The burden of proving non-access and the requirement for positive proof of non-access or illegitimacy are essential in cases involving legitimacy, as per the provisions of Section 112, Evidence Act.

Abdur Rahman, J.

1. Whether Madurai Naicken was the legitimate son of Narayanaswami Mudali is the only question that falls to be determined in this appeal. Both Narayanaswami and Vanajakshi were members of the Naick community and were alleged by the plaintiff to have been married. The marriage was found to have been established by the trial Court and from the manner in which the judgment of the lower appellate Court proceeds, it may be assumed that this finding was affirmed. In spite of this, however, their conclusions on the question of Madurais legitimacy were conflicting. The District Munsifs finding is in para. 20 of his judgment. It is in the following words:

I am of opinion that there is no evidence worth the name, or even any attempt to prove non-access as between the married husband and wife.

2. The District Judge on the other hand, found that the presumption raised by Section 112, Evidence Act, had been effectively rebutted. This inference was drawn from certain circumstances which will have to be considered by me in due course. But before I do so, let me see, as contended for by learned counsel for the respondent, if the allegation of fact to the effect that in the event of Narayanaswamis marriage having been established, he could not have had access to Vanajakshi at any time when Madurai could have been begotten was made by the defendant. This is important as a question like this, which is purely one of fact, if not definitely raised in the pleadings should not, in my opinion, be permitted to be raised during the course of arguments even in the trial Court much less so in a Court of appeal. The relevant portion of the written statement filed on behalf of defendant 1 reads as follows:

She, (Vanajakshi) remaining unmarried, was following the dancing girls profession till her lifetime. Narayanaswami Mudali is not her husband nor is he the father of the minor Madurainayakam Mudali nor heir. The suit house never belonged to Narayanaswami Mudali at any time after the death of Madurainayakam Mudali, nor was it in his possession.

3. If I understand this plea correctly, it only meant to deny the marriage between Vanajakshi and Narayanaswami. There was no allegation in this written statement that even if these two persons were found to have been married to each other, they were living separately and they did not have any access or could not have had any access to each other and hence Madurai could not have been an offspring of this marriage. That is why no attempt was made by the contesting defendant, according to the trial Court, "to prove non-access as between the married husband and wife." In the absence of any specific plea on that point, as urged by learned counsel for the appellant, this aspect of the case ought not to have been permitted to be raised or discussed by the lower appellate Court and much less to have formed the sole basis of its judgment. This would be sufficient to dispose of the appeal. But, since the circumstances which have led the lower appellate Court to come to the conclusion that the parties to the marriage have had no access to each other have been considered in the judgment under appeal at some length, it appears to be preferable to consider them with the object of testing the inference drawn from them. Had I been even of the opinion that one could have legitimately arrived at the conclusion which the lower appellate Court has drawn from the circumstances mentioned in its judgment, I would have had either to set aside the same on the ground that no such case was ever put forward on behalf of defendant 1 or at any rate remanded the case for further evidence and a fresh decision. But since I am of opinion that even if held to have been established, they are inconclusive, such a contingency does not arise in this case. These circumstances, may, at the most, show that the parties were not living in one house tut are wholly insufficient to establish that Narayanaswami could not have had any access