M. Kumaran vs Kum. Reshma

R.G. Vaidyanatha, J.—This is a plaintiff''s appeal against the judgment and decree dated 15th October, 1984 in Suit No. 1849/78 on the file of City Civil Court Bombay. I have heard the learned Counsel for the Appellant. The Respondents and Counsel absent.

The Appellant filed a suit in the trial court for declaration that the Respondents/defendants are not his children. His case in brief is that he was married to defendants mother Premavalli on 17th May, 1964. After marriage they were residing together for few years. It is alleged that the wife Premavalli had illicit relationship with one Radhakrishnan, who was living in the same house and who is a close relative of the parties. After coming to know of the illicit relationship and adulterous conduct on the part of the wife, the plaintiff filed a petition No. 4805/70 against his wife and obtained a decree for divorce on the ground of adultery dated 14.7.1971. Premavalli then filed a criminal case for maintenance and also a Civil Suit for maintenance on behalf of the minor in the Courts in Kerala. Though the plaintiff contested those proceedings, his objections are overruled. In view of the orders passed in those cases, the plaintiff is being harassed. According to the plaintiff, the respondents are not born to him. Hence, the suit is filed for a declaration that the defendants are not his children born to his wife Premavalli out of the wedlock and they are not entitled to claim any maintenance from him.

The Defendants contested the suit by filing a written statement. The defendants being minors they are represented by their guardian and mother Premavalli. The allegations of adultery and immorality on the part of Premavalli are denied. It is stated that the divorce decree was an exparte decree and she could not contest the suit due to fraud played by plaintiff''s brother. It is stated that the defendants are born to the plaintiff and Premavalli. Then there is reference to proceedings taken by the defendants in the Court at Kerala for maintenance. That the suit is barred by principle of res judicata; that this Court has no jurisdiction to try this suit. That the suit is barred by limitation. That the plaintiff had sought for custody of the children in the Divorce Petition. Hence, it is prayed that the suit be dismissed with costs.

The Trial Court framed the following issues:-

(1) Whether the suit is not maintainable for the reason that the mother of the Defendants has not been joined as party Defendant to the suit.

(2) Whether the plaintiff proves that the Defendants Nos. 1 and 2 are not his children born out of the wedlock with their mother Premavalli.

(3) Is the Plaintiff entitled to the declaration sought?

The trial Court held that the suit is maintainable on issue No. 1. Issue No. 2 was answered in the negative. Accordingly, the suit came to be dismissed with a direction to .the plaintiff to pay exemplary costs of Rs. 500/-. Being aggrieved by the judgment and decree of the trial court, the original plaintiff has come up in appeal.

The learned Counsel for the Appellant has questioned the correctness and legality of the impugned judgment. It was argued that in view of the decree in divorce case on the ground of adultery and the evidence of the plaintiff, the plaintiff has proved that the Respondents are not his children. He also commented on the non-examination of the defendants'' mother Premavalli to rebut the evidence of the plaintiff. It was, therefore, submitted that the evidence on record is sufficient to hold that the respondents are not children of the plaintiff and the finding to the contrary given by the trial court is liable to be set aside.

The short point for consideration is whether the appellant has proved that the Respondents are not his children.

The marriage between the Appellant and Premavalli is admitted. The marriage took place on 7.5.1964. Admittedly, the plaintiff and Premavalli were living together till 1968 or 1969. The first child was born on 2.8.1965 namely the first defendant. The second child namely the second defendant was born on 27.12.1967. That means both the children are born when Plaintiff and Premavalli were residing together under a single roof at Bombay at the relevant time. To such a situation Section 112 of the Evidence Act is attracted. Section 112 of the Evidence Act reads as follows;-

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 clearly provides for a conclusive proof when children are born during the continuance of the valid marriage or within 280 days after the dissolution of the marriage. The only exception is that if it is shown that the husband had no access or the parties to the marriage had no access to each other at any time when the children could have been begotten, the children arc not born to the husband. Therefore, we have a conclusive presumption in favour of the legitimacy of the children subject to only one exception which the plaintiff has to prove. The plaintiff has to show that he had no access with the wife at any time when the children could have been begotten.

The only evidence on record is that of the plaintiff who was examined as P.W. 1 in the Court below. He has asserted that his wife was having illicit relationship with one Radhakrishna. He says that the children are not born to him. In cross/examination he was shown three photographs Exh. 1 Exh. 2 and Exh. 3. He admits that he and the children are in all the three photographs. When Exh. 1 was shown, he says that he recognised his first child in that photograph. Then in Exh. 2 he says that he identifies all the persons including his children. I have perused three photographs. In two photographs the plaintiff himself is carrying his children. If the plaintiff has any doubt about the parentage of the children, he could not have carried the children. He admits that during the period from 1964 to 1968, he and his wife were residing in the same house and sleeping in the kitchen. This clearly shows that he had access to his wife during the relevant time. Then what is more, after 1968, he along with his two children and wife left King Circle and shifted to Ghatkopar.

The learned Counsel for the appellant laid much emphasis on the judgment for divorce obtained by the plaintiff on the ground of adultery. A copy of the judgment and copy of the petition, arc marked Exh. A collectively, which show one thing that it is an exparte judgment. Wife had not contested the proceedings, for which she has now offered an explanation in the written statement stating that she did not contest the proceedings due to fraud played by plaintiff''s brother of course, in this proceeding, we cannot consider the correctness of an exparte judgment. The judgment no doubt shows that the decree has been granted on the ground of adultery. The divorce decree was based on the basis of divorce petition filed by the plaintiff. In the petition, which is a part of Exh.A the plaintiff has alleged that the wife has developed illicit relation with one Radhakrishan. Then as far as children are concerned he does not say that the children are not born to him. Thus what is pleaded in the last sentence of para 10 of the Divorce Petition which reads as follows: -

The Petitioner is only the name sake and suspected seriously whether the children belonging to the petitioner.

Therefore even as late as in 1970 the Petitioner had only some doubt or some suspicion that the children did not belong to him. Then what is more we find that in the prayer column the petitioner has sought the interim custody of the children. It is also shown that the petitioner did not dispute the parentage of the children even in 1970.

In view of the legal presumption available in Section 112 of the Evidence Act the burden is on the petitioner to show that he had no access to the wife. But the evidence on record and the admissions of the plaintiff show that he and the wife were living under the same roof and sleeping together in the kitchen of the house till 1968. Then we have the plaintiffs admission in cross-examination about the three photographs Exh. 1 to Exh. 3. Then we have a statement in the divorce case that the petitioner only suspected the parentage but still asked for the custody of the children. It is further we find that in 1971 itself the petitioner had doubted the parentage of the children and gave evidence in the divorce case that the children are not born to him. He kept quiet till 1978 when the present suit came to be filed. No explanation is forthcoming as to why for 6-7 years the plaintiff kept quiet without seeking declaration about the legitimacy of the children. It is in evidence and also admitted fact that the defendant had taken proceedings for maintenance in Kerala Courts. The plaintiff went and contested there. He lost his case. The children were granted maintenance, then only in 1978, the plaintiff has come up with the present suit. This shows that the plaintiff has come to the Court with an after thought to get over the valid orders and decrees passed by the Criminal and Civil Courts at Kerala. Hence I am constrained to hold that the plaintiff has failed to produce sufficient legal evidence to rebut the legal presumption available u/s 112 of the Evidence Act. The learned Trial Court had an opportunity to record the evidence of plaintiff and he has not appreciated the evidence of the plaintiff and for good reasons he has dismissed the suit. I do not find any infirmity or illegality in the findings or reasoning of the trial court. Hence, I do not find any merit in the appeal.

In the result, the appeal is dismissed. However, since the respondents and counsel are absent, I pass no order as to costs.