IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 RSA.No. 973 of 2011() --------------------- AS.150/2010 of III ADDL.SUB COURT, ERNAKULAM OS.425/2007 of I ADDL.MUNSIFF COURT,ERNAKULAM .................... APPELLANTS/APPELLANTS IN AS NO.150/2010/PLAINTIFF IN O.S.NO.425/2007 ------------------------------------------------------------------------------------------------------------- 1. MASTER MILAN JOSEPH, AGED 11 YEARS, S/O. IVAN RATHINAM, A MINOR, REPRESENTED BY HIS MOTHER AND NEXT FRIEND SMT.ASHA LAWRENCE, 45 YRS, 702, GARDEN GATES APARTMENTS, GANDHI NAGAR, KOCHI-682 020. 2. ASHA LAWRENCE, AGED 44 YEARS, D/O. LAWRENCE, 702, GARDEN GATES APARTMENTS, GANDHI NAGAR, KOCHI-682 020. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN RESPONDENT(S): RESPONDENT IN AS NO.150/2010/DEFENDANT IN OS 425/2007 ---------------------------------------------------------------------------------------------------------------- IVAN RATHINAM, S/O. RATHINAM PILLAI, AGED 46 YEARS, KADAVIL HOUSE, VADAKKAL P.O., ALAPPUZHA, NOW WORKING AS ASSISTANT COMMANDANT OF ARMED RESERVE POLICE CAMP, ALAPPUZHA-688 003. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 973 OF 2011 =========================== Dated this the 28th day of October,2011 JUDGMENT Plaintiffs in O.S.425/2007 on the file of Additional Munsiff Court, Ernakulam are the appellants. Defendant is the respondent. First appellant is the son of the second appellant. The suit was filed for a declaration that respondent is the father of first plaintiff and for a mandatory injunction directing the respondent to submit necessary application to remove the name of Raju Kurian from the place of the father of the first plaintiff, in the register of births maintained by the local authority. Second appellant admittedly married Raju Kurian. That marriage was solemnised on 16.4.1989. According to the appellants, second appellant was then studying in Law College. The first appellant was born RSA 973/2011 2 to her in her wedlock with Raju Kurian in 1991. It was contended that marital relationship with Raju Kurian got strained. It was seriously strained. during 1996 due to various reasons. From 1996 onwards second appellant was living separately, from board and bed, eventhough her marriage with Raju Kurian was subsisting and they were living under the same roof. It was contended that the marital relationship with the second appellant was later terminated by a decree for divorce. Respondent is a distant relative of the mother of the second appellant. They were known to each other from 1988 onwards. During that period respondent used to come to the house of the second appellant to meet her father, who was a member of the Parliament to procure a job. It was contended that it was at the instance of the father of the second appellant, respondent got a job in Police service. He was working as a Sub Inspector of Police at AR Camp at Alappuzha. It was alleged that during that period second appellant was RSA 973/2011 3 residing at Kuthiathodu in Alappuzha District. Gradually the relationship of the second appellant with the respondent developed into a love affair and he used to visit the second appellant at her house Kuthiathodu and they also used to reside at the house of a Circle Inspector of Police , AR Camp by name Sasi who is a close friend of the respondent. On account of the sexual relationship, second appellant got pregnant from the respondent. It was alleged that due to compulsion on the part of the respondent, the pregnancy was aborted. Second appellant was admitted to Lissie Hospital, Ernakulam. Even thereafter their relationship continued. The respondent used to have sexual relationship with the second appellant. She became pregnant again and first appellant was born to the second appellant at Medical Trust Hospital, Ernakulam on 11.6.2001. He was born with serious urinary problem and has to undergo major surgeries in various hospitals including Ernakulam Medical Centre. The respondent admitted paternity of the RSA 973/2011 4 first appellant and also met the treatment expenses. In August, 2005 second appellant and the respondent took the first appellant to New Delhi for further treatment. During March 2006 second appellant and the respondent took the first appellant to A.I.I.M.S at New Delhi for surgery. The second appellant had no physical or sexual relationship with her husband from 1996 onwards, though they were living under one roof. It was contended that as the second appellant had begotten the first appellant in her sexual relationship with the respondent, respondent is his father and respondent admitted paternity and deposited Rs.25,000/- in the account opened in the name of the first appellant during 2004 for his maintenance and meeting the treatment expenses. It was also contended that respondent continued to deposit Rs.2000/- per month in that account for six or seven months and he had sent numerous letters and greeting cards admitting the paternity. The second appellant had confessed to her husband Raju Kurian RSA 973/2011 5 about the relationship with the respondent and that respondent is the father of the first appellant. This caused the husband to put an end of their marital relationship by a decree for divorce. Raju Kurian went abroad later. Along with the second appellant, he moved a joint application for divorce before Family Court, Ernakulam which was allowed granting a decree of divorce. In the birth certificate issued by the Corporation of Cochin name of the father of the first appellant is shown as Raju Kurian, though second appellant requested the authorities to change the name as that of the respondent, they expressed difficulty to consider the request without a direction or order from the court of law. Hence the suit is instituted seeking a decree for a declaration and mandatory injunction. 2. Respondent resisted the suit contending that second appellant is a divorcee and first appellant was born to her out of the wedlock with Raju Kurian and during the period when the second appellant RSA 973/2011 6 begotten the first appellant, she was the wife of Raju Kurian and they were living together under one roof. It was contended that second appellant is not entitled to file a suit to make the child bastard. It was also contended that respondent was not having any connection whatsoever with the second appellant and it was known that she was leading a wayward and loose life, taking advantage of the total engagement of her husband in his family business. Respondent had no close relation with the second appellant, when she was leading a happy married life with Raju Kurian. She was also blessed with two children in that wedlock. It was also contended that to the knowledge of the respondent the relationship of Raju Kurian and second appellant was happy and normal and they enjoyed a stable physical relationship. The respondent was not aware of the reasons why the second appellant divorced Raju Kurian later. Respondent is a distant relative of the mother of the second appellant and they were known to each RSA 973/2011 7 other. While the second appellant had been in the College, she had expressed unilateral love affection with the respondent and demanded him to marry her. As she was leading a wayward life and they were rumours of illicit relation, respondent did not agree for the proposal. After the divorce with her husband, second appellant was trying to have association with the respondent. It was denied that respondent got employment with the assistance of the father of the second appellant. He was selected as Sub Inspector of Police by Kerala Public Service Commission through a demanding selection process. Respondent got the employment out of his own hard work. Respondent got married in 1993 and is leading a normal happy relation with his wife and family. He has no direct knowledge regarding the pregnancy or abortion as alleged. He was closed to the mother of the second appellant and used to visit her on occasions. During 2002-2003 second appellant, through her mother under the excuse that her RSA 973/2011 8 husband had left her and there is nobodyelse to help her daughter persuaded the respondent to accompany her and the child to MIMS at Calicut. He has not gone to EMC, Ernakulam or to the National Hospital. Respondent told that first appellant was having urinary problem which required surgical corrections. As the relationship of the second appellant with Raju Kurian was strained and he was away as requested, respondent had assisted the second appellant to take the child for treatment. It was out of the family relationship and not on account of the alleged sexual relationship with the second appellant. As the second appellant was advised to consult doctors at AIIMS, Delhi, she arranged for taking the child to New Delhi for treatment including surgery. The arrangements were done by the second appellant. The respondent had accompanied her to help her and while at New Delhi her behaviour was not in consonance with the acceptable behaviour of a married woman. The respondent had given gift to the RSA 973/2011 9 first appellant minor as suggested by the second appellant and her mother and it was not on account of the alleged relationship. It is therefore contended that as respondent is not the father of the first appellant, appellants are not entitled to the decree sought for. 3. Learned Munsiff on the evidence of PW1, Exts.A1 to A12, B1 to B3 and X1 and X2 dismissed the suit holding that the first appellant was born during the subsistence of the marital relationship between the second appellant and Raju Kurian and as they were residing under one roof, there cannot be non access and therefore as provided under section 112 of Indian Evidence Act, the father of the first appellant could only be the husband of the second appellant and not the respondent. Appellants challenged the decree and judgment before Sub Court, Ernakulam in A.S.No.150/2010. Learned Sub Judge on reappreciation of the evidence found that when the first appellant was born to the second appellant during subsistence of her marriage RSA 973/2011 10 with Raju Kurian and second appellant begotten the first appellant at a time when they were residing under one roof, in view of Section 112 of the Indian Evidence Act, Raju Kurian could only be the father of the first appellant and not the respondent. The appeal was dismissed. It is challenged in the second appeal. 4. Learned counsel appearing for the appellants was heard. 5. The argument of the learned counsel is that the courts below did not properly appreciate the evidence adduced by the parties. It was pointed out that second appellant when examined as PW1 unambiguously deposed that though she was residing along with her husband Raju Kurian under one roof, when the first appellant was born, as the relationship was strained from 1996 onwards she had no sexual relationship with her husband and there was no access with him and first appellant was born to her in her relationship with the respondent and the respondent was not examined himself as he RSA 973/2011 11 was not prepared to face cross examination and therefore evidence of PW1 establishes non access. It is argued that in such circumstances, section 112 of Indian Evidence Act should not have been taken as a ground to deny the paternity of the first appellant claimed in the suit. Learned counsel also pointed out that the various letters sent by the respondent to the second appellant the greeting cards sent by the respondent to the first appellant where he had described himself as pappa establish that respondent admitted the paternity of the first appellant and in the light of this evidence courts below should have found that respondent is the father of the first appellant. Learned counsel relying on the decision of the Apex Court in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and another (AIR 2010 SC 2851) argued that as declared by the Supreme Court court has to consider all aspects including the presumption under section 112 of the Indian Evidence Act, pros and cons of such order RSA 973/2011 12 and the test of 'eminent need' whether it is not possible for the court to reach the truth. The argument is that when the evidence establish the non access of the second appellant with Raju Kurian, when she begotten the first appellant and her evidence establishes that first appellant was born to her on her sexual relationship with the respondent, the conduct of the respondent by addressing himself as the father of the first appellant in various letters sent to the second appellant establish that respondent is the father of the first appellant and therefore a decree is to be granted as sought for. 6. Appellants are admitting that the marriage of the second appellant with Raju Kurian was solemnised on 16.4.1989, though the marriage was divorced later. It is also admitted that during subsistence of the marriage, a daughter and a son, the first appellant, were born to the second appellant. Second appellant is not disputing the fact that the daughter was born to her in her RSA 973/2011 13 relationship with her husband Raju Kurian. The case is that her relationship with Reaju Kurian the husband got strained in 1996 and though they were living under one roof, they were not having any physical contact during the period the first appellant was born and she had sexual contact with the respondent and she got pregnant and at the instance of the respondent she subjected herself to abortion and again the relationship continued and first appellant was born in that relationship. True, respondent was not examined and the oral evidence adduced was that of the second appellant alone. Question is whether on the evidence of PW1 and Exts.A1 to A12 and X1 and X2 it could be said that second appellant was not having any access with Raju Kurian and was having sexual relationship with the respondent and first appellant was born in that relationship. 7. Section 112 of Indian Evidence Act provides that when a child is born during the subsistence of a marriage it shall be the conclusive proof that RSA 973/2011 14 the child is the legitimate son of the man in the absence of non access between the husband and the wife. Section 112 reads:- “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.” RSA 973/2011 15 Therefore it is absolutely clear that the legitimacy attached to the birth of the child to a married couple during the subsistence of the marriage is conclusive unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. 8. The argument of the learned counsel is that when the first appellant was begotten second appellant had no access to her husband Raju Kurian. The question is when admittedly the husband and wife were living under one roof, whether the husband or the wife is entitled to plead non access. I cannot agree with the submission of the learned counsel that evidence of either the husband or the wife about non access at a time when they are living under one roof, could be taken as sufficient to get over the conclusiveness provided under section 112 of Indian Evidence Act. The non access provided under section 112 could only be a non access which is not possible at all and not a RSA 973/2011 16 non access asserted by the husband or the wife while living under one roof. If the argument of the non access while residing under one roof by the husband and wife is to be accepted, it will cut the very root of the salutary provision provided under section 112 of the Act. Hence I cannot agree with the argument of the learned counsel that evidence of PW1 which was not rebutted by the evidence of the respondent is sufficient to establish the non access so as to get over the conclusiveness of legitimacy attached under section 112 of the Indian Evidence Act. When section 112 mandates that in the absence of non access, there is conclusiveness on to the legitimacy of the child, as first appellant was begotten and born during the subsistence of the marriage of the second appellant and Raju Kurian and that too while residing under one roof it can only be found that first appellant was born to the second appellant in her marital relationship with Raju Kurian. RSA 973/2011 17 9. The question whether access provided under the section was actual sexual intercourse between the spouses or only an opportunity to have sexual intercourse was considered by Privy Council in Karapaya v. Mayandi (A.I.R.1934 PC 49). It was held that the word access connotes only existence of opportunity for marital intercourse. The three Judge Bench of the Supreme Court in Chilukuri Venkateswarlu v. Chilukuri Venkaranarayana (A.I.R.1954 SC 176) followed the principles as follows:- “4. It may be stated at the outset that the presumption, which Section 12 of the Indian Evidence Act contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the Section, namely, non-access between the parties to the marriage at a RSA 973/2011 18 time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access against connote, as has been held by the Privy Council : Vide --- 'Karapaya v. Mayandi', AIR 1934 PC 49 (A), existence and non-existence of opportunities for marital intercourse. It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the RSA 973/2011 19 provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non- access must be clear and satisfactory. Mr. Somayya has also not contended seriously before us that the principle of English Common Law : Vide --- 'Russel v. Russel', 1924 AC 687 (B), according to which neither a husband nor a wife is permitted to give evidence of non-access, after marriage to bastradise a child born in lawful wedlock, applies to legitimacy proceeding in India. No such rule is to be found anywhere in the Indian Evidence Act and it may be noted that the RSA 973/2011 20 old Common Law doctrine has itself abrogated in England by the provision of Section 6 of the Matrimonial Cause Act 1950 : Vide 'In re Jenion' 1952-1 All ER 1228 (C).” The effect of conclusive proof as defined under section 4 of Indian Evidence Act in the light of section 112 of Evidence Act was considered by the Apex Court in Kamti Devi v. Poshi Ram ((2001) 5 SCC 311) and held:- “9.But section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten RSA 973/2011 21 the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, 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 RSA 973/2011 22 illegitmatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.” When the husband and wife were residing under one roof having all the opportunity for marital sexual relationship, a plea of non access cannot be sustained. 10. In the light of the admitted fact, whatever be the other circumstances pointed out by the appellants, they cannot displace the the conclusiveness attached to section 112 of the Indian Evidence Act. The conclusiveness provided under section 112 cannot be watered down for the reason that the mother of the child is alleging paternity of the child on somebody else other than her husband and that too when the husband is not a party to the lis. RSA 973/2011 23 11. Though learned counsel vehemently argued that fact that respondent had gone to the hospital at Ernakulam and also to New Delhi and had done all a father would do for the child and had sent greeting cards to the first appellant addressing himself as pappa and the letters written by the respondent to the second appellant would show that the respondent is the father of the first appellant, in view of Section 112 legitimacy of the paternity of Raju Kurian is conclusive. The said evidence cannot be relied on to the illegitimise, the legitmacy provided under section 112 of Evidence Act. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006