C.A. Kalla Maistry vs Kanniammal and Others

Ganapatia Pillai, J.—The defendant is the appellant, the suit out of which this appeal arises was brought by the three respondents in the

Court of the Subordinate Judge of Ootacamund for maintenance on the ground alternatively that the first respondent was married to the appellant,

or was at least his permanently kept concubine, and that respondents 2 and 3 were born to the first respondent by the appellant. The Subordinate

Judge found against both cases, viz., the case of marriage and permanent concubinage, and dismissed the suit. On appeal, the learned Additional

District Judge, Coimbatore, found the case of permanent concubinage made out and granted a decree to respondents 2 and 3 awarding

maintenance at the rate of Rs. 30 per month which was the rate which the Subordinate Judge indicated would be the maintenance payable if he had

found that they were entitled to maintenance. The appellant seeks to dislodge the finding that the children (respondents 2 and 3) were born to him,

on the ground that the finding as to permanent concubinage of the first respondent is vitiated by the fact that the District Judge failed to take note of

two important pieces of evidence. The first is evidence furnished by Ex. B-15 and B-16 wherein it was stated on a prior occasion by first

respondent that respondents 2 and 3 were born to one Kalian. This Kalian is not the appellant. It is true the District Judge has not referred to this

piece of evidence, though the Subordinate Judge has referred to it. But, on that ground alone, it would not be permissible for this Court to interfere

in second appeal with a finding of fact when there is other material available to support the finding. In this case, there is ample material available to

support the finding of the District Judge as to permanent concubinage. I am not therefore inclined to Interfere with the finding arrived at by the

learned District Judge on that point.

Next Sri D. Ramaswami Aiyangar for the appellant contended that on the finding of the District Judge, the intercourse between the appellant and

the first respondent would be adulterous, because the husband or the first respondent is found by the Subordinate Judge and the District Judge to

be alive and consequently counsel argues that the illegitimate children born to a woman as a result of adulterous intercourse would not be entitled to

any relief under the Hindu law. We referred to the text books to show that such illegitimate children born of adulterous intercourse would not be

entitled to rank as heirs of sudras. That rule can apply only to inheritance as heirs. Certainly, it does not apply to a claim for maintenance as

illegitimate children. As early as Subramania Mudaliar v. Velu, ILR 34. Mad 68 it was laid down that an illegitimate son of a sudra born as a result

at adulterous intercourse would be entitled to maintenance at the hands of the putative father. The very argument now advanced namely that such a

claim would be opposed to public policy was rejected by the Bench in Sutramania Mudaliar''s case ILR 34 Mad 68 because the principle at Hindu

law under which maintenance is awarded is exclusion from inheritance. If that principle is Kept in view, there can be no distinction between the

case of an offspring of an adulterous intercourse and the Illegitimate son by an unmarried woman in so far as right to maintenance is concerned.

Another argument attempted by Sri Ramaswaml Aiyangar was that the continuance of a valid marriage would prevent any Inference being

drawn to the effect that the children born of the woman during the continuance of the valid marriage were born to another man as a result of

adulterous Intercourse. That is only a rule of evidence and not a conclusive presumption. It would be open in a particular case to show that despite

the subsistence of a valid marriage, the husband had no access to the woman at the concerned period and the children were born to the paramour.

There is evidence in this case to show that the first respondent''s husband deserted her many years ago and had nothing to do with her during the

time when respondents 2 and 3 could have been conceived. This is a rule of evidence and has no application to this case.

The second appeal therefore fails and is dismissed with costs. No leave.