LexSMT. KANTI DEVI AND ANR. versus POSHI RAM
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SMT. KANT! DEVI AND ANR. v. POSHI RAM MAY 11, 2001 [K.T. THOMAS AND R.P. SETHI, JJ.J Evidence Act, 1872--Sections 4 and 112-Child born after 15 years of marriage-Husband filed a suit for a declaration de1~ving his paternity due A B to nun-access to the wife-Trial Court dismissed sitit-Firsl Appellate Court C reversed the orderjinding the presumption successfully reb111ted-lnte1ference refused in second appeal as a pure question of fact was involved-On appeal Held, legislative concern is to legitimize a child who should not suffer social disability on account of /aches or lapses of parenls-Rebutling the presumption is the only outlet to the party to escape conclusiveness of proof, which remains firm even if modern scientific tests prove the contra1y-Standard of D proof in such cases must be a degree between the test of proof beyond reasonable doubt and preponderance of probabilities-First Appellate Court was fully satisfied while holding that the presumption was successfully rebutted and such a finding cannot be inte1fered with in second appeal. Word5 and Phrases-Meaning of "access" in the context of Evidence E Act, 1872-Section 112. Appellant is the wife of the respondent. They were married in 1975 but remained childless for about 15 years. A lot of matrimonial litigation lingered on between them during this period. However, a child was born to the appellant F in 1989. Respondent filed a suit for a declaration that he was not the father of that child, due to non-access to the appellant, rebutting the presumption under Section 112 of the Evidence Act. Trial Court dismissed the suit. First Appellate Court allowed the appeal of the respomlent. High Court refused to interfere in the second appeal filed by the appellant as a pure question of fact was involved. Hence this appeal. G Appellant contended that First Appellate Court wrongly relied on the interested e\·idence of the husband that the High Court failed to formulate the substantial question of law as to whether the burden to prove non-acctss to wife is as heavy as the burden of prosecution in a criminal case to prov~ n9 H 1730 I SUPREME COURT REPORTS [2001] 3 S.C.R. Dismissing the appeal, the Court HELD : 1. The true import of the word "access" in Section 112 of the Evidence Act cannotes only existence of opportunity for marital intercourse. B 1733-El Chilukuri Venkateswtirlu v. Ch.ilukuri Venkatanarayan, [ 19541 SCR 424, followed. Karappayya Severai v. Mayandi, A.IR (1934) PC 49, referred to. C 2. Section 112 itself provides an outlet to the·party who wants to escape from the rigour of conclusiveness of proof under Section 4 of the Act, if it can be shown that the parties h.ad no access to each other at the tihie when the child could have been begotten. The party who wants to dislodge the conclusiveness and rebut the presumption has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that D she too did not have the opportunity of approaching him during the relevant time. 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 d'etre is the legislative'concern against illegitimatizing a child a·nd that he should not suffer social disability on E account of the laches or lapses of parents. 1734-A-q 3. Section 112 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, ~ut even that is not F enough to escape from the conclusiveness of Section .112 of the Act: If a husban!l and wife were living together during the time of conception but the -·- \ t ., ,. ' DNA test revealed that the c·hild was not born to.the husband, the ' ' ' conclusiveness in law.would remain unrebuttable. This may loo,k hard from the point of~iew of the husband who would be compeiled to bea~ the fathe~hood of a child of which he may be innocen't. But even in' such a. c.a.se t.he law leans G in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of.conception. 1734-D-El 4. The sta;1dard of p~oof of prosecution to pr'.ove the guilt beyond any reasonable doubt belongs ,to .
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