9911796707
TMI Blog2001 (5) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
