Presumption as to legitimacy of child.

The first petitioner before this Court is the wife and petitioners 2 and 3 are her minor children, aged 2 years, and 7 months respectively when the petition was filed. Respondent is her husband. The petitioners filed an application under section 488 of the Code of Criminal Procedure claiming maintenance from the respondent.

At the trial, after recording the evidence of 6 witnesses on behalf of the petitioners and of 7 witnesses on behalf of the respondent, the learned Magistrate held that the petitioners had failed to establish refusal or neglect by the respondent to maintain them. He also held that the evidence let in on behalf of the respondent indicated that there was some basis to say that the first petitioner had crossed the bounds of decency in behaving with one Gopalaswamy although it may fall short of proof of adultery or unchastity on her part. He rejected the application for maintenance filed by the petitioners. In this revision, the petitioners challenge the said order passed by the learned Magistrate.

Sri Satyanarayana, learned Counsel appearing on behalf of the petitioner, contends that the respondent has made serious allegations of unchastity against the 1st petitioner. He has made a false charge that petitioners-2 and 3 were not born to him, but were born as a result of the adulterous intercourse with one Gopalaswamy, who was a tutor of her two elder sons Jagannath and Srinath. These charges have been held to have not been proved by the learned Magistrate. Hence this would amount to cruelty entitling petitioner-1 to live separately and claim maintenance from the respondent. Sri Satyanarayana has relied strongly on a number of decisions of the various High Courts including the decision of this Court in Ananth v. Lakshmi1, in support of his said contention. It has also been argued that the learned Magistrate never adverted to the question of maintenance of petitioners 2 and 3, the minor children who were admittedly in the custody of petitioner-1. The Court below has also failed to advert to the presumption under section 112 of the Indian Evidence Act that a person born during the continuance of a valid marriage shall be conclusive proof that he is the legitimate son, unless it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.

The respondent has clearly taken the stand that petitioners-2 and 3 were not born to him and were born as a result of illicit intimacy of petitioner-1 with Gopalaswamy. This charge has not been substantiated by him. His evidence is that he and the petitioner had abstained from sexual intercourse from May, 1961 with a view to limit the family and that thereafter only once in April, 1964, petitioner-1 had forced him to have sexual intercourse with her, obviously because she had then conceived the third child (2nd petitioner) through Gopalaswamy. Thereafter he had absolutely no such intercourse with the petitioner at any time. It may be mentioned that the third child (2nd petitioner) was born on 1st December, 1964 and the fourth child (Petitioner-3) was born on 28th June, 1966. It is not disputed by the respondent that he lived together with the petitioner-1 in the same house, till 21st December, 1966. The respondent has also conceded that he got the 1st petitioner admitted to the hospital for delivery of the fourth child although he knew that it was born of illicit intercourse. He also admits that he has claimed reimbursement of medical charges under Exhibits P-1 to P-3 on account of delivery of the third and fourth children, from the Coffee Board where he was employed. It is difficult to believe the respondent’s case that though he had absolutely no sexual intercourse with petitioner-1 from April, 1964, and though he knew that the last child which was born on 28th June, 1966, was not his child, he continued to live with petitioner-1, and made arrangements for the delivery of the child. The respondent’s own case is tha