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PETITIONER:

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

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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

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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

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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

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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

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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

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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

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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.