ASIA Vs. AYIDRU
LAWS(KER)-1974-7-37
HIGH COURT OF KERALA
Decided on July 15,1974

Asia Appellant
VERSUS
Ayidru Respondents

JUDGEMENT

V.KHALID,J. - (1.) THIS revision arises from an Order of the District Magistrate,Manjeri,in M.G.No.109 of 1973 dismissing the application filed by the petitioner claiming main­tenance for her child,born in lawful wedlock with the respondent.In the application filed before the court below on 14th December 1972 claiming maintenance it was averred that the marriage between the petitioner and the respondent took place about 2 years ™ago and a child was born in that marriage.The marriage ended in divorce on 17th May 1972,by mediation,and the respondent agreed to pay a monthly allowance of Rs.25 to the child.Since the respondent failed to pay maintenance as under taken by him at the time of mediation,this petition was filed.In the counter filed by the respondent,the respon­dent denied the fact that the marriage took place two years ™ago.He stated that the ˜Nikah ™took place on 19th March 1971 but the marriage function ..[VERNACULAR TEXT OMITTED].. was only on 28th March 1971.One month thereafter,the respondent discovered that the petitioner was pregnant.Immediately she was taken to her house.Since the petitioner was pregnant at the time of marriage,the marriage is legally invalid.It is stated that there was a formal divorce of the formal marriage immediately after the child was born.The respondent also denied the fact of mediation.
(2.) THE petitioner in her examination -in -chief did not specify the date of the marriage but stated that three or four days after the birth of the child,the marriage was dissolved.She stated that the child was born 9 months after the marriage.In cross -examination,she was asked whether the divorce was not on 17th May 1972,to which she pleaded ignorance.She also stated that she did not know the respondent before the marriage;nor had she any connection with him before the marriage.She set up a custom that during the pregnancy divorce is not effected.P.W.2 is a witness examined on the side of the petitioner.He was a mediator also. The respondent in his evidence deposed that the marriage was on 19th March 1971 and the ..[VERNACULAR TEXT OMITTED].. was on 28th March 1971.According to him,the petitioner admitted that she was pregnant at the time of marriage.The birth of the child was on 8th November 1971 and divorce was not effected during the pregnancy of the petitioner since it was not usual to do so.He deposed that it was nearly a month after the marriage that he discovered that the petitioner was pregnant.
(3.) BEFORE the Magistrate,the respondent herein applied for testing the blood group of himself and the child.The petitioner did not consent to submit the child for a test.The court below based its decision on the dictum laid down by the Supreme Court in Nand Lal v. Kanhaiya Lal A.I.R.1960 S.C.882,regarding the jurisdictional fact of the paternity of the child: The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy.The section by conferring jurisdiction on the Magistrate to make an allowance for the maintenance of the child,by necessary implication,confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent.It is the duty of the Court,before making the order,to find definitely,though in a summary manner,the paternity of the child ;. The court below,relied on the following decisions on the consequence of the refusal by the party to submit to a blood test. It was observed in A.I.R.1959 Madras 396 that ˜the consequence of his refusal will be taken into consideration along other circumstances in evaluating the evidence against him.In A.I.R.1970 Madras 103, Jayaraj Anthony v.Mary Seemy Ammal, the refusal to submit to Medical Examination was taken as a circumstance tended to an adverse inference against the recalcitrant party.To the same effect is the decision in 1968 Calcutta 105 and A.I.R.1963 Gujarat 250.It may be noted that the C.P.was prepared to undergo the test which had the risk of going against petitioner who was the recalcitrant party.The conduct of the petitioner who declined to submit to the test would justify the necessary adverse inference against her case.Having regard to the above features I am inclined to hold that petitioner is not entitled to benefit of the presumption under section 112 of the Evidence Act.The decisions cited above are relied upon as guide ;. The court below drew an adverse inference from this conduct of the petitioner and dismissed the petition.;


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