H Divorces his wife W in the month of December 2004. W gets married to A in the month of January 2005 and delivers a child in the month of May 2005. A disowns the child. Can it be claimed that C is the legitimate son of A.

Question: H Divorces his wife W in the month of December 2004. W gets married to A in the month of January 2005 and delivers a child in the month of May 2005. A disowns the child. Can it be claimed that C is the legitimate son of A. [D.J.S. 2006]

Find the answer to the mains question only on Legal Bites. [H Divorces his wife W in the month of December 2004. W gets married to A in the month of January 2005 and delivers a child in the month of May 2005. A disowns the child. Can it be claimed that C is the legitimate son of A.]

Answer

Yes, C can be claimed as the legitimate son of A.

Maternity admits positive proof, but paternity is a matter of inferences. The connection of a child with his father is secret but it may be ascertained by the subsisting facts. It is a legally constituted relation between him and the mother of the child. To be clear it is known to everybody that maternity is a fact and paternity is a surmise. It can be said with certainty as to which woman gave birth to a particular individual but it is impossible to say as to who was that man from whom the mother be got the child.

In this regard, Section 112 of the Indian Evidence Act lays down the rule for the proof of the paternity of an individual. This section lays down that if:

1. the child is born during the continuance of valid marriage between the mother and a man or
2. within 280 days after the dissolution of the marriage, the mother remaining unmarried
3. it shall be presumed that the child is a legitimate son of that man
4. unless and until it is shown that the parties to the marriage had no access to each other any time when the child would have been begotten.

The Supreme Court considered the meaning of the word “access” in Kamti Devi v. Poshi Ram [AIR 2001 SC 2226] Thomas J. said: Earlier there was a controversy as to what is the true import of the word “access”. Some High Courts held that access means actual sexual intercourse between the spouses. However, the controversy came to a rest when the Privy Council held in Karapaya Servai v. Mayandi, [AIR 1934 PC 49] that the word ‘access’ connotes only the existence of an opportunity for marital intercourse.

As held in Asiya v. Hameed, [AIR 2009 Ker 163], a rebuttal of the presumption of legitimacy can be solely on the ground of non-access and not in any other manner. Access connotes opportunity for coitus. It can be established by direct evidence of positive nature or by circumstantial evidence of cogent and conclusive nature.

Section 112 of the Evidence Act provides for a presumption of a child being legitimate and such a presumption can only be displaced by a strong preponderance of evidence and not merely by a balance of probabilities as the law has to live in favour of an innocent child from being bastardised.

In the given case Bharatha Matha v. R Vijaya Renganathan, (2010) 11 SCC 483, as the proof of non-access between spouses had never been even pleaded, the matter was not examined by the High Court in correct perspective. It was held by Supreme Court that as per the settled legal proposition, proof of non-access between the parties to marriage during the relevant period is the only way to rebut that presumption.

Therefore, in the present case at hand, where H Divorces his wife W in the month of December 2004 and W gets married to A in the month of January 2005 and delivers a child in the month of May 2005. It can be claimed by virtue of provisions of section 112, Indian Evidence Act that C is the legitimate son of A as the child is born out of legally valid marriage when both the W and A had access to each other.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X