ORDER
(1) This revision petition involves a question of some interest, whether with regard to children born out of lawful wedlock, any presumption of paternity can arise in a proceeding under Sec. 488, Cri. P. C. Merely upon the entries found in certain Birth Register extracts, where there is no evidence to show that the alleged father was the informant, or that he gave some information constituting an admission of paternity.
(2) Briefly stated, the facts are that the revision petitioner was on terms of illicit intimacy with the respondent, one Yesoda Bai alias Radha Bai, a person related to him. But the revision petitioner himself has a wife, and six children born to him in lawful wedlock. Whatever might have been the attitude of the revision petitioner in the court below, his learned counsel (Sri. N. Suryanarayana) now concedes that the intimacy itself is indisputable. Further, it is clear that one child was born to the revision petitioner and the respondent (the petitioner in the court below), and the maintenance awarded to that child is not now in issue before me. That is because the revision petitioner was himself the informant to the authorities regarding the birth in respect of that infant, and he acknowledged his paternity. Ordinarily, he will certainly be bound by that admission, upon the principle of Sec. 21 of the Indian Evidence Act.
(3) But the matter appears to be far different with regard to the three children, namely, Satyababa, now aged 14 years 6 months. Mohanababa, aged 9 years and Prema Bai aged 6 years, awards of maintenance in whose favour are canvassed in these revision proceedings. I am afraid that the relevant birth register extracts are totally useless, and they do not constitute evidence against the revision petitioner. Section 35 of the Indian Evidence Act has been referred to by the learned counsel for the respondent, but that would merely make the entries in such documents relevant facts, if the entries had been made by public servants acting in the discharge of their duties. In all these other documents the column relating to the informant is not filled up, and, as far as we can gather, the name of the father must have been furnished by the respondent herself. That is not evidence of paternity, being a unilateral statement by an interested party. The revision petitioner stated in his evidence in the court below, ” I was quite aware of ht registration and I did not object”. It is not very clear to me whether this relates to the child whose paternity is not in dispute now, or of the other children. In any event, I am aware of no principle of law under which the mere fat that a person does not take steps to amend an entry of that character, would constitute an admission of paternity; for any such inference to arise, there must be clear procedure for the deletion or amendment of such entries at the instance of other parties and it is not even clear that such a procedure exists. There is no doubt the evidence of certain other witnesses that the revision petitioner was regularly keeping the respondent as his mistress. But these witnesses were not specified in the original petition, and would thus appear to be ad hoc witnesses upon whose testimony great reliance cannot be placed.
(4) In any event, there are considerable difficulties in drawing an inference of paternity against the revision petitioner with regard to the three children whose case I am now concerned with. Conceivably, they might be the children born to the revision petitioner and the respondent in the course of their intimacy. Equally, that might not be so. No presumption of law can arise with regard to the paternity of infants born out of the lawful wedlock, unless it is established beyond doubt that the woman was the exclusively kept mistress of the man, and that the relationship was virtually one of monogamy, though there might not have been a legal marriage. The record is not adequate to sustain any such finding. The learned Magistrate appears to have a somewhat misdirected himself in thinking that, when the revision petitioner took no steps to have the entries in the birth certificates amended, a presumption arises against him, which might be strengthened by the oral testimony. Further, the burden of proof is not upon the presumed father of the children in such a case. It is for the mother claiming maintenance to show that the children, though born out of lawful wedlock, could only have been born to the alleged father, under the circumstances of an exclusive relationship.
(5) Consequently, since it cannot be said that the evidence is adequate to establish paternity of these children, the revision will have to be allowed to that extent, and the order vacated as regards the payment of maintenance to the three children. This is without prejudice to the rights of the parties to have the penalty determined in proper civil proceedings, and to all liabilities arising therefrom, since proceedings under S. 488, Crl. P. C. Are
(6) Revision allowed.
