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Durairaju Vs. Neela and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1976CriLJ1507
AppellantDurairaju
RespondentNeela and anr.
Cases Referred(vide Mahadeva Rao v. Yasode Devi
Excerpt:
- - it is well stated that unless it is established beyond doubt that a woman was the exclusively kept mistress of the man and the relationship was virtually one of monogamy, it cannot be legitimately presumed that the child was born to the woman through that man (vide mahadeva rao v......at all be taken into consideration as both these documents do not satisfactorily prove that the child born to the first respondent was born through the petitioner and that the name of the father of the child is given as doraipandi in both these documents, but the name of the petitioner as found from the petition is dorairaj. therefore, he submits that the name duraipandi cannot be said to be the name of the petitioner.5. it was contended on the side of the respondents that the entries in these two documents viz, the official records, should be taken as a relevant fact and made by a public servant in discharge of his official duties or by any person in performance of a duty especially enjoined by the law of the country and as such the entries by themselves are relevant facts to hold.....
Judgment:
ORDER

Ratnavel Pandian, J.

1. This petition is directed against the order made by the learned Sub-Divisional Magistrate, Kovilpatti, under Section 488 Cri. P. C. in M. C. No. 42 of 1974 on his file directing to pay a sum of Rs. 30 per mensem to the second respondent herein (aged 1 year 3 months) as maintenance from the date of his order and the said amount is to be paid to the first respondent herein, the mother and guardian of the second respondent.

2. According to the first respondent, the revision petitioner married her and the second respondent was born to him out of the lawful wedlock. The first respondent filed the petition claiming maintenance for herself and for the minor child, the second respondent, on the ground that the revision petitioner has refused to maintain them. The first respondent who was the petitioner before the trial court examined two witnesses including herself. P.W. 1 is a clerk in Kovilpatti Municipality in charge of maintenance of birth and death registers. He was examined to file Ex. P. 1, the intimation received by the Municipality from the Government Hospital, Kovilpatti, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, which shows that a male child was born on 4-2-1973 to one Neela and Duraipandi. The trial court after assessing the evidence came to the conclusion that there was no valid marriage between the first respondent and the revision petitioner, but held that the second respondent is the illegitimate child of the revision petitioner through the first respondent. Therefore, the learned Magistrate awarded maintenance as stated supra.

3. The revision petitioner challenges in this petition the finding of the trial court that the second respondent is the illegitimate child of the revision petitioner through the first respondent. As the first respondent is not challenging the finding of the trial court that there was no valid marriage, there is no need to go into that issue. The only issue that stands for consideration is whether the second respondent was borne to the first respondent through the petitioner.

4. Mr. I. Subramaniam, learned Counsel, appearing for the petitioner, contends that the evidence of the solitary witness, viz, PW. 2, cannot be accepted as she herself proved to be a lier in view of the allegations made in Ex. P. 3, a report lodged with the Police wherein she has claimed to be the concubine of the petitioner which is inconsistent with the present case, that she was lawfully married to the petitioner. Secondly, it is submitted by the learned Counsel that the first respondent belongs to Chettiar community whereas the petitioner belongs to Thevar community and the claim of the first respondent that the second respondent was the only issue born to the petitioner is falsified by the entry in Ex. P. 1, which states that the child mentioned in Ex. P. 1. was the second child of the first respondent. He brings to my notice the suggestion made to PW 2 that she had already given birth to a child named Kala. Finally, he contends that Exs. P. 1 and P. 2, cannot at all be taken into consideration as both these documents do not satisfactorily prove that the child born to the first respondent was born through the petitioner and that the name of the father of the child is given as Doraipandi in both these documents, but the name of the petitioner as found from the petition is Dorairaj. Therefore, he submits that the name Duraipandi cannot be said to be the name of the petitioner.

5. It was contended on the side of the respondents that the entries in these two documents viz, the official records, should be taken as a relevant fact and made by a public servant in discharge of his official duties or by any person in performance of a duty especially enjoined by the law of the country and as such the entries by themselves are relevant facts to hold that the second respondent was born to the first respondent through the petitioner.

6. To decide the paternity of the child it is prima facie improper to accept the mere statement of the mother, upon whom lies the burden to establish the paternity of the child. It is true that corroborative evidence is not usually forthcoming and therefore the Magistrate has to rely upon other corroborating circumstances if they are available. But at the same time it is not correct to say that unless the child is admitted by the putative father to be his illegitimate child, the Magistrate has no power to make an order for payment of maintenance. The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. Therefore, it is the duty of the court, before making the order, to find definitely though in a summary manner, the paternity of the child. In the instant case, the medical officer who made the entries in Ex. P. 1 has not been examined. PW 1 is the witness who had made the entries in the original of Ex. P. 2, on the basis of the entries made in Ex. P. 1. The author of the information is not mentioned in Ex. P. 1. It may also be noted here that PW 2 herself has not stated that she mentioned to the doctor that the child was born to her through the petitioner. In the absence of such evidence, the question is whether this document could by itself prove the relevant entries made thereon. Section 35 of the Evidence Act states as follows -

An entry in any public or other official book, register or record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.

To prove the document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law. But in this case there is absolutely no evidence on the side of the respondents as to whose signature is found in Ex. P. 1 as the informant. PW 1 does not speak about the signature found on Ex. P. 1. Of course it is not possible for him. Either the author of Ex. P. 1 or anybody from the hospital has not been examined to prove the intimation under Ex. P. 1. In the absence of such evidence, it cannot be held that the entries were made by a public servant in discharge of his official duty so as to prove the evidence of paternity. Therefore, no presumption of paternity can arise out of these two documents. It is well stated that unless it is established beyond doubt that a woman was the exclusively kept mistress of the man and the relationship was virtually one of monogamy, it cannot be legitimately presumed that the child was born to the woman through that man (vide Mahadeva Rao v. Yasode Devi 1961 MWN 164 : 1962 (1) Cri LJ 437. For the reasons mentioned above, the records, Exs. P. 1 and P. 2 in this case, are not adequate to sustain any such finding and the evidence of PW 2 is also not sufficient to hold that she was kept exclusively as a concubine of the petitioner and during such period only she conceived.

7. The learned Sub Divisional Magistrate appears to have somewhat misdirected himself in thinking that both these documents are properly proved and a presumption would arise against the petitioner which might be strengthened by the oral testimony of the solitary witness namely the mother.

8. The burden of proof is not upon the father of the child in such cases. It is for the mother claiming maintenance to show that the child was born to the alleged father and the circumstances of the exclusive relationship. Consequently, since it cannot be said that the paternity of the second respondent in the instant case has been proved either by documentary or oral evidence or by both, this revision will have to be allowed and the order of maintenance passed by the learned Magistrate has to be vacated. Hence, I set aside the order passed by the learned Magistrate and allow this revision petition.


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