IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 MFA.No. 690 of 2003() --------------------- SOP.3/1996 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT/PETITIONER IN THE SOP: --------------------------------- 1. OMANA KUNJU AMRITHA RAJAKUMARI, AGED 43, W/O.LATE K.J.JOSEPH, KONNOTH HOUSE, CHIRAKKAL WATER LAND ROAD, PALLURUTUHY, ERNAKULAM. 2. SHILPA MARY, AGED 10, D/O.LATE K.J.JOSEPH, KONNOTH HOUSE, CHIRAKKAL WATER LAND ROAD, PALLURUTHY, KOCHI - 6, REP. BY MOTHER AND NATURAL GUARDIAN, OMANA KUNJU AMRITHA RAJAKUMARI. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.JACOB SEBASTIAN SRI.PRAVEEN K. JOY SRI.M.A.RASHEED RESPONDENT/RESPONDENT IN SOP: ------------------------------- SANTHOSH D.JOSEPH, REIDING AT THAVALAKUZHIYIL HOUSE, KANAKKARI P.O. ETTUMANOOR, REP. BY NEXT FRIEND, MATHEW, S/O.VARKEY, THAVALAKUZHIYIL HOUSE, KANAKKARI, ETTUMANNOR. BY ADV.SRI.K.L.JOSEPH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.F.A.NO.690 OF 2003 (E) ----------------------------------- Dated this the 8th day of August, 2008 J U D G M E N T KOSHY,J. This appeal is filed by the appellants/petitioners against the order of the Principal Sub Judge, Kochi, in S.O.P.No.3/1996. First appellant is the mother of the 2nd appellant. Second appellant is the child born out of the wed lock with the deceased Sri.K.J.Joseph, who died on 5.9.1995 in a bus accident at Palluruthy. He was an Assistant Executive Engineer of the Kerala State Electricity Board. An amount of Rs.2,07,855/- was due to him from KSEB. He died intestate. Hence a petition was filed by the appellants for a certificate for the collection of debts and assets of the deceased in the name of the appellants/petitioners. The respondent claimed that he is the son of the deceased and he is also entitled to a share of the same. There is no dispute to the effect that 1st appellant married Sri.K.J.Joseph, who died on 5.9.1995 in the bus accident and the 2nd appellant is his M.F.A.690/03 2 daughter. Earlier, Sri.K.J.Joseph married one Mary Devassia, who was examined as RW1 in this case. Their marriage was solemnised on 28.5.1984. According to her, delivery took place on 30.5.1986. She was employed in Germany as a nurse and she was residing therein. The marriage of RW1 with the deceased ended in divorce on 9.12.1988. The allegation was that she had illicit relationship with another person and he subsequently married after the divorce. The case of the appellants is that there is no evidence to show that the respondent is the son of the deceased Joseph, and in the divorce proceedings, various pictures showing the adulterous life of RW1 was produced, which was not denied, and at that time itself, she had illicit relationship, and therefore, it is the contention of the petitioners/appellants that respondent is not the son born through the deceased Joseph. But the court below found that RW1 gave evidence that she delivered the child on 3.5.1986 and asserted that child was conceived out of relationship with deceased Joseph during the subsistence of marriage. To prove that, she produced Ext.B2 Baptism certificate. Even though it was argued that baptism certificate was not authenticate and birth certificate was not produced, the learned Judge found that even in the divorce M.F.A.690/03 3 proceedings, it was found that she delivered the child on 3.5.1986 and there was no need to disbelieve the evidence of RW1 regarding the delivery of the child on 3.5.1986. Ext.A6 order of divorce produced by the appellants also shows that delivery of the child was on 3.5.1986. Next contention was that even if she delivered the child on 3.5.1986, there is no evidence to show that deceased Joseph is the father of the child as she was living in Germany and deceased was working as Engineer in KSEB at that time. According to RW1, during the 2nd half of November, she reached Kerala, and they were living together. It is argued that passport was not produced to prove the above contention. But an ex parte order of divorce (Ext.A5) was passed on the averments of the deceased Joseph that she reached Kerala on 29.7.1985 and they lived together upto 5.9.1985 in Kerala, and thereafter only she left for Germany. The child was not a premature child. Normal delivery is about 280 days after conceived, and therefore, if they lived together from 29.7.1985 till 5.9.1985, the presumption under Section 112 of the Evidence Act will apply. Section 112 of the Evidence Act reads as follows: M.F.A.690/03 4 112. 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.” Here the presumption is applicable at the time of birth of the child and till the marriage was in subsistence. The divorce was only in 1988, even though the contention of RW1 that when she left for Germany, Joseph also went to Germany and they lived together for few weeks, that is not proved. The fact that they lived together from the last week of July 1985 for a few weeks and the child was conceived during those days, and delivered the child within 280 days and much before her second marriage attracts the presumption. Apex Court in various cases held that except in compelling circumstances, Courts shall avoid conclusion declaring a child as 'bastard'. Even though petitioners produced Ext.A10 letter written by the sister of RW1 to her which shows that even in 1984 itself, M.F.A.690/03 5 they had some illicit connections with one Appachan and that will not show that they had sexual intercourse before their marriage. In any event, no evidence was adduced to rebut the presumption. Therefore, court found that even though court has got sympathy towards the appellants, it has to be held that respondent is the child born from the deceased Joseph and he is also entitled to 1/3 rd share of the assets of Joseph. We are of the opinion that on the basis of the evidence adduced and on the basis of the presumption under Section 112 of the Evidence Act, no interference is required, and hence, this appeal is dismissed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008