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CASE NO.: Appeal (civil) 3860  of  2001

PETITIONER: SMT. KAMTI DEVI & ANR.

       Vs.

RESPONDENT: POSHI RAM                                                                               RESP ONDENT

DATE OF JUDGMENT:       11/05/2001

BENCH: K.T.Thomas & R.P. Sethi

JUDGMENT:

THOMAS, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   What  is the standard of proof required to displace  the conclusive  presumption  in favour of paternity of  a  child born  during  the  subsistence of a valid marriage?   Is  it necessary that non-access should be proved beyond reasonable doubt,  or  would  it  be  sufficient   to  prove  it  by  a preponderance  of probabilities?  The maxim Pater est  quem nuptiae  demonstrant  (The father is he, whom the  nuptials indicate)  has gained a sturdy legislative recognition which resulted  in  the  formulation  of   the  rule  of  evidence envisaged in Section 112 of the Evidence Act (for short the Act).   It is based on the English rule that the child  born in the wedlock should be treated as the child of the man who was  then the husband of its mother.  Its only exception  is when the husband proves that he had no access to his wife at the  time  of conception of that child.  Section 112 of  the Act reads thus:

   Birth  during marriage, conclusive proof of legitimacy. -  The fact that any person was born during the  continuance of  a  valid  marriage between his mother and  any  man,  or within  two  hundred and eighty days after its  dissolution, the  mother  remaining unmarried, shall be conclusive  proof that  he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

   The  Section  when  stretched to its widest  compass  is capable  of  encompassing even the birth of a child  on  the next   day  of  a  valid   marriage  within  the  range   of conclusiveness  regarding  the  paternity  of  its  mothers husband,  but  it excludes the birth happened just  one  day after  the period of 280 days elapsing from the date of  the dissolution  of  that marriage.  The question regarding  the standard  of proof for disrupting the conclusiveness of  the presumption  has been mooted before us as a Single Judge  of

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the High Court of Himachal Pradesh refused to interfere in a second  appeal with a finding recorded by the District Judge in   a  first  appeal   that  the  respondent-plaintiff  has discharged   his  burden  of   proof  and  consequently  the presumption stood rebutted.  The facts which led to the said finding are the following:

   The marriage between appellant Kamti Devi and respondent Poshi  Ram  was  solemnised in the year  1975.   For  almost fifteen  years thereafter Kamti Devi remained childless  and on  4.9.1989  she  gave birth to a male child (his  name  is Roshan  Lal).   The  long period in between  was  marked  by internecine  legal  battles in which the spouses engaged  as against  each  other.  Soon after the birth of the child  it was  sought to be recorded in the Register under the Births, Deaths  and  Marriages Registration Act.  Then  the  husband filed a civil suit for a decree declaring that he is not the father  of  the child, as he had no access to the  appellant Kamti  Devi during the period when the child would have been begotten.

   The trial court, on the basis of admitted facts that the parties  are  spouses  of  a valid  marriage  and  that  the marriage subsisted on the date of birth of the child, relied on  the  conclusive presumption mentioned in Section 112  of the  Act.   The  trial court further held that  the  husband failed to prove that he has no access to his wife Kamti Devi during  the  relevant  period.   Accordingly  the  suit  was dismissed.

   But  the first appellate court, after re-evaluating  the entire  evidence, found that the husband plaintiff succeeded in  discharging the burden for rebutting the presumption  by proving  that  he had no access to the mother of  the  child during  a  very long stretch of time covering  the  relevant period.   On  the  strength of the said  finding  the  first appellate  court  allowed  the appeal and decreed  the  suit declaring  that the plaintiff is not the father of the child Roshan  Lal.   The High Court refused to interfere with  the aforesaid  finding in the second appeal on the premise  that the question whether Roshan Lal is the son of the plaintiff is  a pure question of fact which calls for no  interference by  the Court in the second appeal under Section 100 of  the Code of Civil Procedure.

   Learned   counsel   for  the    appellant   raised   two contentions.  First is that the District Court went wrong in relying on the interested evidence of the plaintiff.  Second is that the High Court failed in formulating the substantial question  of  law  involved in this case as to  whether  the burden  of  a  husband- plaintiff (to prove that he  had  no access to his wife) is as heavy as the burden of prosecution in a criminal case to prove the guilt of the accused.

   Earlier  there was a controversy as to what is the  true import of the word access in Section 112 of the Act.  Some High Courts held that access means actual sexual intercourse between  the  spouses.  However, the controversy came  to  a rest  when  the privy Council held in Karapvya  Severai  vs. Mayandi  (AIR  1934 PC 49) that the word  access  connotes only  existence of opportunity for marital intercourse.  The said  legal  principle gained approval of this Court when  a three  judge  bench  had held  Chilukuri  Venkateswarlu  vs. Chilukuri  Venkatanarayana  (1954 SCR 424) that the law  has been correctly laid down therein.

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   When the legislature chose to employ the expression that a  certain fact shall be conclusive proof of another fact, normally  the  parties  are disabled  from  disrupting  such proof.   This  can be discerned from the definition  of  the expression conclusive presumption in Section 4 of the Act. Conclusive  proof.  -When one fact is declared by this  Act to be conclusive proof of another, the Court shall, on proof of  the one fact, regard the other as proved, and shall  not allow  evidence  to be given for the purpose  of  disproving it.

   But  Section 112 itself provides an outlet to the  party who  wants to escape from the rigour of that conclusiveness. The  said outlet is, if it can be shown that the parties had no  access  to each other at the time when the  child  could have  been  begotten the presumption could be rebutted.   In other   words,  the  party  who   wants  to   dislodge   the conclusiveness has the burden to show a negative, not merely that  he  did not have the opportunity to approach his  wife but that she too did not have the opportunity of approaching him  during  the  relevant  time.   Normally,  the  rule  of evidence  in  other instances is that the burden is  on  the party  who  asserts the positive, but in this  instance  the burden  is  cast on the party who pleads the negative.   The raison   detre   is  the    legislative   concern   against illegitimatizing  a  child.  It is a sublime  public  policy that children should not suffer social disability on account of the laches or lapses of parents.

   We may remember that Section 112 of the Evidence Act was enacted  at  a time when the modern scientific  advancements with  Dioxy  Nucleic Acid (DNA) as well as Ribonucleic  Acid (RNA)   tests  were  not  even   in  contemplation  of   the legislature.  The result of a genuine DNA test is said to be scientifically  accurate.   But even that is not  enough  to escape  from  the conclusiveness of Section 112 of the  Act, e.g.   if a husband and wife were living together during the time  of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain  unrebuttable.  This may look hard from the point  of view  of  the  husband who would be compelled  to  bear  the fatherhood of a child of which he may be innocent.  But even in such a case the law leans in favour of the innocent child from  being  bastardized if his mother and her  spouse  were living  together  during the time of conception.  Hence  the question  regarding  the degree of proof of  non-access  for rebutting  the conclusiveness must be answered in the  light of  what  is  meant by access or  non-access  as  delineated above.

   Whether  the  burden  on the husband is as hard  as  the prosecution  to  prove the guilt of the accused in  a  trial deserves  consideration  in  the   above  background.    The standard  of proof of prosecution to prove the guilt  beyond any  reasonable  doubt  belongs  to  criminal  jurisprudence whereas  the test of preponderance of probabilities  belongs to  civil  cases.  The reason for insisting on proof  beyond reasonable  doubt  in  criminal cases is  to  guard  against innocent  being convicted and sent to jail if not to extreme penalty  of death.  It would be too hard if that standard is imported  in a civil case for a husband to prove non- access as  the  very concept of non-access is negative  in  nature. But   at  the  same  time   the  test  of  preponderance  of probability  is too light as that might expose many children

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to  the peril of being illegitimatised.  If a court declares that  the  husband  is not the father of his  wifes  child, without  tracing  out  its real father the fall out  on  the child  is  ruinous apart from all the ignominy visiting  his mother.   The  bastardized  child, when grows  up  would  be socially  ostracised and can easily fall into wayward  life. Hence,  by way of abundant caution and as a matter of public policy,   law  cannot  afford  to  allow  such   consequence befalling  an  innocent  child  on the strength  of  a  mere tilting of probability.  Its corollary is that the burden of the  plaintiff-husband should be higher than the standard of preponderance  of  probabilities.  The standard of proof  in such  cases must at least be of a degree in between the  two as  to  ensure  that there was no possibility of  the  child being conceived through the plaintiff-husband.

   In  Goutam Kundu vs.  State of West Bengal {1993(3)  SCC 418} this Court after considering an early three-Judge Bench decision  in  Smt.   Dukhtar   Jahan  vs.   Mohammed  Farooq {1987(1)  SCC  624} held that this presumption can only  be displaced  by a strong preponderance of evidence, and not by a mere balance of probabilities.

   In  the present case the first appellate court, which is the  final  fact finding court, after evaluating the  entire evidence, came to the following conclusion:

   In  the present case the plaintiff has examined all the evidence  which  he possibly could do in the  circumstances. He  has proved by convincing evidence, that he did not visit his  village  or house where the defendant was allotted  one room.   He has further proved that the defendant also  never visited  him at Mandi where he had been living for more than 2  year  before the child was born to Kamti Devi.  In  other words he has proved that he had no access or opportunity for sexual  intercourse  with defendant No.1 for more  than  280 days  before Roahan Lal (defendant No.2) was begotten by the defendant No.1

   The  said conclusion was reached on the strength of  the evidence adduced by both sides and the first appellate court was  satisfied in a full measure that the  plaintiff-husband had  no  opportunity  whatsoever to have  liaison  with  the defendant  mother.   The finding thus reached by  the  first appellate court cannot be interfered with in a second appeal as  no substantial question of law would have flowed out  of such a finding.

   In the result we dismiss this appeal.