CHILUKURI YENKATESWARLU versus CHILUKURI VENKATANARAYANA.

Citation: [1954] 1 S.C.R. 424 · Decided: 08-12-1953 · Supreme Court of India · Bench: BIJAN KUMAR MUKHERJEA · Disposal: Appeal(s) allowed

Judgment (excerpt)

1953 
Der.. 8. 
424 
SUPREME COURT REPORTS 
[1954] 
CHILUKURI YENKATESWARLU 
v. 
CHILUKURI VENKATANARAYANA. 
[BI.TAN KUM.AR MuKHER.TEA, N. H. BHAGWATI and 
B. J'AGAN_NADHADAS JJ.] 
Indian Evidence Act (I of 1872), s. ll2-Pr1m1mption of 
law-Conclusive 
proof of leaitimacy-Birth 
rfarina 
lawful 
wedlock. 
The presumption under section 112 of the Indian E vidence 
Act is a. conclusive presumption of law which ca.n be displaced 
only by non-access between the p:i.rties to the marriage a.t a time 
when according to the ordinary course of nature the husband 
could have been the father of the child. 
Access and non·a.ccess connote existence and non-existence of 
opportunities for marital intercourse. Karapaya v. Ma11and11 (1), 
referred to. 
Non-access can be proved by evidence direct or circumstantial 
\ ' 
though the proof of non-access must be clear and sa.tisfa.ctory a.s 
the presumption of legitimacy is highly favoured by. law. 
The principle of English common law according t o which 
neither a. husband nor a wife in permitted to give evidence of non. 
access a.fter marriage to bastardize a child born in la.wful wed-
lock, does not apply to legitimacy proceedings in India. as no such 
rule is to be found a.nyw here in the Indian E vidence Act a.nd the 
old common law doctrine itself has been ~brogated in E ngland by 
the provisions of section 7 oi the Matrimonial Cause Act, 1950. 
Tba.t by the evidence on the record the defendant No. 1 
(husband) did not succeed in proving that there was no oppodunity 
for intercomse between him and defendant No. 2 (his wife) at the 
'f 
time when the infant plaintiff was conceived and the High Court 
erred in holding tha.t there was no opportunity for access between 
the parties at t~e material period. 
CIVIL APPELLATE JURISDICTION: Civil Appe!l-l No. 73 
of 1953. 
Appeal by special leave against the Judgment and 
Decree dated the 31st January, 1950, of the High Court 
of Judicature at Madras (Rao and Nayudu JJ.) in 
Appeal No. 409 of 1946 arisiµg out of the Judgment 
and Decree dated the 31st January, 1946, of the Court 
of the Subordinate .Judge of Bapatla in Original Suit 
No. 96 of 1944. 
(1) 12 Rang. 2 43 (P.C.) 
S.C.R. 
SUPREME COUR1, REPORTS 
425 
B. Somayya, Senior Advocate (M. Krishna Rao, with 
I953. 
him) for the appellant. 
' 
Ohilukuri 
D. Munikaniah, Senior Advoca,te (K. R. ChoudliitJry, 
Venkateswarlu 
with him) for the respondent. 
v. 
1953. December 8. The Judgment of the Court was v kohtilukuri 
d I. 
d b 
en a anarayana 
e ivere 
y 
MUKHERJEA J.-This appeal is directed against a 
Miikherjca J . 
judgment and decree of a Division Bench of the 
Madras High Court dated the 31st January, 1950, re-
versing, on appeal, those of the Surbordinate Judge, 
Bapatla, passed in Original Suit No. 96 of 1944. 
The suit, out of which the appeal arises, was com-
menced by the infant plaintiff, now appellant before 
us, represented by his maternal uncle as next friend, 
for recovery of possession, on partition, of a half share 
in the properties described in the schedule to the 
plaint on the allegation that they were the joint family 
properties of himself and his father, the defendant 
No. 1, in which he had an equal share with the latter. 
The plaintiff is admittedly the son of defendant No. 2, 
who is one of the legally married wives of defendant 
No. 1, but the latter denied that he was the father of 
the plaintiff and charged the plaintiff's mother with 
misconduct. The defendant No. 3 in the suit, who is 
the other living wife of defendant No. 1 and has.no 
issue of her own, is a1leged to have developed ill-feeling 
and jealousy towards the· plaintiff and his mother and 
poisoned her husband's mind against them, so much 
so, that the defendant No. 1 had actually instituted a 
suit in the Court of the District Munsif at Ongole ques-
tioning the legitimacy of the plaintiff. It was because 
of such conduct on the part of defendant No. 1 that 
the present suit had to be instituted. 
The defence put forward by defendant No. 1 ·to the 
claim of the plaintiff was a denial of his paternity, and 
the whole controversy in the suit centered round the. 
point as to whether the plaintiff was the legitimate son 
of defendant No. 1 by defendant No. 2, his second 
wife. 
On the admitted facts of the case, there could 
be no question that the operation of section 112o(the 
Indian Evidence Act would be ·attracted and the 
426· 
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SUPREME COURT REPOR'l1S 
[1954] 
1953· 
. plaint

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