasonable discretion afforded by Section 540, Criminal Procedure Code.
3. Under Section 112 of the Evidence Act there is a presumption in favour of the legitimacy of a child born during the continuance of a valid marriage between its mother and any man, or 280 days after its dissolution, the mother remaining unmarried, and this presumption can only be rebutted if it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. It has been argued here that the form of union known as sambandam is a valid marriage, and if this be so, and if the child was born within the prescribed time, the counter-petitioner can only rebut the presumption by proving non-access. It is unnecessary for the petitioner, once the validity of the marriage is proved, to establish affirmatively that the child is legitimate. I think-that/having regard to this consideration and to the objections raised to the procedure adopted by the Trial Court, the best course will be to set aside the order in so far as it relates to the younger child and to remand the case for retrial in the light of the above observations, and I order accordingly. Opportunity may of course be given to the petitioner, if she cannot rest her case upon the validity of her marriage to the counter-petitioner, to examine any of the witnesses previously examined as court-witnesses.