IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 690 of 2003()
1. OMANA KUNJU AMRITHA RAJAKUMARI,
... Petitioner
2. SHILPA MARY, AGED 10, D/O.LATE
Vs
1. SANTHOSH D.JOSEPH, REIDING AT
... Respondent
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent :ADVOCATE GENERAL
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :08/08/2008
O R D E R
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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M.F.A.NO.690 OF 2003 (E)
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Dated this the 8th day of August, 2008
J U D G M E N T
KOSHY,J.
This appeal is filed by the appellants/petitioners against
the order of the Principal Sub Judge, Kochi, in
S.O.P.No.3/1996. First appellant is the mother of the
2nd appellant. Second appellant is the child born out of the
wed lock with the deceased Sri.K.J.Joseph, who died on
5.9.1995 in a bus accident at Palluruthy. He was an Assistant
Executive Engineer of the Kerala State Electricity Board. An
amount of Rs.2,07,855/- was due to him from KSEB. He died
intestate. Hence a petition was filed by the appellants for a
certificate for the collection of debts and assets of the
deceased in the name of the appellants/petitioners. The
respondent claimed that he is the son of the deceased and he
is also entitled to a share of the same. There is no dispute to
the effect that 1st appellant married Sri.K.J.Joseph, who died
on 5.9.1995 in the bus accident and the 2nd appellant is his
M.F.A.690/03 2
daughter. Earlier, Sri.K.J.Joseph married one Mary Devassia,
who was examined as RW1 in this case. Their marriage was
solemnised on 28.5.1984. According to her, delivery took
place on 30.5.1986. She was employed in Germany as a nurse
and she was residing therein. The marriage of RW1 with the
deceased ended in divorce on 9.12.1988. The allegation was
that she had illicit relationship with another person and he
subsequently married after the divorce. The case of the
appellants is that there is no evidence to show that the
respondent is the son of the deceased Joseph, and in the
divorce proceedings, various pictures showing the adulterous
life of RW1 was produced, which was not denied, and at that
time itself, she had illicit relationship, and therefore, it is the
contention of the petitioners/appellants that respondent is not
the son born through the deceased Joseph. But the court
below found that RW1 gave evidence that she delivered the
child on 3.5.1986 and asserted that child was conceived out of
relationship with deceased Joseph during the subsistence of
marriage. To prove that, she produced Ext.B2 Baptism
certificate. Even though it was argued that baptism
certificate was not authenticate and birth certificate was not
produced, the learned Judge found that even in the divorce
M.F.A.690/03 3
proceedings, it was found that she delivered the child on
3.5.1986 and there was no need to disbelieve the evidence of
RW1 regarding the delivery of the child on 3.5.1986. Ext.A6
order of divorce produced by the appellants also shows that
delivery of the child was on 3.5.1986. Next contention was
that even if she delivered the child on 3.5.1986, there is no
evidence to show that deceased Joseph is the father of the
child as she was living in Germany and deceased was working
as Engineer in KSEB at that time. According to RW1, during
the 2nd half of November, she reached Kerala, and they were
living together. It is argued that passport was not produced to
prove the above contention. But an ex parte order of divorce
(Ext.A5) was passed on the averments of the deceased Joseph
that she reached Kerala on 29.7.1985 and they lived together
upto 5.9.1985 in Kerala, and thereafter only she left for
Germany. The child was not a premature child. Normal
delivery is about 280 days after conceived, and therefore, if
they lived together from 29.7.1985 till 5.9.1985, the
presumption under Section 112 of the Evidence Act will apply.
Section 112 of the Evidence Act reads as follows:
M.F.A.690/03 4
112. 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.”
Here the presumption is applicable at the time of birth of the
child and till the marriage was in subsistence. The divorce
was only in 1988, even though the contention of RW1 that
when she left for Germany, Joseph also went to Germany and
they lived together for few weeks, that is not proved. The
fact that they lived together from the last week of July 1985
for a few weeks and the child was conceived during those
days, and delivered the child within 280 days and much before
her second marriage attracts the presumption. Apex Court
in various cases held that except in compelling circumstances,
Courts shall avoid conclusion declaring a child as ‘bastard’.
Even though petitioners produced Ext.A10 letter written by
the sister of RW1 to her which shows that even in 1984 itself,
M.F.A.690/03 5
they had some illicit connections with one Appachan and that
will not show that they had sexual intercourse before their
marriage. In any event, no evidence was adduced to rebut the
presumption. Therefore, court found that even though court
has got sympathy towards the appellants, it has to be held that
respondent is the child born from the deceased Joseph and he
is also entitled to /3 share of the assets of Joseph. We are of
1 rd
the opinion that on the basis of the evidence adduced and on
the basis of the presumption under Section 112 of the
Evidence Act, no interference is required, and hence, this
appeal is dismissed.
J.B.KOSHY, JUDGE
K.P.BALACHANDRAN, JUDGE
prp
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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M.F.A.NO. OF 2006 ()
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J U D G M E N T
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4th August, 2008