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Indian Evidence Act (1 of 1872), s. 112-Presumption of law-Conclusive proof of legitimacy-Birth during lawful wedlock. =The presumption under section 112 of the Indian Evidence Act is a conclusive presumption of law which can be displaced only by non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access connote existence and non- existence of opportunities for marital intercourse. Karapaya v. Mayandy referred to. Non-access can be proved by evidence direct or circumstantial though the proof of non-access must be clear and satisfactory as the presumption of legitimacy is highly favoured by law. The principle of English common law according to which neither a husband nor a wife is permitted to give evidence of non-access after marriage to bastardize a child born in lawful wedlock, does not apply to legitimacy proceedings in India as no such rule is to be found anywhere in the Indian Evidence Act and the old common law doctrine itself has been abrogated in England by the provisions of section 7 of the Matrimonial Cause Act, 1950. That by the evidence on the record the defendant No. 1 (husband) did not succeed in proving that there was no opportunity for intercourse between him and defendant No. 2 (his wife) at the time when the infant plaintiff was conceived and the High Court erred in holding that there was no opportunity for access between the parties at the material period.

PETITIONER:
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CHILUKURI VENKATESWARLU

 Vs.

RESPONDENT:
CHILUKURI VENKATANARAYANA.

DATE OF JUDGMENT:
08/12/1953

BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.

CITATION:
 1954 AIR 176 1954 SCR 424
 CITATOR INFO :
 R 1971 SC2352 (13)

ACT:
 Indian Evidence Act (1 of 1872), s. 112-Presumption of
 law-Conclusive proof of legitimacy-Birth during lawful
 wedlock.

HEADNOTE:
 The presumption under section 112 of the Indian Evidence
Act is a conclusive presumption of law which can be
displaced only by non-access between the parties to the
marriage at a time when according to the ordinary course of
nature the husband could have been the father of the child.
 Access and non-access connote existence and non-
existence of opportunities for marital intercourse. Karapaya
v. Mayandy referred to.
 Non-access can be proved by evidence direct or
circumstantial though the proof of non-access must be clear
and satisfactory as the presumption of legitimacy is highly
favoured by law.
 The principle of English common law according to which
neither a husband nor a wife is permitted to give evidence
of non-access after marriage to bastardize a child born in
lawful wedlock, does not apply to legitimacy proceedings in
India as no such rule is to be found anywhere in the Indian
Evidence Act and the old common law doctrine itself has been
abrogated in England by the provisions of section 7 of the
Matrimonial Cause Act, 1950.
 That by the evidence on the record the defendant No. 1
(husband) did not succeed in proving that there was no
opportunity for intercourse between him and defendant No. 2
(his wife) at the time when the infant plaintiff was
conceived and the High Court erred in holding that there was
no opportunity for access between the parties at the
material period.JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 73 of 1953.
 Appeal by special leave against the judgment and Decree
dated the 31st January, 1950, of the High Court of
judicature at Madras. (Rao and Nayudu JJ.) in Appeal No. 409
of 1946 arising out of the judgment and Decree dated the
31st January, 1946, of the Court of the Subordinate judge of
Bapatla in Original Suit No. 96 of 1944.
(1) 12 Rang. 243 (P.C.)
425
B. Somayya, Senior Advocate (M. Krishna Rao, with him)
for the appellant.
D. Munikaniah, Senior Advocate (K. R. Choudhury, with
him) for the respondent.
1953. December 8. The Judgment of the Court was ,delivered
by
 MUKHERJEA J.-This appeal is directed against a Judgment
and decree of a Division Bench of the Madras High Court
dated the 31st January, 1950, reversing, on appeal, those of
the Surbordinate judge, Bapatla, passed in Original Suit No.
96 of 1944.
 The suit, out of which the appeal arises, was commenced
by the infant plaintiff, now appellant before us,
represented by his maternal uncle as next friend, for
recovery of possession, on partition, of a half share in the
properties described in the schedule to the plaint on the
allegation that they were the joint family properties of
himself and his father, the defendant No. 1, in which he had
an equal share with the latter. The plaintiff is admittedly
the son of defendant No. 2, who is one of the legally
married wives of defendant No. 1, but the latter denied that
he was the father of the plaintiff and charged the
plaintiff's mother with misconduct. The defendant No. 3 in
the suit, who is the other living wife of defendant No. 1
and has no issue of her own, is alleged to have developed
ill-feeling and jealousy towards the plaintiff and his
mother and poisoned her husband's mind against them, so much
so, that the defendant No. 1 had actually instituted a suit
in the Court of the District Munsif at Ongole questioning
the legitimacy of the plaintiff. It was because of such
conduct on the part of defendant No. 1 that the present suit
had to be instituted.
 The defence put forward by defendant No. 1 to the
claim of the plaintiff was a denial of his paternity, and
the whole controversy in the suit centered round the point
as to whether the plaintiff was the legitimate son of
defendant No. 1 by defendant No. 2, Ms second wife. On the
admitted facts of the case, there could be no question that
the operation of section 112 of the Indian Evidence Act
would be attracted and the
426
plaintiff being born during the continuance of a lawful
wedlock between his mother and his alleged father, a
Conclusive presumption of legitimacy would arise, unless it
was proved that the parties to the marriage had no access to
each other at any time when he could have been begotten.
The point for determination, therefore, was, whether on the
evidence adduced in the case the defendant No. 1, upon whom
the burden Of proving non-access admittedly lay, had
succeeded in discharging that burden. The trial court
decided this point in favour of the plaintiff and against
defendant No. 1 and in that view substantially allowed the
plaintiff's claim. On an appeal being taken against this
decision by defendant No. 1 to the Madras High court, the
learned Judges, who heard the appeal, came to the opposite
conclusion and held that from the facts and circumstances of
the case an inference of non-access between the husband and
the wife could reasonably be drawn. The result was that the
decision of the trial court was reversed and the plaintiff's
suit dismissed. it is the propriety of this decision of the
Madras High Court that is challenged before us on behalf of
the plaintiff, to whom special leave to file the appeal in
forma pauperis was granted by this court.
 It may be stated at the outset that the presumption which
section 112 of the Indian Evidence Act contemplates is a
conclusive presumption of law which can be displaced only by
proof of the particular fact mentioned in the section,
namely, non-access -between the parties to the marriage at a
time when, according to the ordinary course of nature the
husband could have been the father of the child. Access and
non-access again connote, as has been held by the Privy
Council (1), existence and non-existence of opportunities
for marital intercourse. It is conceded by Mr. Somayya, who
appeared on behalf of the plaintiff appellant, that non-
access could be established not merely by positive or direct
evidence; it can be proved undoubtedly like any other
physical fact by
(1) Vide Karapaya v. Mayandy. 12 Rang 243.
427
evidence, either direct or circumstantial, which is relevant
to the issue under the provisions of the Indian Evidence
Act, though as the presumption of legitimacy is highly
favoured by law it is necessary that proof of non-access
must be clear and satisfactory. Mr. Somayya has also not
contended seriously before us that the principle of English
common law (1), according to which neither a husband nor a
wife is permitted to 'give evidence of non-access after
marriage to bastardise a child born in lawful wedlock,
applies to legitimacy proceeding in India. No such rule is
to be found anywhere in the Indian Evidence Act and it may
be noted that the old common law doctrine has itself been
abrogated in England by the provision of section 7 of the
Matrimonial Cause Act, 1950 (2 ).
 The position in law being thus made clear, the question
for our consideration primarily is whether the learned
judges of the High Court came to a correct decision on the
facts of the case. For this purpose, it is necessary to
have a clear picture of all the material events as they
transpired in evidence, and we will begin with a narrative
of the earlier facts about which there is little or no
controversyl.
 Defendant No. 1 admittedly married three wives. The
first wife died leaving a son aged 2 or 3 years at the time
of her death. The defendant No. I then married the mother
if the plaintiff and that was in or about the year 1930.
From the time of this marriage down to about 1940 the couple
seemed to have lived quite happily, except that there was no
issue of the marriage. Sometime before June, 1940, the
plaintiff's mother fell ill and was sent to the Government
hospital at Guntur for treatment. Her step-son, that is to
say, the son of defendant No. 1, by his predeceased wife,.
who was also suffering from certain ailments, at the time,
accompanied her to the hospital. After about a month both
of them returned and as defendant No. 2 was medically
advised to live separately from her husband for some time
she went to her father's place-
(1) Vide Russel v. Russel, [1924] A.C. 687.
(2)Vide Re Feniot, [1952] 1 All E.R. 1228.
428
The son of defendant No. 1 came back to the house' of his
father but his illness grew worse and in June, 1940, he
died. In August, 1940, defendant No. 1 married his third
wife who is defendant No. 3 in the suit. The case of
defendant No. 2 is that her husband treated her well for
about a year after he married the third defendant but later
on grew cold and indifferent and began to neglect her. She
made a grievance of this to her husband, but the latter told
her that she might' go away. Thereupon the defendant No. 2
did go to her father's place and on 19th March, 1942, she
filed an application in the Court of the District Munsif at
Ongole praying for leave to use her husband in forma
pauperis for separate maintenance. There were allegations
in the plaint of abandonment and neglect by the husband.
The defendant No. 1 in his answer to this application, which
was filed on 7th September, 1942, denied that he neglected
his wife, or was in any manner indifferent to her health and
comforts. It was averred that as the petitioner did not
bear him any child and the son by his first wife
unfortunately died, he had no other alternative but to marry
a third wife for the sake of progeny. It was expressly
stated in the counter-affidavit that the second wife was
living all -along in what was described as the mud-terraced
house and was getting her supply of food and other necessary
articles from her husband ; as a matter of fact, after
consuming all that she required for herself she was sending
the surplus, that remained, to her parents.
 It appears that, before this application for leave to
'Sue as a pauper was heard by the court, there was an
amicable settlement arrived at between the parties -through
the mediation of certain well-wishers and two documents,
namely Exs. P-5 and P-6, were executed by and between the
parties both on the 28th September, 1942. Exhibit P-5
purports to be a deed of maintenance and under it the
husband agreed to pay a sum of Rs. 100 per annum for food
and raiment to his second wife during the period of her
natural life, the payment to be made by the 30th of Magha
Bahula
429
every year. Certain properties specified in the schedule to
this document were kept as security for due payment of these
amounts. The only recitals in this document were that the
executant married a third wife as no son was born to him by
the second wife, that thereupon the second wife instituted a
suit for maintenance against him, and that under the advice
of respectable friends the document was executed with the
provisions contained therein. By Ex. P-6, the other
document, a residential house, known as the mud-terraced
house, was given to defendant No. 2 for the purpose of her
residence during her lifetime. The material portion of the
document stands as follows :
 "You are my wife. Due to the affection I have towards
you, I have given to you the property mentioned in the
schedule hereunder ...... and this very day delivered
possession of the same to you for your residential purposes
for your lifetime. Hence from now you shall live in the
said house and without powers of gift and sale the schedule
property shall, after your lifetime, pass to me and my
heirs."
 Within a few days after the execution of his document
defendant No. 1, on 5th of October, 1942, paid a sum of Rs.
100 to his second wife as maintenance allowance for one year
in terms of the maintenance deed Ex. P-5, and the defendant
No. 2 acknowledged payment of this money by putting her
thumb impression on a receipt which has been marked Ex. D-3
in the suit. It may be mentioned here that the defendant
No. 1 bad sometime before built another house which is
described as "tiled house" or "upstair house" and he
probably had the intention of removing to that house. As a
matter of fact, however, he did not remove thereto, the
ostensible reason assigned being that certain religious
ceremonies connected with entering into a new house could
not be performed. It is the case of defendant No. 2 that,
after these documents were executed and registered at
Addanki, she came back to the mud-terraced house and lived
there, since then, for several months along with her
husband. During this period she became enceinte and when
the
430
time for confinement came, she was taken to the Bayer
Hospital at Cherala where on the 16th of October, 1943, she
gave birth to the plaintiff. After delivery, she resided
with her child at her father's house and her husband came
there at times to visit them. When the infant was 7 months
old, she ;took him to her husband's place but her husband
asked 'her to remain for some time more with her father.
While staying at her father's house, she received summons of
a suit instituted by her husband (being Suit No. 326 of
1944) in the Court of the District Munsif at Ongole against
her praying for cancellation of the maintenance deed and the
deed of settlement mentioned above on the ground that she
was unchaste and had become pregnant by "immoral ways" and
that the son born of her was not his son. It was after this
notice that the present suit was instituted.
 As the plaintiff was admittedly born on the 16th of
October, 1943, he must have been conceived sometime towards
the latter part of December, 1942, or the beginning of
January, 1943. The material point for consideration,
therefore, is whether the defendant No. 1 has succeeded in
showing that there was no opportunity of access between him
and defendant No. 2 during this period ? The defendant No.
1 expressly stated in his deposition that his second wife
was a perfectly chaste woman up to the time when the
documents Exs. P-5 and P-6 were executed, and, even when
she received the maintenance allowance of Rs. 100 from him
in October, 1942. His specific case is that defendant No.2
did never come to reside with him in the mud-terraced house
after the compromise was arrived at in the maintenance case.
Where she stayed was unknown to him and he heard that she
went to Eddanapudi where she was living an immoral life with
her paramour, one Cherakuri Venkanna. This part of the
story of defendant No. 1, has not been, belived by either of
the courts below and may be rejected as altogether
untrustworthy. The learned judges of the High Court,
although they disbelieved the specific allegation of un-
chastity made against defendant No. 2 by her husband
431
and did not find that &he was at Eddanapudi at
the material period, yet relied on two sets of facts to be
noticed presently, as establishing conclusively that
defendant No. 2 did not live at the mud-terraced house at
any time after October, 1942, when she received the sum of
Rs. 100 as maintenance allowance for one whole year from,
her husband. The learned judges found, therefore, that
there was no opportunity for intercourse between defendant
No. 2 and her husband at the period when the boy must have
been conceived. In the first place, the High Court takes
the documents Exs. P-5 and P-6 as amounting to a sort Of
separation arrangement under which the parties agreed to
live separately from each other and this, according to the
learned judges, fully bears out the story of the husband
that defendant No. 2 never came to reside in the mud-
terraced house. The receipt of a sum of Rs. 100 by
defendant No. 2 as advance payment of maintenance allowance
for one year on 5th of October, 1942, indicates, according
to the learned judges, a final confirmation of the
separation arrangement and from this time onwards there was
a definite cessation of marital relations between the
parties. The second set of circumstances relied upon by the
High Court are the events which happened subsequent to 5th
of October, 1940, and which fortify the theory of a sepa-
ration between the husband and the wife. It is said that
the story of defendant No. 2 that her husband accompanied
her to the Bayer Hospital at Chirala when she went there for
her confinement is incredible. It is equally incredible
that defendant No. 2 did remain in her father's house for so
long a period after delivery with the consent of her
husband. It would be an extremely unnatural conduct on the
part of the husband, according to the High Court, if, as the
evidence shows, he refused to recognise his own son when he
was taken to him seven months after his birth and there is
no explanation as to why he would file a suit for
cancellation of the maintenance deed and the deed of
settlement, by imputing unchastity to his wife and bastardy
to his own son if the story of defendant
432
No. 2 about her previous relations with her husband was
true.
 In our opinion, the learned judges of the High Court
approached the facts of the case from a wrong standpoint
altogether and their conclusions are based for the most part
upon surmises and speculations and not what was actually
proved by the evidence. There is no warrant, we think, for
holding that the documents Exs. P-5 and P-6 were in the
nature of a separation agreement. Such an inference not
only goes against the tenor or the express terms of the
documents but is not borne out even by the evidence of the
mediators through whose mediation the documents were brought
into being or of the persons who were admittedly present at
the time when the documents were executed and signed the
same as attesting witnesses. Exhibit P-5, as stated
already, simply mentions the fact of the third marriage of
defendant No. 1 and the institution of a suit for
maintenance by his second wife. There is nothing in this
document which even impliedly suggests that in consideration
of receiving an allowance of Rs. 100 a year, the wife agreed
to reside separately from her husband. So far as Ex. P-6 is
concerned, the gift is expressly stated to be an affec-
tionate gift by the husband to the wife and it clearly
indicates that it was the intention of the parties that the
wife should reside there, and delivery of possession of the
house was given to the wife on the very same day that the
document was executed. We do not think that there is any
justification for holding that these recitals were false and
were not intended to be operative. D. W. 8, who is one of
the attesting witnesses to the documents and was examined on
behalf of defendant No. 1, says in his deposition that the
documents were read over to the executant and he executed
them after consenting to the recitals. P.W. 5, who was one
of the mediators, says that defendant No. 2 used to live in
the mud-terraced house after compromise. Unless there is
cogent evidence to the contrary-and apparently there is no
such evidence in the present case-we should certainly
433
presume that, the document Ex. P-6 was acted upon and that
the possession of the mud-terraced house was actually given
to defendant No. 2 in accordance with its terms. The High
Court, in its judgment, records a rather curious finding on
this point. "It may be,"' thus the judgment runs, "that
even down to Ex. D-3 one may presume that in the very house
allotted to her by Ex. P-6 she lived, so that up to the
date of Ex. D-3 it may be that there is no impossibility of
cohabitation between the parties. The real trouble arises
with reference to the state of affairs after Ex. D-3. We
find in Ex. D- 1 1 which - is the plaint in O.S. No. 326 of
1944 filed by the present first defendant against the
present second defendant for a cancellation of Exs. P-5 and
P-6 that he makes a definite allegation therein that from
the time that the plaintiff married his third wife there has
not been any bodily connection between him and the
defendant." The learned judges, in our opinion, misdirected
themselves in allowing these statements made by the husband
himself in the suit instituted by him nearly two years after
the material period, to influence their decision in regard
to the effect of Ex. P-6. Defendant No. 1 definitely
admits that his second wife was perfectly chaste at the time
when the sum of Rs. 100 was given to her on 5th of October,
1942, and the receipt Ex. D-3 was taken. There is not a
scrap of evidence to show that there was any bitterness of
feelings between the parties at that time. There could be
no doubt that the feelings of the husband were changed and
had become extremely bitter towards the plaintiff's mother
before he filed the suit for cancellation of the deeds in
July, 1944; but the statements made by the husband in the
plaint in that suit were made long after the dispute arose
between the parties, no matter whatever the reason might be
which gave rise to the dispute. In our opinion, the
subsequent conduct of defendant No. 1 or the statements made
by him in the suit of 1944 could not be regarded as part of
the res gestae and were not admissible as evidence against
the plaintiff. The ,defendant No. 1 could not certainly
constitute himself an agent of the plaintiff for the purpose
of making
434
admissions against the interest of the latter. If the
story. of defendant No. 1 that the wife went to Eddanapudi
and lived there an immoral life is disbelieved, as it has
been disbelieved by the High Court, the conclusion becomes
irresistible that she did reside at the mud-terraced house
as alleged by her and this is fully borne out by the terms
of the document Ex. P-6. There is no evidence of any
unnatural conduct on the part of defendant No. 1 towards the
plaintiffs mother at about the time when the plaintiff was
conceived. We do not consider it unreasonable, much less
unnatural, if the father of defendant No. 2 alone took her
to the hospital at Chirala at the time of her delivery and
himself bore all the hospital expenses; nor is it a matter
to be surprised at if defendant No. 2 after delivery stayed
for several months with her infant child in her father's
house. Apparently for some reason or other, the husband
took up an unnatural attitude, but this was a subsequent
event and whether he had really any grievance against his
wife, or his unnatural behaviour was due to the instigation
of his third wife, it is not necessary for us to investi-
gate. On the evidence, as it stands, we are clearly of
opinion that the defendant No. 1 did not succeed in proving
that there was no opportunity for intercourse between him
and defendant No. 2 at the time when the plaintiff was
conceived. He rested his whole case upon the allegation of
unchastity of the plaintiff's mother and of the plaintiff
being born as the result of fornication. While rejecting
that story, the High Court, in our opinion, erred in holding
that there was no opportunity for access between the parties
at the material period, relying mainly upon what the husband
himself said and did much after the estrangement of feelings
took place between the parties, no matter whatever that was
due to. In our opinion, on the evidence in the record
thefindings of the High Court cannot possibly stand. The
result is that the appeal 'is allowed, the judgment and
decree of the High Court are set aside and those of the
trial judge restored. The plaintiff will have his costs of
all the 'courts.
 435
 The court-fees payable to the Government will come out of
defendant No. 1 in this case. We certify for two counsel
and an agent in this appeal.
 Appeal allowed.
 Agent for the appellant: M.S.K. Sastri.
 Agent for the respondent: Naunit Lal.

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