1. Kasthuri B.Sc. B.Ed., the first revision pttitiontr (htrtinafttr re- ferred to as the petitioner) married Ramasamy B.Sc. B.Ed, the respondent, on 14-7-1971, at Rettaiyoorani in accordance with the custom of their caste. A child Suresh was born to them on 3-7-1972. The respondent wanted to marry one Vallinayagi of Ponnagararn, who is also a B.Sc. and B.Ed. The petitioner did not agree, and therefore, he turned the petitioner and her child Suresh out of his house in or about 1973. At the intervention of some mediators, she was again taken in the month of August 1973. The respondent again requested the petitioner to give him her consent for a second marriage which request the revision petitioner again turned down, and again the respondent sent her away to the house of the mother of the petitioner in or about Nov. 1.973. At that time she was pregnant and she was delivered of a female child on 9-2-1974. The petitioner was not taken back by the respondent, and she is leading a hard life and is unable to maintain herself, and, therefore, the petitioner and her two minor children filed an application for maintenance.
2. The application was resisted by the respondent, who inter alia contended that the allegation that he wanted to marry for the second time is not correct, that the petitioner his wife, is living in adultery with one Varadarajan, son of Muthuraman of Kadukaivalasai, that there was a panchayat consisting of Nadar Uravanimurai of the village, on 30-9-1974, which decided to dissolve the marriage, and therefore a divorced wife cannot ask for any maintenance, that the petitioner is still in adultery with Varadarajan and that the second child should have been born to the petitioner out of her adulterous life with Varadarajan.
The learned Sub Divisional Judicial Magistrate found 'that the first revision petitioner is living in adultery with one Varadarajan and therefore the first petitioner and also the third petitioner who is said to have been born through the said Varadarajan are not entitled to claim any maintenance'. In the end, he dismissed the petition. The revision petitioners are aggrieved, and have filed this revision.
3. Before me, the learned Counsel for the revision petitioners contend that the trial Magistrate has overlooked the important presumption under S, 112 of the Indian Evidence Act, and approached the case without clearly understanding the principles of criminal law and that has resulted in gross miscarriage of justice, and, therefore, this Court as a court of revision, should interfere. The further contention of the learned Counsel was that the respondent has not proved that the petitioner is living in adultery. It is necessary to examine these contentions in the light of many decisions on this point.
4. Before we examine these contentions, we should advert to the facts which are not in controversy and which are admitted. The petitioner married the respondent on 14-7-1971, at Rettaiyoorani, The first child was born to them on 3-7-1972. The marriage of the petitioner with the respondent is not disputed and in fact is admitted by the respondent, R. W. 7. The paternity of the first child is also not disputed, The petitioner's case .is that she was turned out of the house of the respondent in or about July 1973, that on the intervention of others, she went to Kadukaivalasai in August 1973 and lived with the respondent, that as the respondent again wanted her consent for the second marriage and as she did not accede to this request, she was sent away in Nov. 1973, and at that time she was having a baby of seven months in her womb. The respondent's case on the other hand is that the allegation that the petitioner was sent away in July to her house and that she came back again in Aug. 1973 is false and that the allegation that she was sent again in Nov. 1973 is also false. In his counter-statement, I do not find when exactly the petitioner went to her father's house. But, in his evidence, R.W. 7 says that she left his house about 4 months prior to the birth of the first child. The first child was born on 3-7-1972 according to the averments in the petition which means that the petitioner had left the house of the respondent roughly in March 1972. I earlier pointed out that this was not stated in the counter-statement of the respondent. The learned Counsel pointed out that the trial court has completely overlooked the presumption under Section 112 of the Evidence Act. It is unfortunate that in the memorandum of grounds of revision, this point was not taken. But, however, I shall proceed to consider it, Section 112 of the Indian Evidence Act runs thus:
The fact that any person was born during the continuance of a valid marriage, between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana : 1SCR424 , the Supreme Court has held that the presumption which Section 112 of the Indian Evidence Act, contemplates is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section. namely, non-access of the parties at a time when according to the ordinary course of nature the husband could have been the father of the child. The second child, according to the petitioner was born on 9-2-1974. R.W. 7, the respondent in his evidence would state that the marriage between him and the petitioner was dissolved by the Panchayat on 30-9-1974. It is, therefore, clear that the second child was born during the continuance of the wedlock between the petitioner and the respondent. A reading of Section 112 of the Evidence Act would very clearly show that, a conclusive presumption of legitimacy would arise unless it is proved that the parties to the marriage had no access to each other at any time when the child could have been begotten. Therefore, the question to be decided is whether on the evidence adduced in this case, the respondent upon whom the burden of proof of non-access admittedly lay, has succeeded in discharging the burden. It is not disputed that the onus of proof of non-access is always on the party who alleges it. I earlier referred to the evidence of R.W. 7 who stated for the first time in the box that the petitioner left him about four months prior to the birth of the first child, which would be roughly about March 1972, and that he did not have any access after that. But, in chief examination he would say that the petitioner came to his village in Nov. 1973, and his mother saw her talking with Varadarajan and brought her to her house, that she questioned her and his father also questioned her and she admitted that she 'went astray'. The father, R.W. 6 also admits that the petitioner came to his village and that would be in the month of Karthigai 1973. It is only the father and son who say that the respondent did not have any access.
5. The petitioner's counsel invited my attention to Exts. p. 1 & p. 2, letters which are admittedly written by the respondent to his wife. Though addressed to his son, the respondent admits that the contents are meant only for his wife. P,W. 1 also states that these letters are addressed to her son. These letters would show that the petitioner was residing at Kadukaivalasai in the house of the respondent. In Ex. P. 2, he says that he would 'definitely go over on Saturday there'. This letter is dated 23-1-1973. In Ex. P. 1, he writes that 'he wants to crawl like a child on her laps in her embrace'. In the margin of the letter he has written in English. I shall reproduce the same in his own words
If you are not willing of my coming there, I never come. So your reply is very important. You also write your willingness. P.R.
A reading of these Tamil letters leaves on me an impression that the respondent was very anxious to be very near his wife, the petitioner, and to have her consortium. In cross-examination, the respondent would state that he has not written any letter to his wife since the time she left him which was roughly four months prior to the birth of the first child. He would also state that his wife also has not written any letter to him, but Exs. P. 1 and P. 2 prove that what the respondent says is not correct, because the respondent had written Exs. P, 1 and P. 2. Those letters are dated 23-1-1973 and 26-2-1973. It should further be noted that the petitioner was, according to her evidence, in the house of the respondent till the respondent finished his course at Madurai. Her evidence is that he came on 9-3-1973, to his house and that it is only at that time he gave out that he is in love with a girl of the college and that he wanted to marry her. The learned Counsel appearing for the respondent contended that Exs. P.I and P. 2 may at best, prove that they are letters expressing his love and affection for his wife, but they may not prove that he had access to his wife, the petitioner, at the crucial period, namely April 1973, when the second child ought to have been conceived. In answer, I must point out that the onus is on the respondent who alleges illegitimacy, to establish conclusively that he had no opportunity of intercourse with his wife at a time, when according to the ordinary course of nature the second child must have been conceived. The second child must have been conceived in April 1973 having regard to the fact that it was born on 9-2-1974. (see Exs. P5 and P7) These letters Exs. P. 1 and P, 2 are filed by the petitioner to show that the respondent was anxious to have her company during Feb. 1973 and the evidence of P.W. 1 is that the respondent came to the house she was residing in on 9-4-1973. Non-access may be proved by means of such legal evidence as is admissible to prove a physical fact. Except the statement of R.W. 7, the respondent, and of his father, R.W. 6, there is no other evidence in this case to prove non-access. The law requires positive proof of a negative fact, that is non-access between the parties. The mere fact that the respondent was studying in Madurai and the wife was in the house of the respondent in the village, is insufficient to establish non-access. These letters Exs. P. 1 and P. 2 give a lie direct to the case of the respondent and his father that the petitioner went to her father's house even four months prior to the birth of the first child, that is even in March 1972.
In Chilukuri Venkateswarlu v. Chilakuri Venkatanarayana : 1SCR424 , their Lordships of the Supreme Court observed (at P. 177 of AIR)
as the presumption of legitimacy is highly favoured by law, it is necessary that proof of non-access must be clear and satisfactory.
Such proof is wanting in this case. As the second child was born and begotten at a time when the marriage between the petitioner and the respondent was subsisting, S, 112 of the Evidence Act is clearly attracted. The learned Magistrate has overlooked this presumption of law in a civilised nation that a person born during the continuance of a valid marriage between his mother and a man is the legitimate child of that man, pater est cuem nuptiae demonstrant (he is the father whom the marriage indicates). It is not only a rule of prudence, but also a rule of natural justice that a child born of a marriage must be deemed to be legitimate. As earlier pointed out, the presumption contemplated under Section 112 is a conclusive presumption and the only thing which can displace it is proof of a particular fact mentioned in it, and that is non-access between the parties to the marriage at a time when the child could have been conceived in the womb of the mother.
8. If we now refer to the evidence adduced, it would be seen that the petitioner was living in the house of the respondent at Kadukaivalasai. He has writ- ten Exs. P. 1 and P. 2 addressed to his son at Kadukaivalasai. Ex. P. 1 is written at the end of Feb. 1973. In his evidence, R.W. 7 says that he came to know of her intimacy with Varadarajan in November-December 1972 itself. If that be the case, he would not have written the letters Exs. P. 1 and P, 2 which show his uncontrollable desire to embrace her and lie with her (Ex. P. 1). According to the evidence of P.W. 1, she was driven out of her matrimonial home only in Nov. 1973. In view of these letters, which are couched in passionate language, one cannot rule out the possibility that the respondent had access to his wife, the petitioner, after writing these letters. For the foregoing reasons, I hold that non-access having not been proved, the conclusive presumption contemplated under Section 112 of the Evidence Act should be drawn in favour of the petitioner.
7. The next contention is that the petitioner is living in adultery with Varadarajan, aneighour and the second child was born out of the adulterous intercourse with Varadarajan, and therefore the petitioner is not entitled to claim maintenance. On this aspect, the respondent has adduced evidence of two witnesses, R.Ws. 1 and 2, who, it is alleged, have seen the actual act of sexual intercourse between the petitioner and Varadarajan. But R.W. 1 has not told anyone as to what he saw before he told the Panchayatdars. This conduct is rather inexplicable. R.W. 2 is one Dhanushkodi and it is in evidence of R.W. 1, that he and R.W. 2 are working together. In Pattayee Ammal v. Manic-kam : AIR1967Mad254 , Venkatadri J. observed thus (at p. 903 of Cri LJ).
Adultery, from its nature, is a secret act. Direct evidence of an act of adultery is extremely difficult. It is very rarely indeed that the parties are surprised in the direct act of adultery. Direct evidence, even when produced, the court will tend to look upon it with disfavour as it is highly improbable that any person can be witness to such act, as such acts are generally performed with utmost secrecy.
With respect, I agree with the observations. It is highly improbable that R.Ws. 1 and 2 who are working together would have witnessed the act of adultery. I cannot persuade myself to believe that the petitioner who is an educated woman would have sexual intercourse with a college boy during day time so openly as to be seen by R.Ws. 1 and 2. R.W. l's evidence is clearly unbelievable, because he has not told anyone about this till the Uravinmurai panchayat was held The evidence adduced to prove adultery is so poor in quality that I have no hesitation in rejecting it.
8. The next contention is that the petitioner is living in adultery with Varadarajan and therefore, the trial court was right in rejecting her application for maintenance. The term 'living in adultery' has engaged the attention of many courts. In Ramsaran v. Soman Wati .Tekchand J. abserves (at p. 486) :
Living in adultery' is living together as husband and wife and exercising sexual rights and duties implied by such relation when legally created. Proof of occasional acts of illicit intercourse may fall short of what is intended by the expression 'living in adultery'. It suggests a man and the wife of another living continually as husband and wife. An adulterous intercourse is a condition contemplating repetition of extra marital relationship when opportunity offers itself. It is a condition of cohabitation in contradistinction to occasional acts. The wife forfeits her right to be maintained on proof of repeated adulterous meetings.' In Kista Pxljai v. Amirthammal AIR 1938 Mad 833 : 39 Cri LJ 951, Pandrang Row J laid down with specific reference to Section 488 Cri. P.C. (old Code) that t the words living in adultery' are indicative of the principle that occasional lapses from virtue, are not sufficient and it must be shown that the wife was actually living in adultery with someone else, at or about the time of the application, which disentitles her to receive maintenance. The learned Judge observed Continued adulterous conduct is what is meant by living in adultery.' With respect, I agree with these observations. The term 'living in adultery' has now been consistently held to mean an outright adulterous conduct where the wife lives in a quasi-permanent union with the man with whom she is committing adultery. In this case, even the allegations do not furnish prima facie proof of conduct of what is within the contemplation of the law to deprive the wife of her right to be maintained. The evidence reduced falls short of the requisite legal test.
9. One other contention was that the marriage between the petitioner and the respondent has been dissolved by Uravi-namurai panchayat and therefore the petitioner cannot claim maintenance. R.Ws. 4 and 5 are the persons examined to prove the dissolution of the marriage. R.W. 4 stated that the Uravinamurai decided to dissolve the marriage between the petitioner and the respondent and accordingly under Ex. Rule 1 the marriage was dissolved, that the Uravinamurai used to settle disputes and that divorce is permissible in their community, In cross-examination, R.W. 4 admitted that R.W. 6, father of the respondent, is doing business in coconut and is having a coconut tope in Pamban and that he (R.W. 4) used to supply coconuts to him. It was suggested to this witness that the dissolution of the marriage is not permissible in their community, but he denied the suggestion. R.W. 5 is another panchayat-dar: He spoke also about the resolution of the panchayat to dissolve the marriage between the petitioner and the respondent, but he admitted that he has paid a fine of Rs. 50 in a petty case and has also paid a fine of Rs. 50 in a prohibition case. He is closely related to R.W. 6, father of the respondent. Their evidence is therefore not of much use. Even otherwise, there is absolutely no acceptable evidence to show that there was a custom among the members of the Nadar community to settle disputes by the Uravinamurai of the community and that its decision is binding on them. The court has to examine whether the custom or usage pleaded had all the essential attributes of customary lawantiquity, certainty, invariability and reasonableness. There is no evidence on this aspect. It is stated in the counter of the respondent ' that customary divorce is recognised in the community to which he and the petitioner belong. When a custom is pleaded, it has to be established strictly and necessary elements to warrant an inference of the .existence of a custom or usage having the force of law have to be established. There is no evidence of specific instances of the observance of the custom. That is sufficient to dispose of this point and I hold that the respondent has not proved that there was a valid dissolution of his marriage with the petitioner.
10. For the foregoing reasons, I am of the view that the order of the learned Magistrate is not correct as he has overlooked the important presumption contemplated under Section 112 of the Evidence Act. Normally, the High Court would not go into the evidence in revision, but where it is apparent that the lower court has approached the matter overlooking important presumptions enacted, the High Court can consider the evidence and interfere in revision. The revision has therefore to be allowed. I am of the view that this is not a fit case which should be remitted back again for fixing the maintenance as this revision is. pending for more than two years. The evidence of P.W. 1 is that the respondent gets an income of Rs. 400 as a teacher and Anr. sum of Rs. 100 in tuitions and that he owns coconut tope worth Rs. 50,000 in Pamban and also owns four houses and the total income is Rs. 2,600 per month. The respondent would say that he does not know whether there is a coconut tope in Pamban. He does not say what his income is, but he has denied that he gets R.s. 2,600 per month. Therefore relying on the evidence of P.W. 1, we can affirm that the petitioner gets an income of Rs. 400 per month. It is in evidence that P.W. 1 is not working anywhere and is not having an income of her own and therefore is entitled to maintenance. The first child is with the respondent. P.W. 1 also admits that the respondent took the first child and sent her away when she was enceinte and therefore a sum of Rs. 80 (Rs. eighty only) per month towards maintenance for the petitioner and a sum of Rs. 40 (Rs. forty only) per month towards the maintenance of the second child will meet the ends of justice. The first child will not be entitled to maintenance, because it is with the respondent.
11. In the result, the revision is allowed and the order of the trial court is set aside and the respondent is directed to pay an allowance of Rs. 80 (Rs. eighty only) per month to the revision petitioner and a sum of Rs, 40 (Rs. forty only) per month to the second child before the 15th of every calendar month from the date of application. The arrears accruing till the disposal of this petition shall also be paid within a period of three months.