http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

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.