Second Appeal No.92 of 1988

26th August, 2003

Petitioner Counsel: Mr. K. R. LAMBAT
Respondent Counsel: Mr. A. B. CHOUDHARY

Cases Cited:
Smt. Kamti Devi Vs. Poshi Ram, AIR 2001 SC 2226 [Para 9,19]
M/s. Sodhi Transport Co. Vs. State of U. P., AIR 1986 SC 1099 [Para 10,20]
Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana, AIR 1954 SC 176 [Para 12,16]
Smt. Dukhtar Jahan Vs. Mohd. Farooq, AIR 1987 SC 1049 [Para 13,17]
Goutam Kundu Vs. State of West Bengal, AIR 1993 SC 2295 [Para 14,18]
Karapaya Vs. Mayandi, AIR 1934 PC 49(A) [Para 16]
Russel Vs. Russel, 1924 AC 687 (B) [Para 16]

JUDGMENT

JUDGMENT :- Invoking the jurisdiction of this Court under Section 100 of C.P.C., 1976, this Second Appeal has been filed by the appellants/defendants challenging the judgment and decree passed by the learned District Judge, Wardha on 07-02-1987 in Civil Appeal No.24/1984, setting aside the judgment and decree passed by the trial Court on 28-10-1983 in Regular Civil Suit No.227 of 1980. The Court of Appeal granted preliminary decree for partition in favour of the respondent / plaintiff by declaring that he is entitled to receive 1/3rd share in the joint family property owned by the defendant no.1 and further directed the latter to submit the accounts of the property from 1980-81 till the plaintiff is put in possession of his share, with further directions that the partition of the land shall be effected by the collector and the partition of the house shall be effected by appointing a Commissioner.

2. Brief facts are as under:

The plaintiff has instituted a suit for recovery of possession and partition of his 1/3rd share in the properties described in Schedule - A, B and C appended to the plaint. It is the case of the plaintiff that all the properties described in the Schedules are joint family properties owned by the defendant no.1 (died during the pendency of this this appeal and his L.Rs. are brought on record). It is contended that the defendant no.1 is the father and the defendant no.2 is his step brother, and the plaintiff and the defendants were members of the Hindu Coparcnery, governed by Mithakshar School of Hindu Law. It is contended that the defendant being the father, did not care for the maintenance of the plaintiff and, therefore, the latter has brought the suit for possession as well as separate 1/3rd share in the suit properties.

3. The defendant no.1 combated the claim by filing written statement and contended that the plaintiff is not his son and the former has denied the paternity. He contended that Kalabai @ Satyabhamabai (P.W.5) is the mother of the plaintiff and her marriage was solemnized with this defendant no.1 according to Hindu religious rights in the year 1950. Both the husband and wife lived together in the matrimonial home till the year 1955. The wife Kalabai @ Satyabhamabai left the house of her husband before Ramnavami i.e. in the month of April, 1955 and thereafter she did not return to her matrimonial home. She was called upon to join him by notice dated 21-06-1955 to which a reply was given by the wife on 11-07-1955. It is contended that the wife did not join the defendant no.1 thereafter, and she left the matrimonial home and went to Daulatrao Choudhari at Sastabad, Tahsil Hinganghat and lived with him. It is contended that she had conceived a child from Daulatrao Choudhari and gave birth to the male child i.e. the plaintiff on 21-01-1957 at his residence. It is contended that the plaintiff has absolutely no right to claim anything against the defendant no.1 and his property.

4. Both the parties adduced oral as well as documentary evidence. The plaintiff had examined as many as 6 witnesses and the defendant no.1 has examined himself and one witness Rama Nandurkar. The trial Court on appreciation of the evidence came to the conclusion that the plaintiff has failed to establish that he was the son of defendant no.1. He concluded that the presumption of law under Section 112 of the Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act' for short) is not available to the plaintiff, unless it is shown that the parties to the marriage had access to each other at any time when he could have been begotten. The trial Court recorded a finding that the defendant no.1 - husband has proved non access to his wife P.W.5- Kalabai @ Satyabhamabai, though the marriage is still subsisting and therefore, he refused to draw the presumption under section 112 of the Evidence Act. Consistent with these findings, he dismissed the suit with costs. Being aggrieved, the plaintiff carried appeal to the District Court. The Appellate Court on appreciation of the evidence, framed the following points for determination together with their findings recorded against them :

(1) Whether the appellant is the son of the defendant no.1 born from PW-5 Kalabai @ on 21-01-1957

as alleged ? .. Yes.

(2) Whether the evidence adduced in the case the defendant no.1 upon whom the burden of proving non-access admittedly lay had succeeded in discharging the

burden ? ..No.

(3) Whether the appellant is entitled to 1/3rd share in the property described in plaint Schedule A,

B and C? ..Yes.

(4) Whether he is entitled to 1/3rd share in the profits of the property from the date of suit till

he gets his share in the property? ..Yes.

(5) What order ? ..Appeal allowed as per order passed below.

5. The Appellate Court reversed the findings of the trial Court and passed a decree for 1/3rd share in the suit property for partition and separate possession in favour of the plaintiff. The defendant no.1 died during the pendency of the appeal, and his legal heirs have been brought on record. That is how the defendants are before this Court in this Second Appeal.

6. Mr. Lambat, the learned Counsel appearing for the defendants, contended that Kalabai @ Satyabhamabai is the wife of the deceased defendant no.1 and the marriage between them was solemnized in the year 1950, according to Hindu religious rites and thereafter the husband and wife stayed together only for a period of 5 years, i.e. from 1950 to 1955. He contended that the wife left the matrimonial home in the year 1955 and thereafter she did not return. He contended that the evidence adduced by defendant no.1 - Vithal @ Waman (D.W.1) would clearly show that he had given reply to the notice dated 11-07-1955, and the trial Court has rightly considered the evidence adduced by both the parties on record and has recorded a finding of fact that the husband had no access to his wife, after she left the matrimonial home in the year 1955, and as such the presumption of law under section 112 of Evidence Act, cannot be drawn.

7. He contended that the trial Court rightly considered the evidence of Rama (DW-2) who is neighbour and this witness corroborates the version of the husband Vithal. He further contended that there was no possibility for the wife to return in the martimonial home after April,1955 and this would be clear from the contents of the notice reply dated 11-07-1955. The relations between the parties were strained and hence the wife left the matrimonial home. He contended that after April,1955 the husband had no opportunity to have access to his wife, and since the evidence on record would clearly show that after she left the matrimonial home in the month of April, 1955 she did not return in the matrimonial home, burden is shifted on her to show that her husband had access to her.

8. Mr. Lambat, contended that the plaintiff was born on 21-01-1957. He contended that Kalabai @ Satyabhamabai - PW-5, remarried with one Daulatrao Choudhari, and the plaintiff was begotten at Sastabad at the residence of the second husband. The plaintiff was admitted in the primary school and the headmaster of the primary school had issued date of birth certificate (Exh.34) which would show that the father's name of the plaintiff mentioned in the school register was Daultrao Choudhari. Mr. Lambat, also pointed out that the school leaving certificate Exh.34, issued by the Headmaster of the Primary School, Sastabad would show that the name of the father of the plaintiff recorded in the school register was Daultrao Choudhari. He therefore, contended that the trial Court appreciated the oral as well as documentary evidence adduced by the defendants in its proper perspective, and therefore the Appellate Court has committed a patent error of law in reappreciation of the evidence, and thus, the judgment and decree passed by the Appellate Court cannot be sustainable in law.

9. Mr. Lambat, further contended that the standard of proof required to displace the conclusive presumption in favour of paternity of child born during the subsistence of a valid marriage depends upon the preponderance of the probabilities and the oral evidence, led by the parties can be considered to arrive at a conclusion as to whether non access have been proved. In support of this submission, he relied on the decision of Supreme Court in the case of Smt. Kamti Devi and another Vs. Poshi Ram, (AIR 2001 SC 2226)

10. Mr. Lambat, further contended that the presumption under section 112 of the Evidence Act is not in itself evidence, but only makes a prima facie case for a party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies when presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances. He therefore contended that in the present case the burden has been shifted on the wife to show access to her husband especially when the husband has proved that the wife left the matrimonial home in the year 1955, and therefore, she did not return to him. He therefore contended that the husband has rebutted the presumption. In support of this submission he relied on the decision of the Supreme Court in the matter of - M/s. Sodhi Transport Co. and another Vs. State of U.P. and another (AIR 1986 SC 1099).

11. Mr. A. B. Choudhary, the learned Counsel for the plaintiff contended that the Appellate Court has recorded a finding of fact which cannot be interfered with in this Second Appeal because, no substantial question of law arises for consideration. He contended that the defendant no.1 husband admitted in the cross examination that his marriage with the Kalabai @ Satyabhamabai - P.W.5 was subsisting and it is a fact that she delivered a male child on 21-01-1957 in Matru Seva Sangh Maternity Home, Hinganghat. He contended that the relevant entries (Exh.26) recorded in the register maintained at remand home and those entries have also been proved through Mr. Prabhakar (P.W.3). In the entry recorded in the remand home the name of the defendant no.1 has been shown as father of the plaintiff. He therefore, contended that as per Section 112 of the Evidence Act, the presumption has to be drawn that the plaintiff is the son of the defendant no.1. He contended that this presumption of law though rebuttable, if the husband fails to establish non access and and if the marriage is subsisting then the fact that any person was born during the continuance of the valid marriage between the mother and any man, the mother remaining unmarried, shall be a conclusive proof that he is the legitimate son of that man.

12. Mr. Choudhary, further contended that in the present case, the defendant no.1 husband relied on the certificate of birth (Exh.34) and School Leaving Certificate (Exh.37) issued by the Headmaster of Primary School, Sastabad wherein the father's name of the plaintiff is shown as "Daulatrao Choudhari". But, both these documents were exhibited subject to the objection of the Counsel for wife. He contended that there is no proof regarding the contents of these documents. The Headmaster of the school who has issued these certificates has not been examined, and therefore, both these documents are not of any avail to the husband to prove non access. He contended that there should be a clear and satisfactory proof on record regarding non access. In support of this submission he relied on the decision of Supreme Court in Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana, (AIR 1954 S.C. 176).

13. Mr. Choudhary, further contended that the Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. It is contended that the husband / defendant no.1 did not adduce any material evidence on record much less slender material to prove non access, and in support of this submission he relied on the decision of the Supreme Court in Smt. Dukhtar Jahan Vs. Mohd. Farooq (AIR 1987 S.C.1049).

14. Mr. Choudhary, also contended that there must be a strong prima facie case in existence, that the husband must establish non access in order to dispel the presumption arising under section 112 of the Indian Evidence Act, and it is rebuttable presumption of law that child born during the lawful wedlock is legitimate, and that access occured between the parents, and this presumption can only be displaced by strong preponderance of evidence, and not by mere balance of probabilities. In support of this submission, he relied on the decision of the Supreme Court in the case Goutam Kundu Vs. State of West Bengal and another (AIR 1993 S.C.2295).

15. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. In order to appreciate the contentions of the learned Counsel it is necessary to reproduce Section 112 of the Indian Evidence Act, which 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 hundered 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".

16. In Chilukuri Venkateswarlu's case (cited supra), it has been observed by the Supreme Court as under :

"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 : Vide 'Karapaya Vs. Mayandi', AIR 1934 PC 49(A), 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 evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumptions 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: Vide 'Russel Vs. Russel', 1924 AC 687 (B), accordingly 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, 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."

17. In Smt. Dukhtar Jahan's case (cited supra), it has been observed by the Apex Court in para no.12 that "Another serious infirmity noticed in the judgment is that the learned Judge has completely lost sight of Section 112 of the Indian Evidence Act. Section 112 lays down that if a 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 and the mother remains unmarried, it shall be taken as 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, when he could have been begotten. This rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother as unchaste woman."

18. In Goutam Kundu's case (cited supra), the ratio laid down by the Supreme Court is that "Presumption of law under Section 112 that a child born during the lawful wedlock is legitimate, and that access occurred between the parents, and this presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption.

19. In Smt. Kamti Devi's case (cited supra) the Supreme Court while considering the point of conclusive presumption in favour of paternity of child born during the subsistence of a valid marriage, observed that, "Whether the burden on the husband is as hard as the presumption 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 set 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 the 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 to the peril of being illegitimatised. If a Court declares that the husband is not the father of his wife's child, without tracing out its real father the fall out on the child is ruinous apart from all the ignominy visit his mother. The bastardized child, when grows up would be socially ostracised and 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 be 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."

20. In M/s. Sodhi Transport Co. Vs. State of U. P., (cited supra) while considering the history of rules regarding presumption, the Supreme Court observed that, "A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts, and circumstances."

21. So far as the ratio down by the Supreme Court in the aforesaid decision is concerned, there cannot be any quarrel that presumption under section 112 of the Evidence Act can be drawn and can be considered as a conclusive proof of the fact that a person has been born during the continuance of a valid marriage and the said presumption can be rebutted only by adducing evidence by the husband, regarding non access. The standard of proof required for proving non access may not be that high as required for proving the guilt of the accused in a criminal case but it is certain that, there should be clear and satisfactory proof on record to prove non access. Slender material would not be sufficient to prove the same. Once it is shown that the marriage was subsisting and, there was opportunity for having access, preponderance of probabilities also will have to be taken in to consideration for drawing the presumption and the same can be the conclusive proof of legimacy of the child born during the valid wedlock. The burden would not shift on the wife but it would be on the husband to prove non access in such situation.

22. In the present case the Appellate Court has recorded a finding of fact that the marriage between the parties was subsisting and more over it was admitted by the defendant no.1 - husband that his marriage on the date of birth of the a plaintiff was subsisting and was not dissolved. The Appellate Court also recorded a finding of fact that the plaintiff was born on 21-01-1957, and the Appellate Court has also on appreciation of the evidence, come to the conclusion that the marriage between the parties was solemnized some time in the year 1950, and they continued to live together till 1955. Thereafter, there were domestic quarrels between the spouce and hence P.W.5 Kalabai @ Satyabhamabai left the matrimonial home, but on persuasion by her relative Bapurao (P.W.6), she joined her husband and lived with him for 12/13 months and during the period of 12/13 months, in the year 1957 she conceived, and thereafter, she was ousted from the matrimonial home. She came to her mother's home and delivered a child in the Matru Sewa Sangh Maternity Home.

23. The Appellate Court also considered the oral as well as documentary evidence on record. The Appellate Court recorded a finding that, the entries recorded in the register maintained at Matru Sewa Sangh Maternity Home are duly proved through the evidence of Padma (P.W.4) who was working as Manager in that Maternity Home, and the entry clearly reveals that the name of the father of plaintiff is shown as Vithal @ Wamanrao i.e. the defendant no.1. The Appellate Court also considered the extract of the entries recorded in the remand home register, because the plaintiff was required to be admitted in remand home for some time and the extract of the entries i.e. Exh.24, has been duly proved through the evidence of Prabhakar (P.W.3), who was working as clerk in the remand home. In those entries name of defendant no.1 has been shown as father of the plaintiff. Similarly, the Appellate Court has also taken into consideration that the marriage of the plaintiff was performed on 04-07-1979 and in the marriage invitation card name of defendant no.1 is printed as father of the plaintiff, which was not objected to by the defendant no.1. The Appellate Court also considered the oral evidence of Kalabai @ Satyabhamabai (P.W.5).

24. The husband i.e. defendant no.1 examined himself and also relied on the evidence of Rama (D.W.2), who is his neighbour who testified that the defendant no.1 had no access to his wife since the year 1955. The defendant no.1 had tried to derive support to his contentions from the two documents i.e. the certificate of birth and school leaving certificate issued by the Headmaster of the Primary School, Sastabad. What is relevant to note is that the Appellate Court observed that those documents are not admissible in evidence, and no proof of its contents was adduced. The Headmaster who is said to have issued these two documents to show that name of Daulatrao Choudhari is shown in the school record as father of the plaintiff, has not been examined, and therefore, no presumption can be drawn that Daulatrao Choudhari is the person from whom the plaintiff is begotten.

25. In these circumstances, it is not possible to accept the contentions of the learned Counsel for the defendant no.1 that Kalabai @ Satyabhamabai left the matrimonial home in April, 1955 and did not return to her matrimonial home, and therefore, the burden is shifted on the wife to establish that her husband had access to her. In fact the finding of the Appellate Court that the husband i.e. defendant no.1 has failed to prove non access and the marriage between the parties was subsisting, and therefore, the presumption of legitimacy can be drawn, cannot be said to be not based on proper appreciation of evidence on record. In such circumstances, the authorities on which reliance is placed by the learned Counsel for the defendant are not of any avail to him, and on the contrary supports the case of the plaintiff, that a strict, clear and satisfactory proof is required in order to prove non access, and slender material cannot be taken into consideration.

26. On close scrutiny of the material brought on record, I am of the considered view that this Court would not be justified in interfering into the findings of fact recorded by the Appellate Court. The conclusion drawn by the Appellate Court was reached on the strength of the evidence adduced by the parties, and the Appellate Court was justified in coming to the conclusion that the defendant no.1 husband has failed to prove the non access, and when the marriage was subsisting, there was every opportunity for having access and therefore, the findings thus reached by the Appellate Court which is a final Court for finding of fact cannot be interfered in the Second Appeal, and I am of the view that no substantial question of law is involved in this appeal and therefore, the appeal is dismissed with costs.

Appeal dismissed.