The facts sufficiently appear from the judgments of the Court (1) which were as follows:—
Morris, J.:— This was a suit brought by a Mahomedan woman, one Woojan Beebee, wife of Jodu Nasaya, against a Hindu Addoyto Chunder Dass, by caste a Rajbunsi, for a declaration of right to recover Rs. 24 per annum for maintenance of a child begotten by him.
The first Court held that the suit would not lie, and dismissal the suit; but in appeal the lower Appellate Court was of opinion that the suit could be maintained, and remanded it to the lower Court for trial. Against this order the present appeal is preferred.
The ground taken by the lower Court is that, “under the Hindu Law even an illegitimate child is entitled to claim maintenance from his father, and I am not therefore prepared to think that the provisions of section 536 of Act X of 1872, can consistently deprive the remedy, which might otherwise be attained by recourse to a Civil Court.”
It should be noticed that in the plaint the plaintiff states that she had recourse to the Magistrate under section 536 of the Criminal Procedure Code, and that the Magistrate disallowed maintenance on the ground that it had not been proved that the defendant was the father of the child. Without entering into the question whether the Civil Court has jurisdiction to determine a point which has already been settled by the Magistrate under section 536 as to the paternity of the child, I think that a suit, such as this is, will not lie. The rule of Hindu Law referred to is not applicable to the circumstances of this case. It differs entirely from the case of the offspring of a female servant by the head male member of a family being entitled to maintenance. This is a case of a Mahomedan woman, whose husband is still living, suing a man of a different race for maintenance on account of the offspring of their unlawful intercourse. In my opinion a suit of this kind cannot be maintained in a Civil Court.
Therefore, the order of remand of the lower Court will be set aside, and the order of the first Court restored with costs.
White, J.:— This is a suit of an entirely novel character, being brought by a Mussulmani who describes herself as the wife of a living Mahomedan, against a Hindu whom she alleges to be father of a child of which she is the mother. The plaintiff seeks to recover from the defendant Rs. 2 a month as and for the maintenance of the child. The first Court has in substance held that the suit will not lie. The lower Appellate Court considers that it will lie, and has remanded the case to the first Court in order to try the issue whether the defendant is really the father of the child and, if so, whether he is liable to be sued by the plaintiff for maintenance for the child.
No authority has been cited, either based on English or on Hindu Law, shewing that a suit of this character will lie. On the other hand, decisions of this Court have been referred to by the pleader for the appellant which, though not directly in point, are adverse to the maintenance of such a suit.
I agree, therefore, with my brother Morris that in the present state of the authorities the first Court was right in holding that the suit was not maintainable, and that the order of remand made by the lower Appellate Court should be reversed.