EMATHEWS APPU Vs. ANLET DANLEY
HIGH COURT OF KERALA
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(1.)This revision petition arises out of an application made by the first respondent against the petitioner under S.488 Cr. P. C. alleging that the petitioner had married her, that the second respondent was horn to him and claiming maintenance. The first respondent as Pw. 1 has sworn that even though she was originally married to one Muthunayakom that marriage had been dissolved in 1952 and in 1954 the petitioner married her. The contention of the petitioner was that the first respondent was the legally wedded wife of Muthunayakam, that the marriage is till subsisting, that there was no legal divorce and therefore S.112 of the Evidence Act would apply. He also denied the marriage and the paternity of the child. As there could be no legal divorce and her marriage with the petitioner cannot be considered as a legal marriage the first respondent withdrew her claim for maintenance. The learned Magistrate on a consideration of the evidence adduced found that the petitioner was the father of the child and awarded maintenance at the rate of Rs. 15/- to the second respondent child. Aggrieved with the order this revision petition has been filed.
(2.)The main argument urged on behalf of the petitioner is that the court below has not correctly understood the scope of S.112 of the Evidence Act and on a correct application of the section the order cannot be supported. S.112 is in the following terms:
"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."
Therefore, if a child is born during the continuance of a valid marriage there is the presumption in law that the person is the father of the child. To quote the words of Mukherjee, J.- as he then was in Venkateswarlu v. Venkatanarayana AIR 1954 SC 176 at p. 177:
Access and non access again connote, as has been held by the Privy Council in Karapaya v. Mayandi ( AIR 1934 PC 49 ) existence and non existence of opportunities for marital inter course".
(3.)In the decision in Krishnappa v. Venkatappa ( AIR 1943 Mad. 632 ) Chandrasekhara Ayyar, J., following the Privy Council decision stated:
"There is a presumption of legitimacy in favour of a child born in lawful wedlock ana this presumption is conclusive unless it can be shown that the husband and wife had no access to each other at any time when the child could have been begotten. In the absence of such evidence the child must be deemed to be legitimate even though the wife was living apart and leading an unchaste life.
"The word 'access' in S.112 means opportunity for sexual intercourse and not actual cohabitation."
Non access can be established not merely by positive or direct evidence, it can he proved undoubtedly like any other physical fact by evidence, either direct or circumstantial which is relevant to the issue, though, as the presumption of legitimacy is highly favoured by law, it is necessary that proof of non access must be clear and satisfactory.
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