Child born during wedlock to be presumed to be legitimate.

1. Heard Mr.S. Parthasarathy, learned counsel for the petitioner. Thought the respondent has been served even on 29.8.1997, there is no appearance on his behalf. He was called absent. Arguments of the learned counsel for the petitioner were heard.

2. The above revision has been filed against the order in I.A.No.61 of 1997 in O.S.No.346 of 1991 on the file of the District Munsif, Kulithalia and dated 9.6.1997. The petitioner herein has filed the suit claiming partition and separate possession of his 1/15 share in the suit properties which was comprised in several survey numbers and also for accounting. The respondent herein who is the father of the petitioner was impleaded as the 2nd defendant, the petitioners grand father was impleaded as the 1st defendant and he died pending suit. The other legal heirs were impleaded as defendants in the suit. In the said suit the respondent herein/father of the petitioner disputed the fact that he is the father of the petitioner herein.

3. The suit was taken up for trial and after examination of the witnesses, the respondent herein filed n application under Section 151, CPC read with Section 45 of the Evidence Act seeking directions from the court for medical test to be conducted by approved medical expert to find out whether the respondent is the father of the petitioner by taking samples of the blood from the petitioner respondents and the mother of the petitioner herein. This application was resisted by the petitioner herein stating that the burden is on the respondent and the petitioner is not entitled to subject to himself for any medical test and that the alleged medical test itself is not a conclusive evidence, and in law is not bound to subject to himself for any medical test or his mother. It is also stated that the petitioner or his mother is not willing for any medical test in law.

4. The learned District Munsif by a laconic order allowed the application. I have perused the said order. A bare perusal of the order of the learned District Munsif would clearly reveal that he has failed to apply his mind to the facts on record and also the decisions of this Court and the Apex Court. Aggrieved by the said order, the above revision has been filed.

5. In this context, Section. 112 of the Indian Evidence Act can be looked into. The section reads thus:

"112. 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."

This rule of law based on the dictates of justice has always made the courts inclined towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in Yank injustice to the father. Court have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.

6. As per Seel 12, the person alleging illegitimacy must conclusively establish that he had no opportunity to have intercourse with the wife at the time when according to the natural course of nature, the child must have been begotten. It requires positive proof of negative fact. The presumption contemplated by Seel 12 is a conclusive presumption of law. If it is proved that there was a valid marriage between a man and woman and during the valid marriage, the child was born, the conclusive presumption of legitimacy arises. The only thing that can displace it is the proof of the particular fact mentioned in it i