( 1 ) THIS appeal and the other appeal No. 9 of 1964 arise from cross-petitions made by the husband and the wife under the Hindu Marriage Act, 1955, both of which were decided in favour of the wife. The petition by the husband was for divorce under Section 13 of the Hindu Marriage Act, on the ground that the wife was living in adultery. The wife's petition was under Section 9 of the Act for restitution of conjugal rights. The real controversy between the parties is whether a child, whom the wife gave birth during the continuance of a valid marriage between the parties, was illegitimate. The husband refused to allow the wife to enter his house from the moment he discovered that she was pregnant Both the cases were consolidated in the Court below. Evidence was recorded only once, to be used in both the cases. It is, therefore, convenient to dispose of both the appeals by a common judgment.

( 2 ) THE parties were married in 1957. The wife gave birth to a male child on 25th august 1960 during the subsistence of the marriage. The case for the appellant husband i" that at no time did he cohabit with his wife; that one month prior to diwali of the year 1959, the wife went away to her parents' house and thereafter did not return until June 1960, when her father brought her to his house, but at that time she was visibly pregnant; that the petitioner's father refused to take her back as the conception was illegitimate; that in a panchayat held on or about 4th july 1960, the wife admitted that her pregnancy was of 7 months; and that according to the petitioner's calculations, she must have conceived sometime in november or December 1959 so that the child was conceived at a time when he had no access to his wife.

( 3 ) THE respondent wife's case is that the child is legitimate. She used to sleep with her husband after the marriage and that the child is from no one else but her husband.

( 4 ) AS the child was born and begotten at a time when the marriage between the appellant and the respondent was subsisting, Section 112, Evidence Act, is attracted. It is an irrebuttable presumption of law in a civilized nation that a person born during the continuance of a valid marriage between his mother and a man is the legitimate child of that man, Pater est quem nuptiac demonstrant the is the father whom the marriage indicates ). It is a rule of prudence and is also in accordance with the rule of natural justice that a child born of a marriage must be deemed to be legitimate and it throws on any person, who is interested in making out the illegitimacy, the whole burden of proving it. The presumption contemplated, under Section 112, Evidence Act, is a conclusive presumption of law; the only thing which can displace it is proof of a particular fact mentioned in it, that is, non-access between the parties to the marriage at a time when the child could have been begotten. The person alleging illegitimacy must conclusively establish that the husband had no opportunity of intercourse with the wife, at a lime when according to the ordinary course of nature, the child must have been begotten. Non-access may be proved by means of such legal evidence as is admissible to prove a physical fact, but every presumption has to be made in favour of legitimacy of the child, who is found to have been born in lawful wedlock and the onus of proving non-access or that of illegitimacy is heavy on the party who alleges it. The law requires posilive proof of a negative fact, i. e. . non-access between the parties to the marriage. The mere fact that they were living apart in different houses is insufficient to establish non-access. The presumption of legitimacy is one of the strongest presumptions of which the law is cognizant See venkateswarlu v. Venkatanarayana, AIR 1954 SC 176; Mt. Saroo v. Yeshwant narayan, AIR 1934 Nag 124; and Maina v. Deorao ILR (1942) Nag 383 : (AIR 1942 Nag 96 ).

( 5 ) IT is in this light that the facts and circumstances of this case have to be cons

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