Panchapakesa Ayyar, J.
1. This is a petition by one K. Srinivasan for setting aside the order of the Sub Divisional Magistrate, Tirupathur, in M. C. No. 72 of 1954, holding him to be the father of a male child and a female child' born to P. W. 1, married woman, whose husband, P.,W. 3, Is still alive, and the marriage between whom has not been dissolved, and erdering him to pay maintenance at Rs. 6 per month for each of those children from the date of the petition and also to pay P, W. 1 costs or Rs. 15.
2. The facts .are rattier extraordinary P. W; 1, Kirubai .Animal, is an Indian Christian lady aged 32 and a school mistress by profession. Her husband, Asseryatham, P. W. 3, aged 65, is also an Indian Christian and a school master by profession. According to P. W. 1, she married P. W. 3, Asser-vatham in or about 1936, and delivered two male children and a female child to him.
She stated that the petitioner, Srintvasan, who was then a constable attached to Tirupattur police station, used to visit her husband and that very soon he contracted illicit intimacy with her. He had systematic sexual inter-course with her for years without the knowledge of P. W. 3. Then some people told P. W. 3 about the situation. P. W. 3 suddenly returned to his house one day and found the petitioner and P. W. 1 together.
' When he protested, the petitioner, who was then a police constable (he is said to have been since dismissed) gave him a sound beating, and drove him out of his own house. P. W, 3 wanted, to take at least the three children he had got by P. W. 3. P. W. 1 refused to give him the three children. So, he-left the house early in 1949, and swore that he never had any more sexual intercourse with P. W. 1, though he admitted that after a pancbayat in 1950 he went and lived in the same house with P. W. 1 for a month or so.
The petitioner was said to be continuously living with P. W. 1 after her husband was driven, out in 1949 and to have had systematice and exclusive intercourse with her. p. w. 1 stated that he was her sole paramour, and she was his sole concubine, from 1949 till 1954, when this petition was filed. According to her, the petitioner ceased to be a constable and took to some beedi business and was earning some Rs. 200 per month, but he was not willing to maintain her and her two children one of whom was a, male child, and another was a female child; the third child she bore to him, a male child, having died. She said that she had to bring this petition as the Panchayat convened by her did not effect any satisfactory settlement.
3. P. W. 1 examined her husband, P. W. 3, on her behalf to show that though her marriage with him continued undissolved, he had no sexual intercourse with her after he was driven out of his house by the petitioner in 1949, and that three children were born to P. W. 1 thereafter through the petitioner alone. P. W. 3 stated that the two children to Whom maintenance was awarded, that is, the last two children born to P. W. 1, were not born to him. He said that it was because his three children by P. W. 1 (the first three ones) were living with P. W. I and the petitioner and were in distress that he had come to the court to depose on behalf of P. W. I.
The petitioner stated that he had nothing to do with P. W. 1, that it was false to say that he was' keeping P. w. l exclusively, as his concubine from 1949 to 1954, and that three children, two of whom were surviving, were born to him. The lower court disbelieved the petitioner's story, and passed orders as stated above.
4. I have perused the entire records, and heard the learned counsel for the Petitioner and the respondent, P. W. 1, and the learned Public Prosecutor: Mr. Narayanaswami Mudaliar, for the petitioner, urged that the lower court went wrong in ignoring the mandatory provisions of Section 112 of the Indian Evidence Act and holding that these 'two children were born to the petitioner and decreeing maintenance against him for these two children of a married woman when her marriage with P. W. 3 was still intact and undissolved, and when it was obvious that both the husband and the wife, owing to their impecuniosity were conspiring together to foist their children on othersand trying to tap the resources of the petitionerwho might have had something to do with P. W. 1,by way of casual sexual intercourse, but certaintyhad not kept her as his exclusive concubine. Heurged that P. W. 3 had not proved non-access toP. W. 1 during the period when these two childrencould' have been together.
He relied on several rulings which have laid down that even if a married woman is having regular sexual intercourse with several other persons besides her husband the responsibility for the paternity of the children born to her during coverture would still be the husband's, under Section 112 of the Indian Evidence Act, unless he was able to prove conclusively non-access to the woman during the period when the children in question should have been conceived.
He urged with great vehemence, that there was absolutely nothing on record to show conclusively that the 'petitioner was the father of these two children and that the husband of P. W. 1, namely, P. W. 3, could not have had access to P. W. 1 at any time when these two children could have been conceived. He also dwelt on some rather curious facts in this case, namely, that Ex. D. I snowed that P. W. 1 delivered a female child on 21-9-1949, and yet, P. W 1 claimed that she had delivered a female child in September 1950, and a male child in between.
He urged that it would be Impossible for any woman to deliver two children (at two separate deliveries) within the course of a year. He said that Exs. D. 2 to D. 4 showed that P. W. 3 was on cordial terms with P. W. 1 till at least 1951 and that he had treated the daughter shown in Ex. D. 1 as his and claimed rations for it. He also dwelt on the symmetry of the story of P. W. 1, showing its artificiality, namely, that she delivered two male children and one female child to her husband. P. W. 3, and then two male children and one female child to her paramour, the petitioner. He urged that P. W. 1 was falsely claiming maintenance for the second set of children from the petitioner, falsely alleging him to be her paramour, simply, because her husband was too poor to maintain all her brood of six children. He also pointed out that several documents marked by the lower court in this case, like Exs. D. 2 to D. 4 had not been put to P. W. 1 or P. W. 3 though they would be of very great importance for determining the truth of the matter in this case. Ex. D. 2 is an application for increase in rations.
It purports to have been made by P. W. 3, as his daughter, evidently the one born in 1949 and shown in Ex. D. 1 had become. 8 months old. Ex. P. 3 is an application by P. W. 3 for reduction in rations as his mother-in-law had left the household on 14-4-1950, Ex. D. 4 is an application by P. W. 1 for reduction in rations as her mother went along with her husband for assisting him, as her husband was transferred to Kaudili, ten miles away.
That reduction was asked for from 4-7-1951. Mr. Narayanaswami Mudllar urged that if Exs. D. 2 to D. 4 were true, and proved to have been made by P. Ws 1 and 3. they would knock the bottom out of the case of P. W 1 that P. W. 3 had left P. W. I in 1949 and had nothing to do with her afterwards, and would prove that P. Ws. 1 and 3 were on the best of terms till at least July 1951. The learned counsel also rightly commented on the failure of P W. 1 to file birth extracts of the children for whom maintenance has been awarded.
5. It seems to me that in such an extraordinary case as this, where a married woman claims to have delivered one set of three children to her husband, and another set of three children to her alleged paramour, and has called her husband as witness to the delivery of the second set of three children to her alleged paramour in support of her claim for maintenance, the court should examine every relevant factor before coming to the conclusion that the heavy burden of Paternity thrown on the husband during the continuance or the marriage, under Section 112 of the Indian Evidence Act, has been discharged, and the alleged paramour is the real father of the three children conceived even during coverture, by reason of the fact that the husband could not have had access to the woman at any time during which the child, ren could have been conceived.
The learned Public Prosecutor as well as Mr. T. M. Kasturi, agreed, and did not have any valid objection to my sending the case back to the lower court for fresh disposal after a thorough scrutiny and after considering all the relevant facts, and after putting Exs. D. 1 to D. 4 to P. Ws. 1 and 3 and getting therein explanation, and after getting the birth extracts of the three children alleged to have been born to the alleged, paramour the Petitioner,
6. I cannot, however, agree with Mr. Nara-yanaswami Mudliar that it is quite impossible for children born to a married woman to be legally held to be the progeny of a paramour. The rulings cited by him do not go to that extent, and cannot go to that extent, in the face of provisions of Section 112 of the Indian Evidence Act itself. Though it is a strong presumption, it is not a conclusive presumption.
It 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. Certain persons belonging to certain religions, like orthodox Hinduism and Roman Catholicism, do not like divorce, however great the provocation may be. In such case, a deliberately immoral wife is simply abandoned, and the husband ceases to have sexual intercourse with her, and she may have children by paramours who will have to maintain them,
Of course, Mr. Narayanaswami is right in. saying that if the husband visits his wife in her house, even after outwardly abandoning her, it will be difficult for outsiders to know whether he has sexual intercourse with her on those occasions Or not. In such cases of proved visits, the Presumption, under Muhammadan law, of 'a valid interval for sexual intercourse' and opportunity leading to a presumption of sexual intercourse may apply.
But 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.
7. In the end, therefore, the order of the lower court is set aside, and the case is sent back to the lower court for being taken back on its file and disposed of afresh after allowing all the Parties to adduce any further relevant evidence, oral or documentary, and after putting Exs. D. 1 to D. 4 to P. Ws. 1 and 3, and getting their explanations therefor, and after making P. W. 1 file the birth extracts of the three children alleged to have been born to her through her alleged parainour, the petitioner.
It is quite a different thing as to what valueshould be attached by the lower court to what thebirth register extracts will contain. The name ofthe putative father cannot be entered in a birthregister unless he admits the paternity of the childand signs in the register. The parties will, ofcourse, be free to comment on the exact entrieswhen the birth extracts are filed. If the birth extracts are not available, the parties will be free toadduce evidence allunde regarding the briths ofthe children and the father of each child.