Ahilandathammal vs Kathayya Konar

Venkatadri, J.—This appeal arises out of proceedings initiated by respondent (husband) under the Hindu Marriage Act for divorce of the

appellant, on the ground that she had been living in adultery and that the child born to her was as a result of adulterous intercourse. The learned

Subordinate Judge dismissed the application, on the ground that the respondent had failed to prove that the appellant was living in adultery. But on

appeal preferred by the respondent, the learned District Judge held that, though the respondent was not entitled to a decree for divorce, he would

be entitled to a decree for judicial separation, on the ground that the appellant conceived and gave birth to a child as a result of sexual intercourse

with some other person other than the husband. It is against this judgment and decree, the wife has preferred the present second appeal. It is

necessary to state a few facts for a satisfactory disposal of this case. The respondent is a resident of Srirangam. He is also possessed of some

immoveable property and a garden. He is also doing milk business. He has two sons by his deceased first wife. He married the appellant in the

year 1957. At the time of marriage, the appellant was aged 15 years and the respondent was aged 46. The appellant is a poor lady, her father

being a watchman in the Srirangam temple. The sons of the respondent-husband by the first wife did not like their father marrying a second time,

and on that account, there were misunderstandings between the father and the sons. On account of the frequent quarrels in the family between the

father and the sons, the appellant stayed only for a short time in her husband''s house. She was, therefore, residing in her parents'' house in the next

street. The respondent was having a cattle shed opposite the house of the appellant. Originally, the respondent himself started proceedings for

restitution of conjugal rights. But he did not pursue it, with the result that application was dismissed. It is the case of the appellant that the

respondent, after the dismissal of that application, used to visit her in her parents'' house frequently. It was at that time the appellant became

pregnant and gave birth to the child in a hospital. It is only after the birth of the child, the respondent started proceedings that the appellant was

living in adultery and that the child born to her did not belong to him. Before the learned Subordinate judge, the respondent admitted that he did not

complain at any time that the appellant''s conduct was immoral or bad. He had never seen her going from his house during night time and he had

never seen her going with any man or talking to any man. He also admitted that none of his relations or castemen ever told him that her conduct

was bad or immoral. On the other hand, evidence has been adduced by the appellant that the respondent used to visit her in her parents'' house.

R.W. 2 and R.W. 4 have also given evidence that they have often seen the respondent going to the appellant''s house during night time.

The learned District Judge rightly observed that the burden of proof undoubtedly lay on the respondent to establish non-access, but committed

an error in observing that the matter had got to be decided on probabilities. He ordered judicial separation on the ground that the husband had

established non-access to his wife and that the child was born as a result of sexual intercourse by the wife with some other person.

The crucial question for consideration is whether the respondent had established non-access to his wife. When the appellant gave birth to the

child, she was living just next street to the respondent. The child was born during wedlock. It is settled law that every child born of a married

woman during the subsistence of the marriage is prima facie legitimate. In every case, the husband and wife must have had opportunities of access

to each other during the period in which the child could be begotten and born in the course of nature and they must not be proved to be impotent.

The presumption, however, is not a presumption juris et de jure which cannot be rebutted, but a presumption only which may be rebutted by

evidence of circumstances proving the contrary and such evidence must not be slight in its nature, but strong and satisfactory. See Halsbury''s Laws

of England, 3rd Vol., 3rd Edn. page 87, para 139. The causes of adulterous bastardy are reduced to two (i) the impotence of the husband and (ii)

the absence of sexual intercourse between the husband and wife when the period of wife''s gestation commenced. The general rule of law or

presumption in favour of legitimacy being so strong, the evidence to disprove the existence of sexual intercourse between the husband and the wife

is necessarily to be conclusive. The repudiation of the child by the husband or his disinheriting the child on the ground that he was not its father

does not constitute the child a bastard. The Court is not concerned in cases of this nature with the question of the probability or improbability of the

legitimacy of the child but with the question of the impossibility alone. In one of the earliest cases in England one of the Judges observed that

although the woman eloped from her husband and remained with her adulterer, yet the son was legitimate and should inherit, unless the other party

could show some special matter i.e., an impossibility of access from which the child could be the off spring of its pretended parent. Legitimacy has

always been made to depend upon the single fact, whether possible or impossible and not whether probable or improbable. King v. Luffa 8 East

202 is authority for the view that the law requires, before a person is deprived of that which is his birth-right when he is born in marriage, that an

absolute natural conclusive impossibility should be made out by the other side. In Routledge v. Carruthers (decision of Scottish Government

Extracts at page 344 and 345 of the Report of Proceedings of the House of Lords) on the claim to the Baron of Gardner. By Devis Le Merchant,

1828 Lord Craig observed:

I have no doubt of this child''s legitimacy. That her mother was a bad woman and was on many occasions guilty of adultery is certain; but on the

other hand, it is perfectly clear that this lady must be held to have been the lawful and legitimate daughter of her parents. The maxim pater est quern

nutioe demonstrant is founded on reason and expediency, and in this case, however great may have been the guilt of the mother, however uncertain

it may be who was the real father, still at the time the child was begotten the parents were married, and there was no defect stated, no physical

impossibility from distance or otherwise, of the husband being the father. It is said that the father was away from home some forty or fifty miles. It

is not stated when he went away or when he returned, and therefore, it is clear in law, in reason and in expediency, that this child must be held to

be legitimate.

As far as the Indian Courts are concerned, they adopt the rule of presumption which is incorporated in S. 112 of the Indian Evidence Act and

which contemplates 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 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-See Karapaya v. Mayandi 66 M.L.J.

288=39 L.W. 244 (P.C.). It is also equally settled that non-access could be established not merely by positive or direct evidence but also by

direct or circumstantial evidence, but it is necessary that the proof of non-access must be clear and satisfactory, Venkateswarlu v.

Venkatanarayana (1954) 1 M.L.J. 152 (S.C.). Venkatasubba Rao, J. in Sivakami Ammal v. Koolyandi Chettiar 66 M.L.J. 283 has observed that

the effect of S. 112 is that there is a presumption and a very strong one, though a rebuttable one, that the child born in lawful wedlock is the

legitimate child of its mother''s husband. When once access or intercourse by the husband is proved, no evidence will be allowed to show that the

child is not the child of the husband, that is to say, the presumption to be drawn becomes an irrebuttable one.

Bearing these principles in mind, I have to consider whether the respondent has discharged the burden of proof that the child born to the

appellant is not his child. It is admitted that the child was born during wedlock. It is seen that at the time of the child was born the appellant was

living in her parent''s house.

There is also evidence to show that the respondent was visiting his wife at that house. There is no evidence to show that the husband is

incapacitated from procreating any children. The distance between the house of the respondent and the house of the appellant is very small.

Therefore we cannot rule out the possibility of the husband having access to the appellant. I am satisfied that there is not sufficient evidence to

prove that the child was not born to the respondent and that it was born as a result of wife''s intercourse with a stranger. There is no evidence on

the record to show that the appellant was of doubtful character. Once I come to the conclusion that the child was not born as a result of adulterous

intercourse by the wife with a stranger, then the respondent will not be entitled to a decree granting judicial separation. In the result, the appeal is

allowed. There will be no order as to costs. No leave. Memorandum of objections dismissed. No costs.