This is a Criminal Revision Petition to revise the order of the lower Court directing the petitioner to pay a maintenance of Rs. 20 per mensem for the child of which the lower Court finds the petitioner to be the father. The grounds urged for the interference of this Court are that the Magistrate has generally neglected the principles of legal evidence and proof and has admitted evidence that was irrelevant.
In a case like the present, where the question at issue is, whether a certain man was the father of a certain child, it is prima facie improper to accept without corroboration, the mere statement on oath of the mother who asserts the paternity. It is so obviously to her personal benefit and interest to secure a father for her illegitimate child, who will relieve her of the costs of providing for his maintenance that her evidence in such a case cannot but be highly interested, and it would be unreasonable and improper for any Court to act merely on her own word without some independent corroboration of it such as will satisfy the Court that her claim is true. The lower Court has recognised this principle and appears to think that such independent corroboration has been established. But it appears to me that its view is wholly unjustified.
The lower Court relies first on a Municipal record of the birth of the child. In the first place, that record is merely a record of what the counter-petitioner herself said at the time of the birth. That is clearly no independent corroboration of her present statement. Farther, that record as it stands, does not clearly apply to the counter-petitioner, and her present amplification and explanation of that entry in Court so that it may now be held to apply to the counter-petitioner, is again no independent corroboration of her present evidence. The Magistrate is in error in holding that the entry was a matter which the petitioner had to explain away. It was for the counter-petitioner to give a reasonable explanation as to why she did not give the full name and description of the father of her child at the time of the birth. Consequently the Municipal record cannot be viewed as independent corroboration. Beyond it I find no sort of corroboration. The kind of evidence that one would look for to be given as corroboration in such a case would be evidence that at or about that time when the child was conceived, the petitioner was frequenting the society of the counter-petitioner, and had opportunities of access to her. Now, on her own evidence, it is clear that the child was conceived in Madras some time in April, 1918. I find no evidence that at or about that time, the petitioner was in her society or had opportunities of access to her. The learned Magistrate relies on the evidence of P. Ws. 8 and 9, her father and mother, P.W 2 a priest and P. Ws. 4 and 10. I had perused the evidence of these witnesses. If the father and mother were aware that in April, 1918 the petitioner and the counter-petitioner were meeting and visiting each other one would expect them to say in very definite terms. Instead of that their evidence is of the vaguest kind. They merely say that the petitioner “was visiting” the counter-petitioner. When and where they do not say P. W. 9 adds that no one else was visiting her; but that is hardly a matter on which she could be certain. I am unable to regard that evidence as in any way corroborative of the statement that the petitioner had access to the counter-petitioner at or about the time when the child was conceived. P. W. 2's evidence is merely a repetition of the statement by the counter-petitioner to him that some Protestant minister was the father of the child. The vagueness of this description is unfavourable rather than favourable to her case, and is in fact a contradiction of the counter-petitioner's own evidence, on the point. P. W. 4 speaks to a vague act of misconduct which he says he witnessed in 1918; but he fixes no date at all for this. P. W. 10 speaks to vague undated visits and repeats a statement by the parents made to her which is mere hearsay and, therefore, irrelevant. I am therefore wholly unable to find any corroboration of the counter-petitioner's evidence.
The learned Magistrate has not perceived the full effect of his findings and that they are in direct contradiction of the counter-petitioner's own evidence. The petitioner produced his diary, which, as I read the judgment, the Magistrate accepts as true. That shows that the petitioner was not in Madras in 1918 until the 6th of June, that is 254 days before the birth of the child. The Magistrate thinks, that the petitioner's absence from Madras until the 6th of June is quite reconcilable with the idea that he is the father of the child, because 254 days is according to medical science quite a long enough period for gestation. But the evidence of the counter-petitioner is perfectly clear that she was 3 months pregnant when the petitioner returned to Trivandrum, i.e, on the 29th June, and that the child underwent a normal period of gestation and was born a normal child. It is impossible to hold as the Magistrate does, that both the petitioner's diary and the counter-petitioner's claim are reconcilable.
That the counter-petitioner is not a truthful witness is further clear from the futility of her explanation why not a single one of the many letters and money order coupons sent to her by the petitioner, including one which her father says would completely prove her case, is produced. Her story is that when the child was 8 months in the womb in December, 1918, the petitioner got all these back from her on some promise or threat. But she admits that he was writing and sending money just as usual from December, 1918, until some time in 1924. All these subsequent papers she says that she has lost. The absurdity of such an explanation from a woman who says that she was all along hoping to bring the petitioner to consent to a marriage is obvious, and the absence of any scrap of paper though there ought to be any number of such showing what their relations were is a very strong indication that this explanation of hers is untrue.
The Magistrate's treatment of the whole of this case is decidedly defective. The fact that letters of which we do not know the contents passed between the parties in 1918 which is the most he finds proved is no corroboration of the fact that in April, 1918, the parties had or could have had access to each other. It is quite clear that the evidence of the counter-petitioner is by no means free from suspicion, and there is no independent corroboration of her present story. No Court is entitled to infer from such unsatisfactory evidence that the petitioner was the father of the child. I am therefore unable to support the conviction. The order of the Magistrate must be set aside.
I direct that the order passed by the Magistrate be cancelled.
W. S. S.Order set aside.