Holding

The Supreme Court held that "access" under Section 112 means merely the opportunity for marital intercourse, the husband must prove a negative of no access by either spouse, and the presumption can be displaced only by a strong preponderance of evidence, thereby affirming the first appellate court's decision.

Summary

Smt. Kanti Devi and her husband Poshi Ram were married in 1975 and a child was born to her in 1989 after fifteen years of childlessness. The husband filed a suit seeking a declaration that he was not the father, alleging that he had no access to his wife at the time of conception, thereby attempting to rebut the conclusive presumption of legitimacy under Section 112 of the Evidence Act. The trial court dismissed the suit, but the first appellate court allowed the husband, finding that he had proved lack of access; the High Court refused to interfere on the ground that the issue was a pure question of fact. On appeal, the Supreme Court examined the meaning of "access" in Section 112, held that it means merely the opportunity for marital intercourse, and that the husband bears the burden to prove a negative of no access by either spouse. The Court further held that the standard of proof required to overturn the presumption must be a strong preponderance of evidence—higher than ordinary preponderance but short of criminal beyond‑reasonable‑doubt. Consequently, the Supreme Court dismissed the appeal, upholding the first appellate court's finding.

Issues considered

The true import of the word "access" in Section 112 of the Evidence Act, 1872.
Who bears the burden of proof to rebut the conclusive presumption of legitimacy under Section 112.
The standard of proof required to rebut the presumption: beyond reasonable doubt, preponderance of probabilities, or an intermediate standard.
Whether the High Court could interfere with the factual finding of the first appellate court on the issue of non‑access.

Legislation cited

Indian Evidence Act, 1872s. 112, s. 4

Subjects

Section 112presumption of legitimacypaternityaccessburden of proofstandard of proofDNA testconclusive presumptioncivil procedurechild legitimacy

Judgment

SMT. KANT! DEVI AND ANR. A
v.
POSHI RAM

MAY 11, 2001

[K.T. THOMAS AND R.P. SETHI, JJ.J B

Evidence Act, 1872--Sections 4 and 112-Child born after 15 years of
marriage-Husband filed a suit for a declaration de1~ving his paternity due
to nun-access to the wife-Trial Court dismissed sitit-Firsl Appellate Court C
reversed the orderjinding the presumption successfully reb111ted-lnte1ference
refused in second appeal as a pure question offact was involved-On appeal
Held, legislative concern is to legitimize a child who should not suffer social
disability on account of /aches or lapses ofparenls-Rebutling the presumption
is the only outlet to the party to escape conclusiveness of proof, which
remains firm even if modern scientific tests prove the contra1y-Standard of D
proof in such cases must be a degree between the test of proof beyond
reasonable doubt and preponderance of probabilities-First Appellate Court
was fully satisfied while holding that the presumption was successfully
rebutted and such a finding cannot be inte1fered with in second appeal.

Word5 and Phrases-Meaning of "access" in the context of Evidence E
Act, 1872-Section 112.

Appellant is the wife of the respondent. They were married in 1975 but
remained childless for about 15 years. A lot of matrimonial litigation lingered
on between them during this period. However, a child was born to the appellant F
in 1989. Respondent filed a suit for a declaration that he was not the father
of that child, due to non-access to the appellant, rebutting the presumption
under Section 112 of the Evidence Act. Trial Court dismissed the suit. First
Appellate Court allowed the appeal of the respomlent. High Court refused to
interfere in the second appeal filed by the appellant as a pure question of fact
was involved. Hence this appeal. G
Appellant contended that First Appellate Court wrongly relied on the
interested e\·idence of the husband that the High Court failed to formulate
the substantial question of law as to whether the burden to prove non-acctss
to wife is as heavy as the burden of prosecution in a criminal case to prov~
n9 H
1
730 SUPREME COURT REPORTS [2001] 3 S.C.R.
I

Dismissing the appeal, the Court

HELD : 1. The true import of the word "access" in Section 112 of the
Evidence Act cannotes only existence of opportunity for marital intercourse.
B 1733-El

Chilukuri Venkateswtirlu v. Ch.ilukuri Venkatanarayan, [19541 SCR
424, followed.

Karappayya Severai v. Mayandi, A.IR (1934) PC 49, referred to.

C 2. Section 112 itself provides an outlet to the·party who wants to escape
from the rigour of conclusiveness of proof under Section 4 of the Act, if it
can be shown that the parties h.ad no access to each other at the tihie when
the child could have been begotten. The party who wants to dislodge the
conclusiveness and rebut the presumption has the burden to show a negative,
not merely that he did not have the opportunity to approach his wife but that
D she too did not have the opportunity of approaching him during the relevant
time. The rule of evidence in other instances is that the burden is on the party
who asserts the positive, but in this instance the burden is cast on the party
who pleads the negative. The raison d'etre is the legislative'concern against
illegitimatizing a child a·nd that he should not suffer social disability on
E account of the laches or lapses of parents. 1734-A-q

3. Section 112 was enacted at a ·time when the modern ·scientific
advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid
(RNA) tests were not even in contemplation of the legislature. The result of
a_genuine DNA test is said to be scientifically accurate, ~ut even that is not
F enough to escape from the conclusiveness of Section .112 of the Act: If a
husban!l-·-and wife\ were living
t
together during
.,
the time
,.
of conception
'
but the
DNA test revealed that the c·hild was not born to.the husband, the
' ' '
conclusiveness in law.would remain unrebuttable. This may loo,k hard from
the point of~iew of the husband who would be compeiled to bea~ the fathe~hood
of a child of which he may be innocen't. But even in' such a. c.a.se t.he law leans
G in favour of the innocent child from being bastardized if his mother and her
spouse were living together during the time of.conception. 1734-D-El

4. The sta;1dard of p~oof of prosecution to pr'.ove the guilt beyond any
reasonable doubt belongs ,to .criminal jurisprudence whereas the test of
H preponderance of probabilities belongs to civil cases. The reason for insisting
SMT. KANT! DEVI v. POSH! RAM [THOMAS, .I.] 731

on proof beyond reasonable doubt in criminal cases is to guard against innocent A
being convicted and sent to jail if not to extreme penalty of death. It would be
. ~ too hard if that standard is imported in a civil case for a husband to prove
non-access as the very concept of non-access is negative in nature. But at the
same time the test of prepondennce of probability is too light as that might
expose many children to the peril of being illegitimatized. Therefore, by way B
of abundant caution and as a matter of public policy, law cannot afford to any
ill-consequence befalling an innocent child on the strength of a mere tilting
of probability. Its corollary is that the burden of the husband should be higher
than the standard of preponderance of probabilities. The standard of proof in
such cases must at least be of a degree in between the two as to ensure that
there was no possibility of the child being conceived through the husband. C
1734-G-H; 735-A-BI

Smt. DuktarJahan v. Mohammed Farooq, (19871ISCC624, followed.

Gautam Kundu v. State of West Bengal, (1993) 3 SCC 418, relied on.

5. The conclusion rebutting the presumption was reached on the D
strength of the evidence adduced by both sides and the first appellate court
was satisfied in a full measure that the respondent ha~ no opportunity
whatsoever to have liaison with the appellant. The finding thus reached by the
first appellate court cannot be interfered with in a second appeal, as no
substantial question of law would have flowed out of such a finding. (735-GI E

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3860 of2001.

From the Judgment and Order dated 8.9.99 of the Himachal Pradesh
High Court in R.S.A. No. 289 of 1999.

Jana Kalyan Das (SCLSC) for ·the Appellants. F
The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

Wh~t i~ the standard of .proof req~ired to dis.place the c~nclusive G
presumption m favour of paternity of a child born durmg 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 quern 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 H
732 SUPREME COURT REPORTS [2001] 3 S.C.R.

A 112 of the Evidence Act (for short 'the Act). It is based on the English rule
tha( 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:

B "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
c other at any time when he could have been begotten."

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 mother's
D husband, but it excludes the birth happened just one day after t}le 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-
E plaintiff has discharged his burden of proof and consequently the presumption
stood rebutted. The facts which led to the said finding are the following:

The ·marriage between appellant Kamti Devi and respondent Posh i 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
F name is Roshan Lal). The long period in between was marked by internecine
legal battles in which the spouses engaged as agai·nst 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
G no access to the appellant Kamti Devi during the period when the child would
have been begotten.

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
H 112 of the Act. The trial court further held that the husband failed to prove
SMT. KANT! DEVI v. POSHI RAM [THOMAS, J.) 733
that he has no access to his wi:e Kamti Devi during the relevant period. A
Accordingly the suit was dismissed .
. J<
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 peri_od. B
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 Lal is
the son of the plaintiff is a pure question of fact which calls for no interference C
by the Court in the second appeal under Section I 00 of the Code of Civil
Procedure.

Learned counsel for the appellant raised two contentions. First is that
the District Court went wrong in relying on the interested evidence of the
plaintiff. Second is that the High Court failed in formulating the substantial D
question of law involved in this case as to whether the burden of a husband-
plaintiff (to prove that he had no access to his wife) is as heavy as the burden
of prosecution in a criminal case to prove the guilt of the accused.

Earlier there was a controversy as· to what is the true import of the word
"access" in Section 112 of the Act. Some High Courts held that access means E
actual sexual intercourse between the spouses. However, the controversy
, came to a rest when the privy Council held in Karapaya Severai v. Mayandi,
AIR (1934) PC 49 that the word "access" connotes only existence of
opportunity for marital intercourse. The said legal principle gained approval
of this Court when a three judge bench had held Chilukuri Venkateswarlu F
v. Chilukuri Venkatanarayana, (1954] SCR 424 that the law has been correctly
laid down therein.

When the legislature chose to employ the expression that a certain fact
"shall be conclusive proof' of another fact, normally the parties are disabled
from disrupting such proof. This can be discerned from the definition of the G
expression "conclusive presumption" in Section 4 of the Act.

"Conclusive proof. -When one fact is declared by this Act to be
conclusive proof of another, the Court shall, on proof of the one fact,
regard the other as proved, and shall not allow evidence to be given H
for the purpose of disproving it."
734 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A But Section 112 itself provides an outlet to the party who wants to
escape from the rigour of that conclusiveness. The said outlet is, if it can be
shown that the parties had no access to each other at the time when the child
could have been begotten the presumption could be rebutted. In other words,
the party who wants to dislodge the conclusiveness has the burden to show
a negative, not merely that he did not have the opportunity to approach his
B wife but that she too did not have the opportunity of approaching him during
the relevant time. Normally, the rule of evidence in other instances is that the
burden is on the party who asserts the positive, but in this instance the
burden is cast on the party who pleads the negative. Th.e raison d'etre is the
legislative concern against illegitimatizing a child. It is a sublime public policy
C that children should not suffer social disability on.account of the !aches or
lapses of parents.

We may remember that Section 112 of the Evidence Act was enacted
at a time when the modern scientific advancements with Dioxy Nucleic Acid
(DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation
D of the legislature. The result of a genuine DNA test is said to be scientifically
accurate. But even that is not enough to escape from the conclusiveness of
Section 112 of the Act, e.g. if a husband and wife were living together during
the time of conception but ,the DNA test revealed that the child was not born
to the husband, the conclusiveness in law would remain unrebuttable. This
£ may look hard from the point of view of the husband who would be compelled
1

to bear the fatherhood of a child of which he may be innocent. But even in
such a case the law leans in favour of the innocent child from being bastardized
if his mother and her spouse were living together during the time of conception.
Hence the question regarding the degree of proof of non-access for rebutting
the conclusiveness must be answered in the light of what is meant by access
F or non-access as delif!eated above.
Whether the burden on the husband is as hard as the prosecution to
prove the guilt of the accused in a trial deserves consideration in the above
background. The standard of proof of prosecution to prove the guilt beyond
G any reasonable doubt belongs to criminal jurisprudence whereas the test of
preponderance of probabilities belongs to civil cases. The reason for insisting
on proof beyond reasonable doubt in criminal cases is to guard against
innocent being convicted and sent to jail if not to exveme penalty of death.
It would be too hard if that standard is imported in a civil case for a husband
to prove non-access as the very concept of non-access is negative in nature.
H But at the same time the test of preponderance of probability is too light as
SMT. KANTI DEVI v. POSHI RAM [THOMAS, J.] 735
that might expose many children fo the peril of being illegitimatised. If a court A
declares that the husband is not the father of his wife's child, without tracing·
out its real father the fall out on the child is ruinous apart from all the
ignominy visiting his mother. The bastardized child, when grows up would be
socially ostracised and can easily fall into wayward life. Hence, by way of
abundant caution and as a matter of public policy, law cannot afford to allow
such consequence befalling an innocent child on the strength of a mere tilting B
of probability. Its corollary is that the burden of the plaintiff-husband should
be higher than the standard of preponderance of probabilities. The standard
of proof in such cases must at least be of a degree in between the two as
to ensure that there was no possibility of the child being conceived through
the plaintiff-husband. C
In Gautam Kundu v. State of West Bengal, [1993] 3 SCC 418 this Court
after considering an early three-Judge Bench decision in Smt. Dukhtar Jahan
v. Mohammed Farooq, [1987] l SCC 624 held that "this presumption can only
be displaced by 'a strong preponderance of evidence, and not by a mere
bala~e _of probabilities." D
In the present case the first appellate~urt, which is the final fact
finding court, after evaluating the entire evidence, came to the following
conclusion: .
/.
"In the present case the plaintiff has examined all the evidence which
he possibly could do in the circumstances. He has proved by E
convincing evidence, that he did not visit his village or house where
the defendant was allotted one room. He has further proved that the
defendant also never visited him at Mandi where he had been living
for more than 2 year before the child was born to Kamti Devi. In other
words he has proved that he had no access or opportunity for sexual p
intercourse with defendant No. I for more than 280 days before Roshan
Lal (defendant No.2) was begotten by the defendant No. I"
The said conclusion was reached on the strength of the evidence
adduced by both sides and the first appellate court was satisfied in a full
measure that the plaintiff-husband had no opportunity whatsoever to have G
liaison with the defendant mother. The finding thus reached by the first
appellate court cannot be interfered with in a secon<;l appeal as no substantial
question of law would have flowed out of such a finding.
,., In the result we dismiss this appeal.
A.Q. Appeal dismissed. H