IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 103 of 2003(F)
1. LAILA, D/O.KAVATHANVEETTIL HAMZA HAJI,
... Petitioner
2. FATHIMATH SHABEEBA,
Vs
1. MUHAMMEDALI, S/O.VAKKAYIL MODUNNI,
... Respondent
For Petitioner :SRI.T.KRISHNAN UNNI (SR.)
For Respondent :SRI.ESM.KABEER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :02/07/2009
O R D E R
"CR"
R.BASANT & M.C.HARI RANI, JJ.
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Mat.Appeal No.103 OF 2003
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DATED THIS THE 2nd DAY OF JULY, 2009
J U D G M E N T
Basant, J.
(1) Does the prayer for declaration of
illegitimacy of a child born during the
subsistence of a valid marriage fall within the
sweep of explanation (e) to Section 7(1) of
the Family Courts Act?
(2) Is the presumption of legitimacy under
Section 112 of the Evidence Act available in
favour of a child born within 209 days of the
date on which access commenced between
the spouses?
These are the crucial questions that arise for consideration
in this appeal.
2. The appellants are a divorced wife and her minor
daughter. The marriage of the first appellant with the
Mat.A.No.103/03 -2-
respondent took place on 24.6.1985. The child in question
(the 2nd appellant) was admittedly born on 13.7.1994. The
marital tie was dissolved on 17.8.1995.
3. Long later, the respondent-husband alleged that
he came to know that his name has been entered in the
records of the Local Authority as the father of the child. He
called upon the Local Authority by Exhibit A4 lawyer notice
dated 20.2.2001 to reverse the entry regarding paternity in
the records. He received Exhibit A5 reply dated 24.3.2001
that it was not possible to do so. According to him, he then
had a cause of action and he came to the court for a
declaration that the child/second appellant herein is not a
legitimate child born to him in his relationship with the first
appellant herein.
4. The foundation of the claim for declaration is that
the husband was working abroad and had come back to
India only on 17.12.1993. 17.12.1993 is the earliest date on
which possible access was there between the spouses for
Mat.A.No.103/03 -3-
such pregnancy. The date of birth of the child is 13.7.1994.
There was only a gap of 209 days. From this, he concluded
that the child born during the subsistence of the matrimony
is not at all begotten to him in the marital tie. Hence, he
prayed for a declaration that the child is not his legitimate
child.
5. The application was resisted on various grounds.
It was contended that the husband has more than one
passport and it is not correct to say that he was in India only
on 17.12.1993 and thereafter. He was in India earlier. In
these circumstances, it was contended that access was
there even prior to 17.12.1993. It was further contended
that at any rate the presumption under Section 112 of the
Evidence Act applies and continues to remain in force.
Legitimacy of the child born in such relationship must be
conclusively presumed under Section 4 of the Evidence Act,
it was contended.
6. Parties went to trial on all these contentions. On
Mat.A.No.103/03 -4-
the side of the respondent/petitioner, a Doctor, who
attended on the first appellant for the delivery was
examined as PW1. The respondent herein examined himself
as PW2. The first appellant examined herself as RW1. While
Exhibits A1 to A8 were marked on the side of the
respondent, through PW1 Doctor, Exhibit X1 case sheet was
also marked. Before the court below, there was a prayer
that the parties may be permitted to undergo a DNA finger
printing test. That prayer of the respondent herein was not
allowed, in view of the opposition of the first appellant.
7. The court below on an anxious consideration of
the relevant inputs came to the conclusion that the child
could not have been begotten on or after 13.12.1993 and
consequently, it was held that the presumption under
Section 112 of the Evidence Act will not be available in
favour of the appellants. Accordingly, the court proceeded
to pass the impugned order.
8. Before us, the learned counsel for the appellants
Mat.A.No.103/03 -5-
and the respondent have advanced their arguments. The
learned counsel for the appellants assails the impugned
order on the following three grounds.
(1). The court below must have held that the
petition filed by the respondent is barred by
limitation under Article 58 of the Indian Limitation
Act.
(2) The court below ought to have held that
declaration of illegitimacy cannot be claimed or
granted under explanation (e) to Section 7(1) of
the Family Courts Act.
(3) At any rate the court below erred grossly
in coming to the conclusion that the presumption
under Section 112 of the Evidence Act does not
apply and the same stands rebutted from the
simple fact that there was only a period of 209
days between 17.12.1993, the date from which
alone access could have been there and the date
Mat.A.No.103/03 -6-
of birth of the child, i.e., 13.7.1994.
8. We shall now proceed to the three grounds raised.
9. Ground No.1: The learned counsel for the
appellant contends that under Article 58 of the Limitation
Act, to obtain any declaration, not specified earlier, three
years is the period of limitation and such period of limitation
starts when the right to sue first accrues. The counsel
contends that if the appellant had any misgivings about the
legitimacy of the child, the same must have been in
existence on the date of birth of the child, i.e., 13.7.1994 or
at least on the date of divorce, i.e., 17.8.1995. The right to
sue must then be held to have accrued first at least on
17.8.1995. The proceedings have been initiated only in
2002 and in these circumstances, the prayer is barred by
limitation, it is contended.
10. The learned counsel for the respondent points out
that this is not a plea which was raised before the court
below or even before this Court in appeal. The counsel does
Mat.A.No.103/03 -7-
not dispute the proposition that plea of limitation can be
raised even when pleadings are not there specifically. There
can be no dispute on that proposition of law also. If the
facts duly proved or admitted, clearly show that the claim is
barred by limitation, notwithstanding the fact that the plea
had not earlier been raised, the court at any stage is entitled
to consider that plea. But, we find merit and accept the
contention of the learned counsel for the respondent that
the clock of limitation can start ticking only when the right to
sue first accrues. The question as to the date on which the
right to sue accrues is a question of fact. The relevant facts
have to be pleaded. Adversary must be given an
opportunity to know, understand and meet the plea of
limitation founded on a fact. Such a fact has to be pleaded.
In this case, the right to sue first accrued not on the date
when divorce was effected, but only on the date when the
respondent received Exhibit A5 reply dated 24.3.2001(in
reply to Exhibit A4 notice dated 20.2.2001) refusing to
Mat.A.No.103/03 -8-
reverse a relevant entry in the birth register showing him as
the father of the child. Till then there was no dispute on that
aspect. In this context, the counsel for the respondent
brings to the notice of the court Exhibit A2 agreement
executed between the parties on 16.8.2000, the recitals in
which clearly suggest that no dispute was raised even at
that point of time about the respondent’s responsibility for
the second child born on 13.7.1994. According to the
respondent’s counsel, the first appellant had accepted that
the respondent was not the father of the child.
11. We need only mention that the plea of limitation
now raised, founded on a specific fact was not pleaded and
the respondent did not have opportunity to join issue with
the appellants on that aspect and adduce evidence. That
being so, we are satisfied that the plea of limitation raised
now cannot be accepted. The challenge on Ground No.1
hence fails.
12. Ground No.2: The counsel for the appellants
Mat.A.No.103/03 -9-
contends that proceedings for declaration as to legitimacy of
any person alone can be taken cognizance of under
explanation (e) to Section 7(1). According to the learned
counsel for the appellants, in the instant case, what is
sought to be declared is not the legitimacy of the 2nd
appellant, but her illegitimacy. The counsel contends that
explanation (e) to Section 7(1) has to be construed strictly
and the same cannot take in any proceedings for declaration
of illegitimacy of any person. Hence, the very proceedings is
not maintainable before the Family Court, contends the
learned counsel for the appellants.
13. The learned counsel for the respondent on the
contrary contends that the expression “declaration as to the
legitimacy of any person” must necessarily include a
declaration as to illegitimacy of such person also. In
proceedings for declaration of legitimacy, the question
whether the person is legitimate or illegitimate will certainly
have to be considered and it would be idle to contend that
Mat.A.No.103/03 -10-
the parties will have to approach the ordinary civil court and
not the Family Court for a declaration of illegitimacy while a
declaration of legitimacy can be granted by the Family
Court. This contention does not stand to reason or logic,
contends the learned counsel for the respondent.
14. The learned counsel for the appellants points out
that it is now trite law that the declaration of illegitimacy
cannot be granted by a Family Court under Section 7(1)(e).
The counsel relied on two binding precedents in support of
this contention. He, first of all contends that the Hon’ble
Supreme Court in Renubala Moharana and another v.
Mina Mohanty and others (2004(4) SCC 215) in
paragraph 6 had made the following
observations/conclusions and that must show that a
proceedings for declaration of illegitimacy is not
maintainable under Section 7(1)(e).
“6. The view taken by the High Court as
regards the first prayer has been assailed before
Mat.A.No.103/03 -11-
us. Under Section 7(1) read with clause (e) of
the Explanation, a suit or proceeding for a
declaration “as to the legitimacy of any person”
is within the jurisdiction of the Family Court.
According to the appellants, the child was born
on account of extramarital relationship of
Respondent 1 with their son, the late Samuel
Maharana. Accepting the case of the appellants,
the child cannot obviously be treated as a
legitimate child of Samuel and Mina Mohanty (R-
1). The question of status of the child in relation
to the parties to the petition can be incidentally
gone into by the Family Court if necessary while
deciding the guardianship petition. That liberty
has been granted to the Family Court. However,
as rightly held by the Family Court and the High
Court, the declaratory relief as regards the
illegitimacy of the child cannot be granted. In
Mat.A.No.103/03 -12-
effect, that is what the appellants want under
prayer(a).” (emphasis supplied).
The learned counsel for the appellant further relies on the
decision in Bharat Kumar v.Selma Mini (2007(1)KLT
945) in which the dictum in Renubala is followed by a
Division Bench of this Court.
15. The learned counsel for the respondent submits
that it would be myopic to understand the decision in
Renubala as laying down the rigid proposition of law that
dispute regarding illegitimacy or otherwise of a child born
during the currency of a valid matrimony cannot be the
subject matter of a proceedings between the spouses under
explanation (e) to Section 7(1). The learned counsel for the
respondent points out that the decision in that case is valid
only for the proposition that declaration as to legitimacy or
illegitimacy of any person without any claim for marital
relationship is not entertainable by the Family Court, as such
a child born outside matrimony can never be legitimate. The
Mat.A.No.103/03 -13-
learned counsel contends that the facts in Renubala’s case
have to be alertly evaluated and assessed to correctly
understand the dictum laid down in Renubala’s case. In
this context, the counsel relied on paragraph 5 of
Renubala’s case to highlight the facts. He contends that
the Supreme Court in that case was concerned only with the
question as to whether declaration as to legitimacy of any
person without any claim of marital relationship is
entertainable by the Family Court. It will be totally
erroneous and puerile to conclude from the observations in
paragraph 6 that a dispute between the spouses as to
whether a child born in the matrimonial relationship
between the parties is legitimate or illegitimate would not be
maintainable under Section 7(1)(e). A declaration either
way can be sought by one of the spouses in respect of a
child born during the currency of such matrimony, contends
the learned counsel. To highlight this aspect, counsel relies
on the following observations in paragraph 5 in which the
Mat.A.No.103/03 -14-
precise challenge which the Supreme Court considered in
Renubala is highlighted.
“5. After trial, the Family Court, by its
judgment dated 2.5.2000 dismissed the petition
on the ground that the petition itself was not
maintainable in the light of Section 7 of the
Family Courts Act. As regards the prayer for
guardianship, the learned Judge observed that
Respondent 1 being the natural mother against
whom there was no adverse allegation, there
was no need to appoint any other person as
guardian. On appeal to the High Court, the
Division Bench of the High Court agreed with
the conclusion of the Family Court that the first
relief sought for by the appellants cannot be
granted by the Family Court for the reason that
declaration as to the legitimacy of any person
without any claim of marital relationship is not
Mat.A.No.103/03 -15-
directly entertainable by the Family Court. In
view of the admitted fact that Samuel
Maharana and Respondent 1 were not married,
the child allegedly born through Samuel
Maharana can never be a legitimate child.”
(emphasis supplied).
16. The learned counsel contends that the dictum in
Renubala is only that declaration under Section 7(1)(e) can
only be regarding legitimacy and in the admitted absence of
a marriage no declaration regarding legitimacy can be
granted. Legitimacy presupposes a valid marriage. In the
absence of a valid marriage, there can be no question of
legitimacy or otherwise at all. A child born admittedly
outside matrimony in the extra marital relationship between
the man and woman can never be legitimate. Dispute about
paternity between such man and woman is not a dispute
regarding legitimacy and such a mere dispute of paternity
between a man and woman not united in valid matrimony is
Mat.A.No.103/03 -16-
outside the sweep of Section 7(1)(e). This is all what
Renubala lays down, contends counsel. Renubala is not
authority for the proposition canvassed by the appellants’
counsel that a dispute between the spouses – validly
married admittedly, regarding legitimacy/illegitimacy of a
child born during such matrimony is beyond the
jurisdictional competence of the Family Court, urges the
learned counsel Shri E.S.M.Kabeer. We find merit in this
contention.
17. We extract Section 7 of the Family Courts Act
below:
“7. Jurisdiction:(1) Subject to the other provisions
of this Act, a Family Court shall –
(a) Have and exercise all the jurisdiction
exercisable by any district court or any
subordinate civil court under any law for the
time being in force in respect of suits and
proceedings of the nature referred to in the
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explanation; and
(b) Be deemed, for the purpose of exercising
such jurisdiction under such law, to be a
district court or, as the case may be, such
subordinate civil court for the area to which
the jurisdiction of the Family Court extends.
Explanation.- The suits and proceedings referred to
in this sub-section are suits and proceedings of the
following nature, namely:
(a) A suit or proceeding between the parties to a
marriage for a decree of nullity of marriage
(declaring the marriage to be null and void
or, as the case may be, annulling the
marriage) or restitution of conjugal rights or
judicial separation or dissolution of marriage;
(b) A suit or proceeding for a declaration as to
the validity of a marriage or as to the
matrimonial status of any person;
Mat.A.No.103/03 -18-
(c) A suit or proceeding between the parties to a
marriage with respect to the property of the
parties or of either of them;
(d) A suit or proceeding for an order or injunction
in circumstances arising out of a marital
relationship;
(e) A suit or proceeding for a declaration as to
the legitimacy of any person;
(f) A suit or proceeding for maintenance.
(g) A suit or proceeding in relation to the
guardianship of the person or the custody of,
or access to, any minor.
(2) Subject to the other provisions of this Act, a
Family Court shall also have and exercise-
(a) The jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and Mat.A.No.103/03 -19- parents) of the Code of Criminal Procedure, 1973(2 of 1974); and (b) Such other jurisdictions as may beconferred on it by any other enactment.”
(emphasis supplied)
18. The learned counsel for the appellants has then
placed reliance on the decision of a Division Bench of this
Court in Bharat Kumar v.Selma Mini and Another (2007
(1) KLT 945). In that decision, the earlier decision of the
Supreme Court in Renubala was considered and the dictum
was accepted. In paragraph 4 of Bharat Kumar’s case, the
dictum of the Supreme Court is understood by the Division
Bench as follows:
“It may also arise in situations covered by
explanation (g) of S.7(1), as held by the Supreme
Court in Renubala Moharana v.Mina Mohanty, 2004
KHC 778 : 2004(2) KLT SN 42: AIR 2004 SC 3500 :
2004 (110) DLT 521 : 2004(2) CHN 180 :
Mat.A.No.103/03 -20-
2004 (18) AIC 207(SC) : 2004 (4) SCC 215. It was
also held by the Supreme Court in the said decision
that the Family Court cannot entertain any
proceedings for declaration as to the legitimacy of
any person without any claim on marital relationship.
In the case before us the petitioner before the Family
Court, the first respondent herein, does not have a
case of marital relationship with the petitioner
herein. The case admittedly is of extra marital
relationship. The dispute is with regard to the
paternity of a child born in the said extra marital
relationship. That is not a matter falling within the
jurisdiction of the Family Court. Paternity of a child
can be gone into as incidental to a dispute on the
legitimacy arising only out of a claim on marital
relationship between the parties. Such a question
also may incidentally arise in deciding a guardianship
petition. No such situation arises in this case.”
Mat.A.No.103/03 -21-
19. We are persuaded to agree with the learned
counsel for the respondent that Bharat Kumar also
supports his contention only. Renubala was a case where
parents of Samuel, a deceased man, inter alia, sought a
declaration that the child born to respondents 1 and 2
(spouses) during their valid matrimony is not the child of the
second respondent/husband, but was that of Samuel, with
whom the first respondent wife had alleged illicit extra
marital relationship. Similarly, in Bharat Kumar’s case also
the woman and the child had sued for a declaration that
though the marital tie with the second respondent subsisted,
the first respondent in that case who had illicit relationship
with the woman during her valid matrimony with the 2nd
respondent was the father of the child. What is crucial to
note is that a declaration of legitimacy can be granted only
when there is admitted matrimonial relationship. Where
matrimonial relationship is not there between the
contestants, the dispute can be only about paternity and not
Mat.A.No.103/03 -22-
legitimacy. Section 7(1)(e) of the Family Courts Act does not
cover a dispute regarding paternity by itself. It covers only a
dispute regarding legitimacy of a child born. It is in that
context that both the cases – Renubala and Bharat
Kumar, took the view that it is essential that there must be
a matrimonial relationship to attract explanation (e) to
Section 7(1). It will be interesting to note the very question
framed for consideration in Bharat Kumar’s case in
paragraph 1, which reads as follows:
” Whether paternity of the child is an issue to be
considered by the Family Court under S.7(1)(e) of
the Family Court Act, 1984, without a matrimonial
cause, is the question to be considered in this
case.”
The dictum in Renubala and Bharat Kumar properly
understood, according to us is only that a mere dispute
about paternity where there is admittedly no matrimony
between the mother and the alleged father is not one that
Mat.A.No.103/03 -23-
can be entertained under Section 7(1)(e). Existence of valid
matrimony is sine qua non for jurisdiction to entertain a
proceedings under Section 7(1)(e) of the Family Courts Act.
When admittedly there is no matrimony, there can be no
question of legitimacy and in such a situation no relief under
Section 7(1)(e) can be granted. That and that alone, it
appears to us, is the dictum laid down in the two decisions.
At least, it is evident that the Division Bench in Bharat
Kumar understood the dictum in Renubala thus. We are in
total and complete agreement with the view taken by the
Diviison Bench in Bharat Kumar on the interpretation of
the dictum in Renubala.
20. In these circumstances we take the view that the
dispute between the first appellant and the respondent
about the legitimacy/illegitimacy of the second appellant
born admittedly during the subsistence of the marital tie is a
dispute which can be taken cognizance of and adjudicated
under Section 7(1)(e) of the Family Courts Act. We take the
Mat.A.No.103/03 -24-
view that a declaration of not only legitimacy but also
illegitimacy of a child born to the mother can be granted
under Section 7(1)(e), provided the disputants have a claim
to be legally wedded and the fact that they are legally
married is admitted or proved. We reckon Renubala and
Bharat Kumar as authorities only for the proposition that a
mere declaration of paternity, when there is admittedly no
valid matrimony between the father and mother is outside
the sweep of Section 7(1)(e) of the Family Courts Act. The
challenge raised on Ground No.2 must hence fail.
21. Ground No.3. That takes us perhaps to the most
crucial and relevant ground raised by the appellants. It will
be only apposite for us to refer to Section 4 of the Evidence
Act, which speaks about conclusive presumptions and their
impact and play. We extract the definition of conclusive
proof in Section 4 of the Evidence Act.
“4. Conclusive proof.- When one fact is declared
by this Act to be conclusive proof of another, the
Mat.A.No.103/03 -25-
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.”
22. We shall now consider Section 112 of the Evidence
Act which enacts the conclusive presumption regarding the
legitimacy of a child born during the subsistence of marriage
and 280 days thereafter. It reads as follows:
“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.” (emphasis supplied)
Mat.A.No.103/03 -26-
23. The advent of science and technology, it is now
trite, makes it possible to authentically ascertain whether a
person is or is not the biological father of a child. Section
112 was enacted at a time when the advantage of science
and technology on this aspect was not available. In the
interests of the health, order and peace in society, certain
axiomatic presumptions had to be drawn. The conclusive
presumption of paternity under Section 112 of the Evidence
Act is one such presumption. That a child born in valid
matrimony is the child of the legally wedded husband of the
woman who gives birth to the child was thus presumed
conclusively under Section 112 of the Evidence Act. The
proof of one fact alone could rebut the said presumption and
that is non-access between the spouses. Precedents galore
to show that sufficient, clinching and conclusive proof must
be made available of such non-access to rebut the
presumption under Section 112. Consequence of not
drawing the presumption and permitting the rebuttal of the
Mat.A.No.103/03 -27-
presumption is to bastardise a child born during valid
matrimony and that explains why the law leans in favour of
the presumption of legitimacy when the child is born during
matrimony or 280 days thereafter, the wife remaining
unmarried.
24. An analysis of the provisions of Section 112 clearly
shows that the presumption is available if it is simply shown
that there was a valid marriage and the child was born
thereafter till termination of the marriage or 280 days
thereafter. It is not as though the presumption is not
available if the child is born on the first day or the first week
or the first month after marriage. The presumption literally
applies if the child is born at any time after the marriage and
before the elapse of 280 days from the termination of
marriage, the mother remaining unmarried. The expression,
“mother remaining unmarried” is according to us crucial,
because the law appears to have assumed that if the mother
re-marries and the birth of the child is thereafter, the
Mat.A.No.103/03 -28-
presumption of legitimacy under Section 112 can apply not
to the previous husband, but to the husband legally married
to her before the birth of the child. That is the only manner
in which Section 112 can be understood. The presumption
of legitimacy applies even if the child is born immediately
after marriage, unless non-access to each other at the time
when the child could have been begotten is proved. It is
crucial that there is no exclusion under Section 112 of any
initial period of matrimony to attract the conclusive
presumption. The conclusive presumption under Section
112 read with Section 4 comes into play from the date of
marriage. The legislature which extended the period of
operation of the presumption by 280 days after dissolution
of marriage did not, it is significant choose to exclude any
minimum initial period of matrimony for the application of
the presumption.
25. Even for a child born immediately after marriage,
presumption of legitimacy under Section 112 would apply.
Mat.A.No.103/03 -29-
But the same can be rebutted by showing that prior to the
marriage there was no possibility of access between the
spouses.
26. The existence of the presumption for a further
period of 280 days after the dissolution of marriage subject
only to the condition that the mother has remained
unmarried, does also show that the presumption is to apply
so long as the marriage is subsisting and for 280 days
thereafter. The period of 280 days is fixed obviously
because the law presumes safely that a child is not likely to
remain in the womb at any rate beyond 280 days. It would
be idle to conclude that law assumed that 280 days is the
minimum period of gestation for ascertaining the time when
the child “could have been begotten” under Section 112.
27. We now come back to the facts of the case. The
child was admittedly born during the subsistence of the
matrimony which remained from 24.6.1985 to 17.8.1995.
The child was born on 13.7.1994. The presumption under
Mat.A.No.103/03 -30-
Section 112 must hence squarely apply. The only question
is whether non-access of the spouses to each other is proved
at any time when the child could have been begotten.
28. That takes us to the question as to when the child
could have been begotten. Notwithstanding the valiant
efforts of the first appellant, it is now evident that they could
not have had access to each other prior to 17.12.1993.
From 17.12.1993, the spouses had access to each other. It
is submitted that the respondent/husband had returned to
his place of employment on 1.2.1994. From 17.12.1993 to
1.2.1994 spouses had opportunity for access and did
admittedly have access. The wife had conceived and the
husband appears to have been under the impression,
without any doubt, that it was his own child. Only after the
child was born on 13.7.1994, does he appear to have
entertained reservations about the legitimacy of the child or
his responsibility for the conception.
29. Could the child born on 13.7.1994 have been
Mat.A.No.103/03 -31-
begotten on and after 17.12.1993 is the only question that
remains for consideration. The burden, undoubtedly, is on
the respondent to show that the child could not have been
begotten on account of the access/intercourse on and after
17.12.1993. That burden rests squarely on the shoulders of
the respondent.
30. Has he discharged the burden? We have evidence
to show that it was a normal delivery. But was the child a
full grown child or not? There is no specific evidence either
way. PW1 was examined. Exhibits A1, A1(a) and X1 have
been pressed into service. Exhibit A1 and A1(a) definitely
support the case of the first appellant. Those documents
show that LMP was on the 27th of December, 1993. On
4.2.1994 when the first appellant was examined by PW1, the
prescription shows that the foetus was 14 weeks old and on
28.5.1994 when the first appellant was examined by PW1,
the foetus was 20 weeks old. These entries in Exhibits A1
and A1(a) are absolutely consistent with the first appellant’s
Mat.A.No.103/03 -32-
case that she had conceived on account of the intercourse
on and after 17.12.1993. The evidence of PW1 suggests
that assessment of age of the foetus clinically (as shown in
Exhibits A and A1(a)) can vary for a period of three weeks.
31. It is significant that not one question was put to
PW1 that the child (2nd appellant) could not have been
begotten/conceived on account of the access/intercourse on
and after 17.12.1993. That to our mind is crucial. It is
unquestionable that the burden must rest heavily on the
shoulders of the respondent to show that the child born on
13.7.1994 as per Exhibit X1, though in a normal delivery
could not have been begotten from the intercourse/access
on or after 17.12.1993. We have gone through the evidence
of PW1 and Exhibits A1, A1(a) and X1 and all other evidence.
There is absence of any semblance of evidence to establish
conclusively that the child born after a normal delivery at
the Hospital on 13.7.1994 going by its features perceived by
PW1 and others could not have been begotten as a result of
Mat.A.No.103/03 -33-
intercourse/access on or after 17.12.1993. For that simple
reason, the appeal must succeed and the proceedings
initiated by the respondent must necessarily fail.
32. When could the child have been begotten? How
many days must elapse between the date of conception and
a normal delivery of the child? It appears to be difficult to
specify any definite period. Courts had occasion to consider
the very same question earlier several times. We may
advantageously refer to paragraph 11 of the judgment of the
Supreme Court in Dukhtar Jahan v. Mohammed Farooq
(1987 (1) SCC 624).
“11. Examining the matter, we feel the learned
Judge has failed to view the case in its entire
conspectus and this has led to miscarriage of
justice. On the sole ground that the child had
been born in about 7 months’ time after the
marriage it cannot be concluded that the child
should have been conceived even before the
Mat.A.No.103/03 -34-
respondent had consummated the marriage.
Giving birth to a viable child after 28 weeks’
duration of pregnancy is not biologically an
improbable or impossible event. In “Combined
Textbook of Obsterics and Gynaecology” by Sir
Gugald Baird 7th edn. At page 162 it is reported as
under:
In the case of Clark v. Clark, (1939)
P.228 an extremely small baby, born
alive 174 days after last possible date
when intercourse with the husband could
have taken place, and which survived,
was held to be legitimate. While it is
most unusual for babies of this weight or
gestation period to survive it does
occasionally happen.
The learned Judge ought not, therefore, to have
rushed to the conclusion that a child born in about
Mat.A.No.103/03 -35-
7 months’ time after the marriage of the parents
should have necessarily been conceived even
before the marriage took place. Insofar as the
second aspect is concerned, viz. about the
appellant’s statement that the child was not born
prematurely, the High Court has failed to bear in
mind that the appellant is a rustic and illiterate
woman and as such her opinion could suffer from
error of judgment.”
33. The wife did not agree for the DNA test. This
circumstance is used against her to contend that an adverse
inference must be drawn. The DNA test is an authentic test
and hence her failure to take that test must persuade the
Court to draw an adverse inference against her. In the light
of the giant leaps which science and technology have made
in the area/zone of identification of the biological father, the
presumption under Section 112 can be criticised as
anachronistic. The presumption under Section 112 may be
Mat.A.No.103/03 -36-
shivering in its shoes. The legislature may intervene on a
later date and modify the presumption under Section 112
and make it only one of the ‘may presume’ or ‘shall
presume’ variety under Section 4 of the Evidence Act. It
may not continue for a long time as a conclusive
presumption. But that is the domain or realm of legislation.
At what point of time in the development of a society, and
its scientific and technological capabilities that presumption
can be dispensed with or rigour of that presumption can be
reduced is certainly to be considered by the legislature and
not by a court interpreting a legislation. We must alertly
note that there is no challenge before us against the
constitutionality of Section 112 on the anvil of Articles 14
and 21 of the Constitution on the ground that the statutory
stipulation is not fair, just and reasonable and is arbitrary,
capricious, unjust and oppressive. In the post Maneka
Gandhi era such a challenge does not appear to be
impossible. We need only say that such a challenge is not
Mat.A.No.103/03 -37-
raised before us or considered by us. As the law now stands
in a case where Section 112 applies and non-access is not
pleaded and proved, even a negative DNA test report cannot
help to rebut the presumption drawn under Section 112 of
the Evidence Act. The unwillingness by the wife to undergo
the DNA test cannot hence tilt the scales against her.
34. We need not repeat the anxiety of the courts to
avoid bastardisation of children born in valid matrimony
unless there be convincing and compelling reasons. We are
unable to find any such compelling and convincing reasons
in the case. Of course, it may not be inapposite to note that
some doubts are raised in the mind of the court about the
attitude/stand of the spouses about the paternity/ legitimacy
of the child. We say so because Exhibit A2 divorce deed is
significantly silent about the second child born on 13.7.1994.
But that dissatisfaction/inadequacy is certainly insufficient
to dislodge or rebut the conclusive presumption available
Mat.A.No.103/03 -38-
under Section 112 as defined under Section 4 of the
Evidence Act. Lingering vague doubts in the mind of the
courts are not sufficient to dislodge the presumption under
Section 112. For the reason that it has not been established
that the child could not have been begotten on account of
the relationship between spouses on and after 17.12.1993,
this appeal is to succeed and the prayer of the respondent
must be rejected.
35. In the result,
(a) this appeal is allowed.
(b) the impugned order passed by the Family
Court is set aside.
(c) the parties shall suffer their respective costs.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn