Honble 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 mothers 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 :

(4). 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 male 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.

(5). 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.

(6). 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 Lala is the son of the plaintiff is a pure question of fact which calls for no

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