Court: GAUHATI HIGH COURT
Bench: JUSTICE T. Vaiphei
AMRITA DAS Vs. MUKUL DAS On 4 September 2006
Husband unable to prove he did not have marital intercourse with Wife during continuance of marriage. Burden of proof for legitimacy of child in on father.
The validity of the judgment and order dated 2.8.2004 passed by the learned Additional Deputy Commissioner, Shillong in Matrimonial Case No. 1(T) of 2004 granting a decree of divorce to the respondent by dissolving the marriage between the appellant and the respondent is called into question in this appeal.
2. Heard Mr. N. Mozika, the learned Counsel for the appellant and also heard Mr. H.R. Nath, the learned Counsel for the respondent.
3. To appreciate the controversy involved in this appeal, a brief narration of uncontroverted facts may be apposite. The respondent herein filed an application under Section 13(1)(i) of the Hindu Marriage Act, 1955 before the learned Addl. Deputy Commissioner, Shillong for dissolution of his marriage with the appellant. The respondent got married with the appellant on 9.12.2002 at Karimganj, Assam in accordance with Hindu rites and rituals, whereafter they resided at Shillong for a brief period. After their marriage, the appellant left her matrimonial house on 12.2.2003. She, however, returned to the respondent on 10.3.2003 and stayed with him thereat till 15.2.2003, and then she again left for her parental house. During this short period, she had a complaint of illness with maternity symptom, for which she was taken to a medical clinic at Shillong for necessary test. The medical test indicated that there was no symptom of pregnancy at that time. However, while she was at her parental house, she gave birth to a male chi ld on 19.11.2003. A number of allegations of cruelty, etc. are also made by the respondent against the appellant. The respondent could not believe that the child begotten by the appellant on 19.11.2003 was his and suspecting that the pregnancy of the appellant was caused by her living in adultery with some other person, he filed the application for dissolution of marriage.
4. The case was not contested by the appellant in the Trial Court and the proceedings before the Trial Court had to be disposed of against the appellant ex parte. In the course of trial, two witnesses were examined on behalf of the respondent. On the foregoing uncontroverted facts, the learned Addl. Deputy Commissioner recorded the findings that the medical report at Ext. 1 proved that the appellant was not pregnant on 14.3.2003, where after she left the respondent and that there was no physical contact or cohabitation between them from March 2003 to November, 2003. The Trial Court took the view that the pregnancy of the appellant and the subsequent birth of the child to the appellant could not be through the respondent and, as such, adultery could be inferred from the aforesaid circumstances. In reaching this conclusion, the learned Trial Court also relied heavily on the observations made in Modi’s Medical Jurisprudence and Toxicology which states that children born after 6th calendar month or after 180 days of uterine life may be viable and capable of continuing an independent life apart from their mothers.
5. Attacking the findings of the trial Court, Mr. H.S. Thankhiew, the learned Counsel for the appellant submits that the conclusion of the Trial Court that the appellant has indulged in adultery was based on surmises and conjectures and that the learned Trial Court grossly erred in relying on the medical test conducted on 14.3.2003 indicating the non-existence of pregnancy inasmuch as one single medical test may not be able to establish absence of pregnancy. According to the learned Counsel for the appellant, the disputed fact that appellant gave birth to a male child on 19.11.2003 and the further fact that she had resided with the respondent till 12.10.2003 and, thereafter, from 10.3.2003 to 14.3.2003 would go to show that the date of giving birth to the child on 19.11.2003 falls within 280 days which is a normal gestation period. The learned Counsel for the appellant goes on to submit that when the birth of the child took place during the subsistence of the marriage between the appellant and the respondent or within 280 days of the dissolution of marriage, by the operation of Section 112 of the Evidence Act, in the absence of proof of non-access, which is the case here, the respondent is the legitimate father of the child and that there was no question of commission of adultery by the appellant. On the other hand, Mr. H R Nath, the learned Counsel for the respondent in supporting the impugned judgment and order contends that the result of the medical test conducted on 14.3.2003 negativing pregnancy of the appellant coupled with the absence of co-habitation with the respondent since 12.2.2003 till 14.3.2003 conclusively established that the child was not his and it must had been conceived by the appellant when committing adultery with some one known person. The learned Counsel for the respondent vehemently urges this Court to uphold the impugned judgment and order so that the respondent is not forced to legitimise the illegitimate child of the appellant resulting from her adulterous life.
6. The legal position governing a petition by the husband for divorce on ground of adultery of his wife is aptly swarmed up by the Madhya Pradesh High Court in Hargovind Soni v. Ramdulari, AIR 1986 MP 57. Adultery is generally proved by presumptive proof based upon (a) circumstantial evidence, (b) evidence of non-access and birth of children, (c) contracting venereal disease, and (d) confessions and admissions. Adultery is seldom susceptible of proof except by circumstances which would lead to that conclusion. The birth of a child to the wife when there was no access to her by the husband during possible period of conception shows, no doubt, adultery by the wife. In the instant case, the respondent is seeking to proof adultery by the appellant by evidence of non-access and birth of children inasmuch as he could not show adultery by confessions or admissions of the appellant or by direct evidence. Section 112 of the Evidence Act is the formulation of the Rule of Evidence, which 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 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 it could have been begotten.”
On a plain reading of the section, it is clear that the provision is capable of encompassing even the birth of a child on the next day of a valid marriage within the range of conclusiveness regarding the paternity of his mother’s husband, but it exclude the birth happened just one day after the period of 280 days elapsing from the date of the dissolution of that marriage. However, Section 112 also provides an outlet to the party who wants to escape from the rigour of that conclusiveness. If the husband can show that the parties have no access to each other at the time the child could have been begotten, the presumption could be rebutted. In the words of the Apex Court in Kamti Devi (Smt.) and Another v. Poshi Ram, I (2001) DMC 763 (SC)=IV (2001) SLT 120=2001 (5) SCC 311, the party who wants to dislodge the conclusiveness engrafted in Section 112 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 to approach 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 Apex Court also held therein that the standard of proof of prosecution to prove the guilt beyond any reasonable doubt belongs to criminal jurisprudence whereas the test of preponderance of probabilities belongs to civil cases. It would be too hard if the standard of criminal cases is imported in a civil case for a husband to prove non-access as the very concept of non-access is negative in nature. But at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatised. Therefore, the burden of the husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the husband. The word “access” connotes existence of opportunity for marital intercourse.
7. It is against the backdrop of the aforesaid legal principles that I proposed to examine the evidence adduced by the respondent. As noted earlier, the material facts on record are not in dispute. The appellant resided with the respondent till 12.2.2003 and, thereafter, left for her parental house. She again returned to her matrimonial home and live, together with the respondent from 10.3.2003 to 14.3.2003. The question to be considered is whether there was an opportunity for the parties for marital intercourse during the subsistence of their marriage or from the time of their marriage when the appellant started living separately. If there is any evidence to show the existence of opportunity for marital intercourse between the appellant and the respondent during that period, then there is a conclusive proof that the child begotten by the appellant is the legitimate child of the respondent. The uncontroverted facts on record are that the appellant gave birth to the child on 19.11.2003 and even if the period during which the appellant resided with the respondent at her matrimonial home is calculated from 12.2.2003, the child was born within 280 days, which is the normal gestation period as recognised by Section 112 of the Evidence Act. It cannot, therefore, be said that during those periods, the respondent had no access to the appellant. However, the Trial Court is influenced by the fact that the result of the medical test conducted on 14.3.2003 indicated non-existence of pregnancy on the appellant. Section 112 of the Evidence Act, providing conclusive proof of legitimacy to a child born during the continuance of a valid marriage or within 280 days after its dissolution appears to have overridden not only the matter of pregnancy test but also the result of a DNA test. The Apex Court in Kamti Devi (supra) laid down the law to that effect. This is what the Apex Court says at paragraph 10, which reads as follows:
“We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic 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. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebutable. 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 bastardised 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.”
In the instant case, once it is held that the appellant gave birth to the child within 280 days after his dissolution or during the continuance of her valid marriage with the respondent, the rigour of the conclusiveness engrafted in Section 112 of the Evidence Act shall have to operate with its full force. This is even so when the respondent is unable to prove that he did not have any opportunity to have marital intercourse with the appellant during the period. In the view that I have taken, the approach of the Trial Court in relying upon the test of the medical report at Ext. 1 to rule that the respondent had no access to the appellant during that period is wholly erroneous and is contrary to the law laid down by the Apex Court. In that view of the matter, the impugned judgment and order cannot be sustained in law and is liable to be set aside.
8. For the reason stated in the foregoing, the appeal is allowed. The judgment and order dated 2.8.2004 passed by the learned Additional Deputy Commissioner, Shillong in Matrimonial Case No.1(T) 2004 is hereby set aside, but the parties are directed to bear their own costs.
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