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2001(4) Supreme 78
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
K.T. Thomas & R.P. Sethi, JJ.
Smt. Kanti Devi & Anr. -Appellants
versus
Poshi Ram -Respondent
Civil Appeal No. 3860 of 2001
(Arising out of SLP (C) No. 19335 of 1999)
Decided on 11-5-2001
Counsel for the Parties :
For the Appellants : Jana Kalyan Das, Advocate, (SCLSC).
Held : Whether the burden on the husband is as hard as the prosecution to prove the guilt of the accused in a trial deserves consideration in the above background. 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. The reason for insisting on proof beyond reasonable doubt in criminal cases is to guard against innocent being convicted and sent to jail if not to extreme penalty of death. It would be too hard if that standard 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. If a court declares that the husband is not the father of his wife s child, without tracing out its real father the fall out on the child is ruinous apart from all the ignominy visiting his mother. The bastardized child, when grows up would be socially ostracised and can easily fall into wayward life. Hence, by way of abundant caution and as a matter of public policy, law cannot afford to allow such consequence befalling an innocent child on the strength of a mere tilting of probability. Its corollary is that the burden of the plaintiff-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 plaintiff-husband. (Para 11)
(ii) Civil Procedure Code, 1908-Section 100-Second Appeal-Suit by husband for declaration that he was not father of child as he had no access to wife-appellant during the period child would have been begotten-Dismissed by trial Court-But allowed by appellate Court on the strength of evidence adduced by both sides-The finding not interfered in second appeal by High Court on ground that no substantial question of law was involved-Whether correct? (Yes)-Appeal against to Supreme Court dismissed.
Held : In the present case the first appellate court, which is the final fact finding court, after evaluating the entire evidence, came to the following conclusion :
"In the present case the plaintiff has examined all the evidence which he possibly could do in the circumstances. He has proved by convincing evidence, that he did not visit his village or house where the defendant was allotted one room. He has further proved that the defendant also never visited him at Mandi where he had been living for more than 2 year before the child was born to Kamti Devi. In other words he has proved that he had no access or opportunity for sexual intercourse with defendant No. 1 for more than 280 days before Roshan Lal (defendant No. 2) was begotten by the defendant No. 1."
The said conclusion was reached on the strength of the evidence adduced by both sides and the first appellate court was satisfied in a full measure that the plaintiff-husband had no opportunity whatsoever to have liaison with the defendant mother. The finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. In the result we dismiss this appeal. (Para 13)
JUDGMENT
Thomas, J.-Leave granted.
2. What is the standard of proof required to displace the conclusive presumption in favour of paternity of a child born during the subsistence of a valid marriage? Is it necessary that non-access should be proved beyond reasonable doubt, or would it be sufficient to prove it by a preponderance of probabilities? The maxim "Pater est quem nuptiae demonstrant" (The father is he, whom the nuptials indicate) has gained a sturdy legislative recognition which resulted in the formulation of the rule of evidence envisaged in Section 112 of the Evidence Act (for short `the Act ). It is based on the English rule that the child born in the wedlock should be treated as the child of the man who was then the husband of its mother. Its only exception is when the husband proves that he had no access to his wife at the time of conception of that child. Section 112 of the Act 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 he could have been begotten."
3. The section when stretched to its widest compass 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 its mother s husband, but it excludes the birth happened just one day after the period of 280 days elapsing from the date of the dissolution of that marriage. The question regarding the standard of proof for disrupting the conclusiveness of the presumption has been mooted before us as a Single Judge of the High Court of Himachal Pradesh refused to interfere in a second appeal with a finding recorded by the District Judge in a first appeal that the respondent-plaintiff has discharged his burden of proof and consequently the presumption stood rebutted. The facts which led to the said finding are the following:
The marriage between appellant Kamti Devi and respondent Poshi Ram was solemnised in the year 1975. For almost fifteen years thereafter Kamti Devi remained childless and on 4.9.1989 she gave birth to a child (his name is Roshan Lal). The long period in between was marked by internecine legal battles in which the spouses engaged as against each other. Soon after the birth of the child it was sought to be recorded in the Register under the Births, Deaths and Marriages Registration Act. Then the husband filed a civil suit for a decree declaring that he is not the father of the child, as he had no access to the appellant Kamti Devi during the period when the child would have been begotten.
4. The trial Court, on the basis of admitted facts that the parties are spouses of a valid marriage and that the marriage subsisted on the date of birth of the child, relied on the conclusive presumption mentioned in Section 112 of the Act. The trial Court further held that the husband failed to prove that he has no access to his wife Kamti Devi during the relevant period. Accordingly the suit was dismissed.
5. But the first appellate court, after re-evaluating the entire evidence, found that the husband plaintiff succeeded in discharging the burden for rebutting the presumption by proving that he had no access to the mother of the child during a very long stretch of time covering the relevant period. On the strength of the said finding the first appellate court allowed the appeal and decreed the suit declaring that the plaintiff is not the father of the child Roshan Lal. The High Court refused to interfere with the aforesaid finding in the second appeal on the premise that "the question whether Roshan Lal is the son of the plaintiff is a pure question of fact which calls for no interference by the C
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