ORDER
Koshi, C.J.
1. This Criminal Revision is directed against the order, dated 31-3-1958, of the learned First Class Magistrate of Karunagapally, in Miscellaneous Case No. 24 of 1958 of the file of his court, dismissing the claim a mother and her minor child made against the respondent herein for maintenance under the provisions of Section 488, Criminal Procedure Code. The respondent married revision petitioner 1 in February, 1954, but that marriage was dissolved by mutual consent under a registered deed, Ext P. 2, dated 24-11-1955.
Eighteen days thereafter revision petitioner 2 was born to revision petitioner 1. It would appear that some months after the birth of the child the mother was demanding maintenance for the child from the respondent and according to her they decided to enter into a fresh marriage between them. The marriage was solemnised on 30-8-1956. Differences however soon arose and the respondent complained to the police that he was compelled to enter into the second marriage against his will and by wrongfully confining him for some days.
Pursuant to the complaint the police registered a case against revision petitioner 1 and some of her relations and eventually a charge sheet was laid against them in C. C. No. 169 of 1956 on the file of the lower court. That case, however, ended in the acquittal of the accused persons. The petition giving rise to this revision petition was filed by revision petitioner 1 on 21-5-1957 claiming maintenance for her child as also for herself.
The respondent contested the claim under boththe heads and the lower court accepting his contentions dismissed the application. Hence this revision.
2. I shall first deal with the claim for the maintenance for the child (revision petitioner 2). In negativing that claim the learned Magistrate did not advert at all to the provisions in Section 112, Evidence Act (I of 1872), which is in the following terms :
'The fact that any person has 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'.
Revision petitioner 2 having been born within a short period of eighteen days after dissolution of the marriage between revision petitioner 1 and the respondent and the former not having entered into another marriage, before that, there was a conclusive presumption of law that the respondent was the father of the child. It can be displaced only by proof of non-access between the parties to the marriage when according to the ordinary course of nature the husband could have been the father of the child.
To quote the words of S. K. Mukherjee, J. (as he then was) in Venkatsawarlu v. Venkata Narayana, AIR 1954 SC 176 at p. 177, 'Access and non-access again connote, as has been held by the Privy Council : Vide, Kurapaya v. Mayandi, AIR 1934 PC 49, existence and non-existence of opportunities for marital intercourse'. In the case on hand there is no evidence at all about non-access; indeed no evidence in that regard was attempted by the respondent. Neither Ext. A2, the deed of divorce, nor the written, statement the respondent filed in the case set up such a case.
3. In this context it would be relevant to quote certain passages from the lower court's order dealing with the question of the respondent's liability to maintain the child.
'The counter-petitioner admits the marriage with 1st petitioner and the divorce evidenced by Ext. P. 2. But he swears that he never believes himself to be the father of the 2nd petitioner and that he was forced to divorce the 1st petitioner due to her immoral and unchaste life'.
Again, after devoting some attention to the point that in Ext. P. 2 the respondent did not own the paternity of the child that was then in womb of his wife and after stating that impliedly the document had absolved the respondent of any liability to maintain the child, learned Magistrate went on to say:
'Further more the fact that the 1st petitioner was bearing a child is not even mentioned in Ext. P, 2 ......... that child was born 18 days afterthe divorce, but there is not even a remote reference that the 1st petitioner was pregnant and that the counter-petitioner is responsible for it. In the circumstances and in view of the evidence lending to show that the 1st petitioner is not a woman of strong moral character, I doubt very much the parentage of the 2nd petitioner and feel inclined to hold that it is not proved beyond doubt that the counter-petitioner is the lather of the 2nd petitioner.'
It is clear that the learned Magistrate misdirected himself as to the law bearing on the subject. According to him to sustain the claim for the child's maintenance the claimant had to establish, it as a positive fact that the respondent was the father of the child. Indeed it is that contingency that Section 112. Evidence Act, seeks to avoid. Even the respondent was not prepared to say that when revision petitioner I could nave conceived revision petitioner 2 he had no access to her.
To use the words of the learned Magistrate himself all that the respondent was able to state was that he never believed himself to be the father of revision petitioner 2. According to revision petitioner 1 for some months after the marriage (first) she lived with the respondent happily as man, and wife. Even if they were not living together at the time revision petitioner 2 was conceived it had to be borne in mind that the husband and wife belonged to the same pakuthy (village) and that even their Muri (Sub-division of a village) was the same. Certain portions of the head-note in AIR 1934 PC 49, referred to in the Supreme Court case cited above may usefully be quoted here :
'The burden of showing that parties to marriage had no access to each other at any time when child could have been begotten is on the person challenging legitimacy of the child.'
'The parties to marriage were in touch with each other, residing for a short period in reasonable proximity, the wife being in the house of a relative of the husband. There Was nothing to suggest that she was unfaithful or that the parties were on terms of personal hostility.'
The relevant head-note to a Madras decision; Krishnappa v. Venkatappa, AIR 1943 Mad 632, by Chandrasekhara Ayyer, J., wherein the learned Judge followed the Privy Council decision reads as follows :
'There is a presumption of legitimacy in favour of a child born in lawful wedlock and this presumption is conclusive unless it can be shown that the husband and wife had no access to each other at any time when the child could have been begotten. In the absence of such evidence the child must be deemed to be legitimate even though the wife was living apart and leading an unchaste life.'
'The word 'access'' in Section 112 means Opportunity for sexual intercourse and not actual co-habitation.'
In the light of the above authorities it is clear that the learned Magistrate's view that in the circumstances of the case the respondent cannot be taken to be the father of revision petitioner 2 cannot be sustained. Nor was he right in negativing the claim for maintenance On the ground that by Ext. P. 2 the respondent had absolved himself from any liability to maintain the child. There is no express provision to that effect in the document and even if there is one, unless adequate provision has been made it cannot bind the minor child, see Anjayya v. Parutal, AIR 1952 Hyd 57.
Under Ext. P. 2 revision petitioner 1 received Rs. 500/- from the respondent, but Rs. 400/- out of that amount represented a loan which he had taken from his wife before the marriage and Rs.100/- was the compensation fixed for dissolution of the marriage. Absolutely no provision has been made for the child's maintenance. No doubt the document did not say that revision petitioner I had conceived through the respondent. His legal liability is there and on the materials before me there is no escape out of it. The lower court's order in this regard has to be set aside.
4. To my mind the second part of the order of the learned First Class Magistrate negativing the claim for maintenance of Petitioner 1 is equally unsustainable. In the written statement he filed in the case the respondent admitted having gone through the form of a marriage and having signed the S.N.D.P. marriage register. Ext. P. 1 is a copy of the relevant entry regarding the marriage of revision petitioner 1 with the respondent on BO-8-1956. His complaint both in his written statement and before the police was that he was forced to enter into that marriage by wrongfully confining him and bringing undue influence and coercion on him by that and other means.
The evidence of revision petitioner 1 and Pw. 4 show that besides the husband and the wife signing the marriage register there was also presentation of cloth by the husband to the wife. This part of the evidence was not challenged in cross-examination. Nor did the respondent in his evidence deny having made the presentation of cloth as spoken to by revision petitioner I and Pw. 4. The evidence shows that there was not the usual pomp and show for the second marriage, but all the same there was a regular marriage.
5. Before me there is only the interested evidence of the respondent to show that he had notwillingly entered into the second marriage with revision petitioner 1. One witness examined by him, C. P. W. 2, had only hearsay information that the marriage was a forced one. On the other hand revision petitioner 1 and Pw. 5 gave evidence that for one week after the marriage (second) the respondent cohabited with revision petitioner 1.
The respondent's criminal complaint was thrown out and on the evidence before me it was impossible to hold that there has been no valid second marriage. The learned magistrate concluded his discussion on this aspect of the case thus :
'The counter-petitioner appears to be a simpleton who taking the advantage of the old familiarity must have frequented the petitioner's house little dreaming that his wayward life would land him in such a trouble. I have no doubt in my mind that the signature and thumb impression of the counter-petitioner in the marriage register wastaken under duress and that no valid marriage came into being between him and the 1st petitioner on 14-1-1132 (30-8-1956)'.
Having lent his signature and thumb impression to the marriage register and having madepresentation of cloth as required for a valid Ezhava marriage, the respondent cannot in my view say in this proceeding that there was no valid marriage and that he was not liable to maintain his wife. It may well be that if his case is true he might have a cause of action before a civil court to avoid the marriage or to declare it null and void.
Perhaps that too is doubtful in view of the subsequent cohabitation. On the evidence I feel constrained to set aside the lower court's order on this aspect of the case also. I hold that the respondent is liable to maintain revision petitioner 1 as well.
6. The lower court has not discussed in its order what the proper rate of maintenance will be for revision petitioner 1 or revision petitioner 2. In view of its decision negativing the claim of both, the learned Magistrate thought that it was unnecessary for him to enter any finding with respect to that question. In the petition the claim made on behalf of the wife was Rs. 15/- and foe the child Rs. 7/-.
It was claimed that the child should be allowed maintenance from the date of its birth and the mother from the date of the re-marriage. That claim is certainly unsustainable and all that a criminal court acting under Section 488 Criminal Procedure Code can at best do is to award maintenance from the date of the petition -- see Section 488 (2).
7. As per the rate, the evidence does notshow that the respondent is a man of means. Allthe same it is his responsibility to maintain hiswife and child and he is an able bodied man. Regard being had to all the circumstances and thestatus the parties occupy in society, I think Rs. 10/-per month for the wife and Rs. 5/- per monthfor the child would be just and equitable and Iorder maintenance at that rate respectively to revision petitioners 1 and 2 with effect from the dateof the application, namely, 21-5-1957. Respondentwill also pay the revision petitioners' costs bothhere and in the lower court, Advocate's fee Rs.25/- in each court.