Trevelyan and Beverley, JJ.
1. In this case the Officiating Magistrate of the Northern Division made an order against Nur Mahomed, the applicant before us, directing payment of Rs. 15 a month for the maintenance of a child, which the Magistrate found to be his child by one Bismulla Jan. We were asked, in the exercise of the revisional jurisdiction of this Court, to set aside that order. We gave a rule, and we were to a very great extent, if not entirely, induced to grant that rule by the circumstance that the Magistrate had compared the child, produced in Court, with what he recollected of the lineaments of Nur Mahomed, who had not appeared in Court, and thus acted upon the information, which he had obtained otherwise than in his Magisterial capacity, and also by the circumstance that he relied on the resemblance of name between the infant and the putative father. In granting the rule, we stated that the fact that Nur Mahomed had not been called as a witness was a circumstance weighing so strongly against the applicant that, although we sent for the record, we could not hold out to the applicant much hopes of success. Now we have heard Counsel on both sides; and the main contention placed before us by Mr. Phillips is that the suggestion of marriage having failed, the whole case failed. We however think that the basis of an application for the maintenance of a child under the provisions of Section 488* of the Code of Criminal Procedure is the paternity of the child irrespective of its legitimacy or illegitimacy. The fact of the marriage of the parents may be not only strong evidence to show paternity, but also raises a presumption which has a very strong bearing upon the question of paternity. The summons, which is in the record called a charge, runs thus: 'That you, having sufficient means, refused to maintain your child Nur Ahmed, about 3 1/2 years' old.' This would have been quite sufficient for the present purposes, but the summons then states further 'the said child is by your nika wife Bismulla Jan whom you have subsequently divorced.' The statement, as to the child being by his nika wife, is not at all a necessary statement, and the failure to prove marriage, does not, in our opinion, destroy the case altogether. The case for the plaintiff was that originally, when a child, she was in the keeping of Nur Mahomed; this relationship between them ceased to exist a short time after, when she went to a man called Ashgar; and after that, to Jogendro Churn Mullick. Subsequently she left Jogendro Mullick and married Nur Mahomed; and this child was the fruit of that marriage. The Magistrate, after hearing the evidence, came to the conclusion that the marriage was not proved; and we think that the Magistrate was right in coming to that conclusion. It appears however from the evidence that since the day on which the marriage is said to have taken place, this woman lived with Nur Mahomed and Nur Mahomed alone, until the child was born.- She speaks to-it, and there are witnesses who corroborate her statement. That would show, if uncontradicted, that this man was the father of the child. In fact they both lived together, and during this period the child was conceived. Evidence was given suggesting that Jogendro Mullick was the father of the child; but the evidence on this point has been disbelieved by the Magistrate, and we cannot say that the Magistrate was wrong. The evidence on the record shows, in the opinion of the Magistrate, that Nur Mahomed only could have been the father of the child, and there is evidence from which the Magistrate could arrive at such finding. Nur Mahomed was not called in the Police Court to contradict the case for the prosecution; and, except his Counsel in Court, no one on his behalf seems to have denied the paternity, and he never denied it. In England, it has been held more than once that, under the provisions of 14 and 15 Vic, c. 99, Section 2, bastardy proceedings are regarded as civil proceedings and the parties to them are capable of giving evidence; and, according to the case cited to us of Mr. Justice Wilson's, taken together with the English cases, there can be no question that bastardy proceedings are civil proceedings within the meaning of Section 120 of the Indian Evidence Act, and that the defendant thereto may give evidence on his own behalf. Mr. Phillips did not deny that this was the law; we are told that, after the witnesses for the defence had been examined, and Mr. Henderson had been heard in reply, Mr. Garth invited the attention of the Magistrate to the point whether Nur Mahomed was a competent witness or not. According to law, be was unquestionably a competent witness, and as he has not been called, we must make the usual presumption arising from the fact of such omission. The fact that counsel by an error of judgment, or for some other reason, omitted to call him, does not, in the smallest degree, interfere with this presumption.
2. We think, however, that the Magistrate was wrong in making use of his information, which he seems to have obtained otherwise than as a Magistrate. He was also wrong in using the circumstance of the similarity of names. That was not a circumstance which in the least could assist the Magistrate in coming to the conclusion of this kind. If it were so, any woman, by naming her child after a particular individual, might be able to make evidence in favour of herself, and thus give rise to a failure of justice. The Magistrate was therefore wrong in mixing up all these matters. But apart from these circumstances, there is ample evidence upon which the Magistrate could have made the order, and we have no reason to doubt the correctness of such order. The rule is discharged.
* Order for maintenance of wives and children.
[Section 488.-If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate, or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding fifty rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
Such allowance shall be payable from the date of the order.
Enforcement of order.
If any person so ordered wilfully neglects to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month.
Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her; and may make an order under this; section notwithstanding such offer, if he is satisfied that such person is living in adultery, or that he has habitually treated his wife with cruelty.
No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason, she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
All evidence under this chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases.]