Basant, J.

(1) Does the prayer for declaration of illegitimacy of a child born during the subsistence of a valid marriage fall within the sweep of explanation (e) to Section 7(1) of the Family Courts Act?

(2) Is the presumption of legitimacy under Section 112 of the Evidence Act available in favour of a child born within 209 days of the date on which access commenced between the spouses?

These are the crucial questions that arise for consideration in this appeal.

2. The appellants are a divorced wife and her minor daughter. The marriage of the first appellant with the respondent took place on 24.6.1985. The child in question (the 2nd appellant) was admittedly born on 13.7.1994. The marital tie was dissolved on 17.8.1995.

3. Long later, the respondent-husband alleged that he came to know that his name has been entered in the records of the Local Authority as the father of the child. He called upon the Local Authority by Exhibit A4 lawyer notice dated 20.2.2001 to reverse the

entry regarding paternity in the records. He received Exhibit A5 reply dated 24.3.2001 that it was not possible to do so. According to him, he then had a cause of action and he came to the court for adeclaration that the child/second appellant herein is not a legitimate child born to him in his relationship with the first appellant herein.

4. The foundation of the claim for declaration is that the husband was working abroad and had come back to India only on 17.12.1993. 17.12.1993 is the earliest date on which possible access was there between the spouses for such pregnancy. The date of birth of the child is 13.7.1994. There was only a gap of 209 days. From this, he concluded that the child born during the subsistence of the matrimony is not at all begotten to him in the marital tie. Hence, he prayed for a declaration that the child is not his legitimate child.

5. The application was resisted on various grounds. It was contended that the husband has more than one passport and it is not correct to say that he was in India only on 17.12.1993 and thereafter. He was in India earlier. In these circumstances, it was contended that access was there even prior to 17.12.1993. It was further contended that at any rate the presumption under Section 112 of the Evidence Act applies and continues to remain in force. Legitimacy of the child born in such relationship must be conclusively presumed under Section 4 of the Evidence Act, it was contended.

6. Parties went to trial on all these contentions. On the side of the respondent/petitioner, a Doctor, who attended on the first appellant for the delivery was examined as PW1. The respondent herein examined himself as PW2. The first appellant examined herself as RW1. While Exhibits A1 to A8 were marked on the side of the respondent, through PW1 Doctor, Exhibit X1 case sheet was also marked. Before the court below, there was a prayer that the parties may be permitted to undergo a DNA finger printing test. That prayer of the respondent herein was not allowed, in view of the opposition of the first appellant.

7. The court below on an anxious consideration of the relevant inputs came to the conclusion that the child could not have been begotten on or after 13.12.1993 and consequently, it was held that the presumption under Section 112 of the Evidence Act will not be available in favour of the appellants. Accordingly, the court proceeded to pass the impugned order.

8. Before us, the learned counsel for the appellants and the respondent have advanced their arguments. The learned counsel for the appellants assails the impugned order on the following three grounds.

(1). The court below must have held that the petition filed by the respondent is barred by limitation under Article 58 of the Indian Limitation Act.

(2) The court below ought to have held that declaration of illegitimacy cannot be claimed or granted under explanation (e) to Section 7(1) of the Family Courts Act.

(3) At any rate the court below erred grossly in c