http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4

CASE NO.:

Appeal (civil) 3860 of 2001

PETITIONER:

SMT. KAMTI DEVI & ANR.

Vs.

RESPONDENT:

POSHI RAM RESP

ONDENT

DATE OF JUDGMENT: 11/05/2001

BENCH:

K.T.Thomas & R.P. Sethi

JUDGMENT:

THOMAS, J.

Leave granted.

L...I...T.......T.......T.......T.......T.......T.......T..J

What is the standard of proof required to displace the

conclusive presumption in favour of paternity of a child

born during the subsistence of a valid marriage? Is it

necessary that non-access should be proved beyond reasonable

doubt, or would it be sufficient to prove it by a

preponderance of probabilities? The maxim Pater est quem

nuptiae demonstrant (The father is he, whom the nuptials

indicate) has gained a sturdy legislative recognition which

resulted in the formulation of the rule of evidence

envisaged in Section 112 of the Evidence Act (for short the

Act). It is based on the English rule that the child born

in the wedlock should be treated as the child of the man who

was then the husband of its mother. Its only exception is

when the husband proves that he had no access to his wife at

the time of conception of that child. Section 112 of the

Act reads thus:

Birth during marriage, conclusive proof of legitimacy.

- The fact that any person was born during the continuance

of a valid marriage between his mother and any man, or

within two hundred and eighty days after its dissolution,

the mother remaining unmarried, shall be conclusive proof

that he is the legitimate son of that man, unless it can be

shown that the parties to the marriage had no access to each

other at any time when he could have been begotten.

The Section when stretched to its widest compass is

capable of encompassing even the birth of a child on the

next day of a valid marriage within the range of

conclusiveness regarding the paternity of its mothers

husband, but it excludes the birth happened just one day

after the period of 280 days elapsing from the date of the

dissolution of that marriage. The question regarding the

standard of proof for disrupting the conclusiveness of the

presumption has been mooted before us as a Single Judge of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4

the High Court of Himachal Pradesh refused to interfere in a

second appeal with a finding recorded by the District Judge

in a first appeal that the respondent-plaintiff has

discharged his burden of proof and consequently the

presumption stood rebutted. The facts which led to the said

finding are the following:

The marriage between appellant Kamti Devi and respondent

Poshi Ram was solemnised in the year 1975. For almost

fifteen years thereafter Kamti Devi remained childless and

on 4.9.1989 she gave birth to a male child (his name is

Roshan Lal). The long period in between was marked by

internecine legal battles in which the spouses engaged as

against each other. Soon after the birth of the child it

was sought to be recorded in the Register under the Births,

Deaths and Marriages Registration Act. Then the husband

filed a civil suit for a decree declaring that he is not the

father of the child, as he had no access to the appellant

Kamti Devi during the period when the child would have been

begotten.

The trial court, on the basis of admitted facts that the

parties are spouses of a valid marriage and that the

marriage subsisted on the date of birth of the child, relied

on the conclusive presumption mentioned in Section 112 of

the Act. The trial court further held that the husband

failed to prove that he has no access to his wife Kamti Devi

during the relevant period. Accordingly the suit was

dismissed.

But the first appellate court, after re-evaluating the

entire evidence, found that the husband plaintiff succeeded

in discharging the burden for rebutting the presumption by

proving that he had no access to the mother of the child

during a very long stretch of time covering the relevant

period. On the strength of the said finding the first

appellate court allowed the appeal and decreed the suit

declaring that the plaintiff is not the father of the child

Roshan Lal. The High Court refused to interfere with the

aforesaid finding in the second appeal on the premise that

the question whether Roshan Lal is the son of the plaintiff

is a pure question of fact which calls for no interference

by the Court in the second appeal under Section 100 of the

Code of Civil Procedure.

Learned counsel for the appellant raised two

contentions. First is that the District Court went wrong in

relying on the interested evidence of the plaintiff. Second

is that the High Court failed in formulating the substantial

question of law involved in this case as to whether the

burden of a husband- plaintiff (to prove that he had no

access to his wife) is as heavy as the burden of prosecution

in a criminal case to prove the guilt of the accused.

Earlier there was a controversy as to what is the true

import of the word access in Section 112 of the Act. Some

High Courts held that access means actual sexual intercourse

between the spouses. However, the controversy came to a

rest when the privy Council held in Karapvya Severai vs.

Mayandi (AIR 1934 PC 49) that the word access connotes

only existence of opportunity for marital intercourse. The

said legal principle gained approval of this Court when a

three judge bench had held Chilukuri Venkateswarlu vs.

Chilukuri Venkatanarayana (1954 SCR 424) that the law has

been correctly laid down therein.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4

When the legislature chose to employ the expression that

a certain fact shall be conclusive proof of another fact,

normally the parties are disabled from disrupting such

proof. This can be discerned from the definition of the

expression conclusive presumption in Section 4 of the Act.

Conclusive proof. -When one fact is declared by this Act

to be conclusive proof of another, the Court shall, on proof

of the one fact, regard the other as proved, and shall not

allow evidence to be given for the purpose of disproving

it.

But Section 112 itself provides an outlet to the party

who wants to escape from the rigour of that conclusiveness.

The said outlet is, if it can be shown that the parties had

no access to each other at the time when the child could

have been begotten the presumption could be rebutted. In

other words, the party who wants to dislodge the

conclusiveness has the burden to show a negative, not merely

that he did not have the opportunity to approach his wife

but that she too did not have the opportunity of approaching

him during the relevant time. Normally, the rule of

evidence in other instances is that the burden is on the

party who asserts the positive, but in this instance the

burden is cast on the party who pleads the negative. The

raison detre is the legislative concern against

illegitimatizing a child. It is a sublime public policy

that children should not suffer social disability on account

of the laches or lapses of parents.

We may remember that Section 112 of the Evidence Act was

enacted at a time when the modern scientific advancements

with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid

(RNA) tests were not even in contemplation of the

legislature. The result of a genuine DNA test is said to be

scientifically accurate. But even that is not enough to

escape from the conclusiveness of Section 112 of the Act,

e.g. if a husband and wife were living together during the

time of conception but the DNA test revealed that the child

was not born to the husband, the conclusiveness in law would

remain unrebuttable. This may look hard from the point of

view of the husband who would be compelled to bear the

fatherhood of a child of which he may be innocent. But even

in such a case the law leans in favour of the innocent child

from being bastardized if his mother and her spouse were

living together during the time of conception. Hence the

question regarding the degree of proof of non-access for

rebutting the conclusiveness must be answered in the light

of what is meant by access or non-access as delineated

above.

Whether the burden on the husband is as hard as the

prosecution to prove the guilt of the accused in a trial

deserves consideration in the above background. The

standard of proof of prosecution to prove the guilt beyond

any reasonable doubt belongs to criminal jurisprudence

whereas the test of preponderance of probabilities belongs

to civil cases. The reason for insisting on proof beyond

reasonable doubt in criminal cases is to guard against

innocent being convicted and sent to jail if not to extreme

penalty of death. It would be too hard if that standard is

imported in a civil case for a husband to prove non- access

as the very concept of non-access is negative in nature.

But at the same time the test of preponderance of

probability is too light as that might expose many children

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4

to the peril of being illegitimatised. If a court declares

that the husband is not the father of his wifes child,

without tracing out its real father the fall out on the

child is ruinous apart from all the ignominy visiting his

mother. The bastardized child, when grows up would be

socially ostracised and can easily fall into wayward life.

Hence, by way of abundant caution and as a matter of public

policy, law cannot afford to allow such consequence

befalling an innocent child on the strength of a mere

tilting of probability. Its corollary is that the burden of

the plaintiff-husband should be higher than the standard of

preponderance of probabilities. The standard of proof in

such cases must at least be of a degree in between the two

as to ensure that there was no possibility of the child

being conceived through the plaintiff-husband.

In Goutam Kundu vs. State of West Bengal {1993(3) SCC

418} this Court after considering an early three-Judge Bench

decision in Smt. Dukhtar Jahan vs. Mohammed Farooq

{1987(1) SCC 624} held that this presumption can only be

displaced by a strong preponderance of evidence, and not by

a mere balance of probabilities.

In the present case the first appellate court, which is

the final fact finding court, after evaluating the entire

evidence, came to the following conclusion:

In the present case the plaintiff has examined all the

evidence which he possibly could do in the circumstances.

He has proved by convincing evidence, that he did not visit

his village or house where the defendant was allotted one

room. He has further proved that the defendant also never

visited him at Mandi where he had been living for more than

2 year before the child was born to Kamti Devi. In other

words he has proved that he had no access or opportunity for

sexual intercourse with defendant No.1 for more than 280

days before Roahan Lal (defendant No.2) was begotten by the

defendant No.1

The said conclusion was reached on the strength of the

evidence adduced by both sides and the first appellate court

was satisfied in a full measure that the plaintiff-husband

had no opportunity whatsoever to have liaison with the

defendant mother. The finding thus reached by the first

appellate court cannot be interfered with in a second appeal

as no substantial question of law would have flowed out of

such a finding.

In the result we dismiss this appeal.