Smt. Kamti
Devi & Anr Vs. Poshi Ram [2001] Insc 302 (11 May 2001)
K.T.Thomas
& R.P. Sethi Thomas, J.
Leave
granted.
L.I.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 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.
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 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.
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