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Kerala High Court on DNA Testing and marriage with a pregnant woman voidable.

In this refreshing judgment on S.112, the court held that in a case where a person seeks to avoid marriage on ground of marrying a woman enciente (i.e pregnant at time of marriage from somebody else) The conclusive presumption of S.112 Indian Evidence Act won’t apply and person won’t be compelled to father a child biologically proved to be not his own. 

Earlier Courts, ironically had held that even DNA reports if prove that a child is not biologically child of a man S.112 conclusive presumption would not be overcome by that and child would be legitimate child of man married to his mother. 

The court also held that S.112 allowed that a man could seek to avoid this conclusive presumption by giving proof of non access. THe court held that DNA test can be taken as proof of non access and S.112 can be avoided in appropriate cases. 

 

This judgment is courtesy http://www.lawker.in

Rajesh Francis Vs. Preethi Roslin

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

 R. Basant & K. Surendra Mohan, JJ.

Mat.A. No. 75 of 2008

Dated this the 13th day of April, 2012

R. Basant. J.

Mat. Appeal No.75 of 2008:

(i) Has not the appellant succeeded in proving that his wife/the respondent was pregnant through another when she entered matrimony with him?

 

(ii) Is he not entitled for a decree of nullity of marriage under Section 19 of the Divorce Act on the ground that his consent for marriage is vitiated by fraud?

 

(iii) Is it fair, just and reasonable to expect him to produce still better evidence to substantiate his claim?

 

These questions are raised for our consideration by Sri.S. Sreekumar, the learned senior counsel for the appellant in this appeal.

 

2. Facts are simple. Parties are Christians by religion. Theirs was a traditional arranged marriage in accordance with the customary religious rites. The betrothal took place on 05-05-2003. The marriage was solemnized on 17-05-2003. They lived together with ample opportunity for physical access after their marriage. It was realised that she was pregnant. Doctor was consulted. Urine test confirmed pregnancy. USG scan was taken on 26-06-2003. It showed that the gestational age of the foetus was 61 days (8 weeks and 5 days) on 26-06-2003. She gave birth to a healthy baby on 06-01-2004. The husband and his relatives entertained a serious doubt whether the respondent/wife had actually conceived in her relationship with the appellant. It allegedly dawned on them that the respondent/wife must have been pregnant through another on the date of her marriage with the appellant.

 

3. The appellant on 16-01-2004 filed a petition for declaration of nullity under Section 18 of the Divorce Act on the ground that his consent for marriage was vitiated by fraud. He was not aware of the fact that she was pregnant through another on the date of his marriage. He would not have consented if this information were revealed/available to him. He prayed that his marriage may be declared to be null and void.

 

4. The respondent resisted the prayer for declaration of nullity of marriage. She was not pregnant on the date of her marriage with the appellant. She had conceived only after the solemnization of her marriage with the appellant. The child was conceived in her physical relationship with the appellant. The child born on 06-01-2004 was a premature child and the child was born in valid matrimony. The respondent invoked conclusive presumption under Section 112 of the Evidence Act contend that the child was legitimate. Paternity and legitimacy have to be conclusively presumed, it was contended. Access after the date of marriage having not been disputed and heavy burden on the appellant to dislodge the presumption under Section 112 of the Evidence Act by the only method of proving non-access having not been discharged, the claim for declaration of nullity must fail, it was contended. It was prayed that the petition may be dismissed.

 

5. Parties went to trial on these contentions. On the side of the appellant/petitioner before the Family Court PWs 1 to 3 were examined and Exts. A1 to A5 were marked. On the side of the respondent, RW 1 was examined and Exts. B1 and B2 were marked. Exts. X1 and X2 were also marked as court Exhibits by consent.

 

6. Ext. X1 is the D.N.A. test report obtained from the Rajeev Gandhi Centre for Bio-technology at Trivandrum dated 04-01-2005. After receipt of that report, the respondent claimed that a further test must be conducted. When her prayer was rejected by the Family Court, she came to this Court and obtained judgment dated 14-10-2005 in W.P. (C) No. 28841 of 2005 in her favour. Thereafter an Advocate Commissioner was appointed and the parties were taken to Hydrabad to the Central Forensic Science Laboratory. It was thereafter that Ext. X2 DNA report was obtained. Both Exts.X1 and X2 showed that the appellant was not the biological father of the child born to the respondent after marriage.

 

7. Before this Court, PW 2 was recalled and examined. PWs 4 and 5 were examined and Exts. A6 and A7 issued by PWs 4 and 5 respectively were marked. RW 2 was examined on the side of the respondent. This Court felt that certain clarifications were required and that is how further evidence was permitted to be adduced before this Court under Order 41 Rule 27 CPC.

 

8. Arguments have been advanced by the learned counsel for the rival contestants. As we felt that certain interesting questions are raised for consideration, we requested Advocate Sri. C.S. Dias to help this Court as Amicus Curiae. We place on record our appreciation of the efforts taken by the learned counsel including the Amicus Curiae to help this Court in the disposal of this case.

 

9. Before coming to the specific factual controversy as to whether it has been proved satisfactorily that the respondent was pregnant on the date of her marriage with the appellant, it will be appropriate, we feel, to refer to certain questions of law that have been raised. We shall initially discuss such questions raised and shall later proceed to consider the factual dispute specifically raised.

 

10. Declaration of nullity is claimed under Section 18 of the Divorce Act. The provisions relating to nullity of marriage appear in Chapter IV of the Divorce Act. Sections 18 to 21 are available in that Chapter. We are primarily concerned with Sections 18 and 19. Section 20 stands deleted.

11. We extract Section 18 and 19 of the Divorce Act below:

18. Petition for decree of nullity.- Any husband or wife may present a petition to the District Court praying that his or her marriage may be declared null and void. 

19. Grounds of decree.- Such decree may be made on any of the following grounds:- 

(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit; 

(2) that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity; 

(3) that either party was a lunatic or idiot at the time of the marriage; 

(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force. 

Nothing in this section shall affect the [jurisdiction of the District Court] to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.” 

(emphasis supplied)

 

12. We are in this case concerned not with any of the four grounds specifically enumerated in Section 19. Divorce is claimed on the residuary ground in Section 19 emphasised above.

 

13. The claim for nullity is staked by the appellant on the ground that his consent for marriage was obtained by fraud. This plea is founded on the factual allegation that his wife/the respondent was pregnant on the date of marriage. The first question to be considered is whether the facts, if proved, would justify the grant of a decree for nullity under Section 19.

 

14. It will be apposite to refer to Section 12(1)(d) of the Hindu Marriage Act and Section  25(2) of the Special Marriage Act which we extract below:

12. Voidable marriages.- (1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- 

x x x x x x 

x x x x x x 

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.” 

25. Voidable marriages.—Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if,– 

x x x x x 

x x x x x 

x x x x x 

(2) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or”

15. A specific statutory provision entitling a husband for a decree for nullity of marriage on the ground that his wife was pregnant through another on the date of marriage is significantly absent in the Divorce Act. Though specific provisions have been made in Section 12(1)(d) of the Hindu Marriage Act and Section 25(2) of the Special Marriage Act incorporating such a ground for declaration of nullity of marriage, such a provision is significantly absent even today under the Divorce Act. By subsequent amendment also, such a stipulation has not been specifically incorporated. This obliges the appellant now to fall back on the residuary saving clause in Section 19 to claim a decree for declaration of nullity of marriage.

 

16. Our attention has been drawn to the decision in D.M. Raju Vs. S. Janaki, AIR 1974 Mysore 61.

 

17. Section 7 of the Divorce Act stands repealed now and therefore the fact that the Matrimonial Causes Act, 1937 in England subsequently recognizes and concedes the right of a husband for a declaration of nullity on that ground is of no significance. Divorce can be granted on the ground raised in this petition only if this Court is convinced that the consent of the appellant for marriage was vitiated because of fraud.

 

18. That takes us to the question as to what is fraud in matrimonial law? It is pointed out to this Court that even accepting the entire case of the appellant as gospel truth the respondent was not pregnant on the date of betrothal i.e, 05-05-2003 Consent for marriage was given on that day and on that day even going by the version of the appellant, the respondent was not pregnant. There is nothing to show that the respondent was aware of the fact that she was pregnant on the date of betrothal or on the date of marriage. In these circumstances, there can be no element of fraud. Reliance is placed on the definition of “fraud” in other Statutes to contend that unless the respondent were actually aware of the fact that she was pregnant, she cannot be held to be guilty of any fraudulent misrepresentation or fraudulent suppression of facts.

 

19. This evidently must have been the reason why under Section 12 of the Hindu Marriage Act and Section 25 of the Special Marriage Act a separate ground was recognized entitling the husband for a declaration of nullity of marriage. Because of such provisions in the said Statutes, it is not necessary under those Statutes for the husbands in similar circumstances to prove fraud vitiating their consent to marriage. In the absence of such a provision in the Divorce Act, strict proof of fraud vitiating matrimonial consent has to be insisted. If the respondent herself did not know that she was pregnant, there can be no valid contention of fraud vitiating consent, submits the learned counsel for the respondent.

 

20. We have rendered our anxious consideration to this contention. It is perhaps unfortunate that the mandate of Article 44 of the Constitution for a uniform civil code for the polity has not been translated into the tangible reality even in this 7th decade after the adoption of the Constitution. In a secular democratic republic, in respect of most citizens religion is nothing but an accident of birth. There is no choice for the individual. Discrimination on the grounds of divorce merely because of such accident of birth for which the citizen is not responsible is certainly unjust and constitutionally unacceptable. In this context, we note that the mandate under Part IV of the Constitution is to all instrumentalities of the State and the adjudicator/interpreter exercising sovereign functions is no exception to that mandate. Wherever there is elbow room for an adjudicator/interpreter, he must seize the opportunity readily to put into reality the mandate of Article 44 of the Constitution. Interpretationally it is certainly permissible to bring in uniform provisions in personal laws at least in certain areas. So reckoned, we deem it absolutely permissible to understand the residuary stipulation in Section 19 to permit a declaration of nullity on the ground that the consent for marriage was vitiated – for the reason that the wife was pregnant through any other on the date of marriage. The proof of that crucial fact, in the absence of pleading and proof that the husband had consciously acceded to that situation, can certainly be reckoned as sufficient to entitle a husband for a decree for declaration of nullity. In the absence of such explanation, on proof of such pregnancy, fraud for the purpose of Section 19 can safely be held to be established.

 

21. It is true that fornication (pre-marital sexual/physical relationship) may by itself not amount to fraud in matrimonial law to justify a claim for declaration of nullity of marriage. If that be so, the mere fact that a wife in such pre-marital sexual intercourse had become pregnant, even without her being aware of the same, cannot operate as a plank for declaration of nullity for the reason that the consent of the husband to such marriage was vitiated, it is suggested. ‘Fraud’ in law must take in moral contumaciousness or depravity. Wilful representation of falsity or suppression of truth must be shown to exist. If fornication is not a ground, how can unanticipated conception without even awareness of that fact expose the wife to the charge of fraud? How can such a wife be held to be guilty of fraud, it is queried. The argument sounds impressive at the first blush; but cannot certainly stand closer scrutiny. We will assume the worst. Pre­marital sexual intercourse may be common or may not be uncommon in the modern context. That may not by itself be a ground to vitiate a marriage on the ground of fraud. Virginity is not insisted by law for either spouse as one of the requisites of a valid first marriage. But accepting all this, we are unable to agree that the fact of pregnancy through any other on the date of marriage ipso facto will not entitle the husband for a declaration of nullity. Societal realities have got to be accepted. A husband, in the absence of his conscious acceptance, cannot be compelled to enter matrimony with the burden of a foetus growing in the womb of his wife through another, conceived prior to the marriage. It is easy for law to assume that this constitutes fraud in matrimonial law. It is not necessary to insist on proof that the wife was aware of such pregnancy on the date of marriage. At least the burden is on her, it can safely be assumed, to ensure and satisfy herself that she is not pregnant through any other on the date of marriage. If she enters matrimony without verifying and confirming that she was not pregnant through any other on the date of marriage, that can itself be safely reckoned as an act of fraud constituting a ground vitiating the consent of the husband in marriage.

 

22. The definition of ‘fraud’ under Section 17 of the Indian Contract Act need be mechanically and blindly be imported into matrimonial law. Any wife, who has had premarital sex and who has got impregnated in fact, whether to her confirmed knowledge or not, and who enters matrimony without confirming that she is not pregnant, can, according to us, be safely held to be guilty of fraud in matrimonial law. The consent given by her unfortunate husband for such marriage can certainly be held to be vitiated by fraud, even in the absence of evidence of her knowledge of her pregnancy. It is absolutely safe to assume that no husband would have consented to matrimony if he had even a remote inkling of such pregnancy of his wife through another on the date of his marriage. His consent for such marriage can hence safely be held to be vitiated by fraud, unless there is plea and evidence that he consciously acceded to that situation.

 

23. Such an interpretation, we are satisfied, would bring in uniformity in the provisions relating to declaration of nullity of marriage under the Hindu marriage Act, Special marriage Act and the Divorce Act. Such interpretation, we have no hesitation has got to be preferred, consistent with the mandate of Article 44 the Constitution.

 

24. We find no merit in the contention that on the date engagement/betrothal the wife had not admittedly conceived consent for matrimony contemplated under Section 19 is certainly not the consent at the time of betrothal. It refers evidently to the consent on the date of marriage. That the wife may have become pregnant after the date of betrothal; but before the date of marriage, even without her own awareness of the fact of such pregnancy cannot certainly be reckoned as a ground defeating the claim for nullity under Section 19 of the Divorce Act. This contention cannot, in these circumstances, be accepted. To avoid any misgiving, we make it clear that the wife/respondent has not raised such a specific contention. She has no contention that she had become pregnant after betrothal but before marriage. In our anxiety to understand the law correctly, questions were raised and the learned counsel and the Amicus Curiae advanced arguments on this aspect of law.

 

25. We now proceed to consider the next disputed question raised whether the presumption of legitimacy under Section 112 of the Evidence Act can or cannot be invoked while deciding a claim for nullity on the ground that the wife was pregnant through any other on the date of marriage.

 

26. The contention raised, which contention appears to have been accepted by the court below, is that invoking the presumption under Section 112 a conclusive finding on legitimacy (and paternity) of the child born after marriage can be drawn. If that be so it defeats the contention that the wife had conceived through any other on the date of marriage.

 

27. This question deserves to be considered carefully. We must first have a look at Section 112 of the Evidence Act. We extract the same below:

 

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.” 

(emphasis supplied)

 

28. There is a contention raised initially that the Family Court need not consider itself to be bound by Section 112 of the Evidence Act. We shall first of all consider that contention. This contention is raised with the help of Section 14 of the Family Courts Act. We extract Section 14 below:

 

14. Application of Indian Evidence Act, 1872.- A Family Court may receive as evidence any report statement documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act 1872 (1 of 1872).” 

(emphasis supplied)

 

29. It is true that under Section 14 certain materials can be permitted to be received in evidence by the Family Court whether the same would be relevant and admissible or not, under the Indian Evidence Act. The general and sweeping language used in Section 14 prompts the counsel to contend that the Family Court is not bound by and can even ignore Section 112. We are unable to agree. Section 112 of the Evidence Act incorporates a presumption which is part of the substantive law of this country. The enabling provision under Section 14 of the Family Courts Act which permits the Family Court, considering the nature of the mission/task before it, to ignore the procedural stipulations and avoid unnecessary bottlenecks cannot, according to us, certainly be construed as a permission or licence to ignore a fundamental substantive statutory stipulation like the one in Section 112 of the Evidence Act. We are, in these circumstances, unable to accept that the Family Courts, in view of the provisions of Section 14 can consider themselves to be not bound by Section 112 of the Evidence Act. If that be so, it would be death knell of the said statutory stipulation. We fail to understand which court can be held to be bound by Section 112 if the Family Courts were to be held to be not bound by the said statutory provision. The very purpose of the provision would be frustrated. It is before the Family Court that the aid of the presumption would be most necessary.

 

30. Notwithstanding the wide sweep of the language used in Section 14, we reject the contention raised that the Family Courts need not consider themselves to be bound by Section 112. Considering the purpose, object and scheme of the Family Courts Act, notwithstanding the sweeping semantics employed in Section 14, we take the view that the stipulation is merely procedural and cannot permit the Family Courts to ignore fundamental and basic stipulations of law which are substantive in nature. This contention raised must hence fail.

 

31. Section 112 mandates that there must be a valid marriage. The section expressly stipulates so. Binding precedents are galore about the basis of the presumption under Section 112. The provision obviously has its foundation on public policy. Law leans in favour of the presumption of legitimacy of a child born in lawful wed-lock. This principle finds statutory recognition in Section 112 of the Evidence Act. The presumption is conclusive, unless it is rebutted in the only manner contemplated in the section. This is based on the principle “that he is the father whom the nuptials show to be so or the marriage indicates”. This presumption is the foundation of every man’s birth and status. It is a sensible presumption of law and is the pivot on which rests the entire fabric of the society.

 

32. It is fundamental and axiomatic that valid marriage must be proved before the presumption under Section 12 can be invoked. Proof of valid marriage is sine qua non for invocation of the presumption under Section 112. Whatever the period of their cohabitation, however loyal and committed the partners may be to each other and however convincing the evidence of their faithful cohabitation may be, the presumption under Section 112 cannot be invoked or drawn unless solemnization of valid marriage is proved. Proof of valid marriage is the bedrock on which the presumption under Section 112 is built.

 

33. Such a presumption cannot obviously have any role or play before the validity of the marriage is established. To establish the validity of such a marriage, the presumption under Section 112 cannot obviously be invoked. In a case like the instant one where the validity of the marriage is assailed on the ground that the wife was pregnant through another on the date of marriage, this presumption cannot have any play at all. It would be a classic instance of putting the cart before the horse, if this presumption were to be invoked for ascertaining the validity of the marriage itself. We have, in these circumstances, no hesitation to agree with the learned counsel for the appellant that the presumption under Section 112 cannot be invoked in a case where the very validity of the marriage is in question. Only after the validity of the marriage is considered and decided, the presumption under Section 112 can be invoked. To decide whether the marriage is valid or not, the presumption under Section 112 cannot obviously be invoked.

 

34. It is, of course, true that a decision on the validity of marriage on this ground (i.e, pregnancy through another on the date of the marriage) may have a reflection on the legitimacy of the child born. But that, according to us, is not a valid reason to justify invocation of the presumption under Section 112 in proceedings where validity of the marriage is impugned on the ground that the wife was pregnant through another on the date of the marriage. The question of responsibility for the pregnancy will certainly have to be ascertained otherwise – without the aid of the presumption under Section 112. We find certain observations of the Supreme Court on this aspect which justify our conclusion. In Mahendra Vs. Sushila, AIR 1965 SC 364 the Supreme Court did have an occasion to consider this aspect. The observations clearly indicate that the presumption under Section 112 though it is certain to affect the legitimacy of the child born, cannot be pressed into service while deciding the validity of marriage assailed on the ground of Section 12(1)(d) of the Hindu Marriage Act. We extract the relevant observations in paragraph-180:

 

“180. Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man 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. The question of the legitimacy of the child born to the respondent does not directly arise in this case, though the conclusion we have reached is certain to affect the legitimacy of the respondent’s daughter”

(emphasis supplied)

 

35. Of course, the Supreme Court had not specifically declared the law on this aspect; but the observations support and justify our conclusion that Section 112 cannot be called in aid by a wife to support her contention that she was not pregnant or that she had not already conceived through any other at the time of marriage. Whether the wife was pregnant on the date of the marriage and through whom, will certainly have to be considered on other factual inputs available and cannot certainly be decided on the basis of the conclusive presumption under Section 112 of the Evidence Act which we repeat comes into play only after a valid marriage in accordance with law is established. Even if the pregnancy got aborted, the ground for declaration of nullity under Section 12(1)(d) of the Hindu Marriage Act, Section 25(2) of the Special Marriage Act and Section 19 of the Divorce Act would still survive. The question cannot hence be considered in the light of the presumption of legitimacy under Section 112. The mere fact that the finding regarding pregnancy on the date of marriage may have an impact on the legitimacy (including paternity) of the child born cannot permit us to import the conclusive presumption under Section 112 into such adjudication regarding validity of marriage.

 

36. In this context we take note of the decision of a learned single Judge of this Court on this very question. In P.V. Sabu Vs. Mariakutty, AIR 1998 Ker. 86, Hon’ble Justice C.S. Rajan had considered this specific plea and had held thus in paragraph 18 which we extract below:

“18. Thus it can be safely inferred that Section 112 is applicable only if there is a valid marriage. If there was no valid marriage initially, there cannot be any scope for a presumption of legitimacy of the child. The presumption applies only when a child was born during the continuance of a valid marriage or within 280 days after the dissolution of the marriage and the mother remaining unmarried. If the presumption under Section 112 is stretched to other cases, anomaly may occur.” 

(emphasis supplied)

37. We are in complete agreement with the learned Judge on the above observations in paragraph 18. We have reservations to accept the opinion later in the said paragraph that access and non-access after the marriage alone is relevant under Section 112 of the Evidence Act. We shall consider that aspect later.

38. The above discussions lead us to the following firm conclusions of law.

(1) The fact that the wife was pregnant through another on the date of the marriage is ipso facto sufficient for a court to hold that the consent of the husband for the marriage is vitiated by fraud under Section 19 of the Divorce Act unless it is shown satisfactorily that the husband had acceded to the situation consciously. 

(2) This is so whether the wife was aware or not of the fact of such pregnancy and notwithstanding her honest impression that her sexual intercourse prior to marriage with any other had not led to conception. 

(3) Section 14 of the Family Courts Act does not permit the Family Courts to ignore the substantive conclusive presumption under Section 112 of the Evidence Act. The Family Courts are also bound by the conclusive presumption under Section 112 of the Evidence Act. 

(4) The presumption under Section 112 is not available when the validity of the marriage is itself questioned in proceedings under Section 12(1)(d) of the Hindu Marriage Act, Section 25(2) of the Special Marriage Act and Section 19 of the Divorce Act on the ground that consent of the husband for the marriage is vitiated by fraud for the reason that wife was pregnant through any other on the date of marriage. Proof of validity of marriage is sine qua non to invoke the conclusive presumption under Section 112 of the Evidence Act.

 

39. The learned counsel for the appellant submits that even assuming that Section 112 of the Evidence Act can be made use of by the respondent, the respondent is not entitled to succeed in persuading the court to draw any conclusive presumption regarding the paternity of the child. Various contentions are raised. Though the conclusions reached in paragraph 38 is sufficient for the purpose of adjudication of the lis in this appeal, we deem it appropriate to consider the contention raised.

 

40. First of all it is contended that Section 112 covers only legitimacy and not paternity. It is next (secondly) contended that the date on which the child would have been begotten has to be ascertained. When such elate of conception ascertained falls prior to the date of the marriage, the presumption under Section 112 will not be available to the respondent even in a case where valid marriage has taken place. It is further (thirdly) contended that in any view of the matter, in view of the D.N.A test results it can be concluded beyond the trace of any doubt that there was no possibility of access between the appellant and the respondent on the date when the child could have been begotten.

 

41. We shall now proceed to consider these three contentions raised by the appellant, though we remind ourselves and are conscious that the exercise is academic and not strictly necessary to resolve the controversy specifically raised.

 

42. We have considered the question whether the presumption under Section 112 of the Evidence Act can be held to be limited to legitimacy of the child born and whether it can be held that the conclusive presumption applies only to legitimacy and not to paternity of the child. The contention appears to be interesting and crucially relevant. When Section 112 was enacted by the legislature in 1872, science and technology had not developed to any significant extent. Authentic expert scientific evidence as to whether a person is the biological father of the offspring could not then be procured. However, with the advancements in the field of science and technology it is today possible to ascertain paternity authentically by indisputable scientific evidence. In this context the question arises whether a distinction can be drawn between legitimacy and paternity in the operation of Section 112. We certainly consider the question to be very interesting. The presumption, the heading of the section shows is only regarding legitimacy. The semantics employed by the legislature also suggests that the presumption specifically is only regarding legitimacy. Is it possible to exclude paternity from the concept of legitimacy? What would remain and be left in the concept of legitimacy if we were to exclude paternity from the same? It is possible to take the view that legitimacy is permitted to be presumed for certain legal consequences that must follow. In that view of the matter paternity can be distinguished from legitimacy. It is not theoretically impossible for a presumed “legitimate” father to be not the biological father. Legitimacy might bring in legal consequences and obligations. When paternity can be ascertained authentically it would be perfectly permissible, nay laudable, to distinguish between legitimacy and paternity. In most cases legitimacy of a child must include the concept of paternity also. But the two concepts – legitimacy and paternity do not certainly cover the same field entirely. If such a view were taken, we do note that the presumption of legitimacy can certainly exist for certain purposes in the interest of the offspring, excluding the traumatic unjustified presumption regarding paternity against the man where paternity is contra indicated convincingly by scientific evidence. Such an interpretation, we feel, can certainly harmonise the interests of a child regarding whose legitimacy Section 112 can be called in aid and at the same time avoid the trauma of an unfavourable finding regarding paternity when such finding is factually oppressive and unjust. This question, it appears to us, is only academic in this case and it is unnecessary to record any final conclusion on that question. We need only observe that it appears to be theoretically possible to distinguish between legitimacy and paternity and thereby render Section 112 more congruent to the needs of a knowledge society where authentic ascertainment of paternity is factually possible by scientific inputs without at the same time compromising on the interests of a child born in matrimony. We leave the question there accepting that there is a clear distinction possible under Section 112 of the Evidence Act between legitimacy and paternity. We do take note of the observations on this aspect by a learned single Judge of the Delhi High Court Sri. Justice Ravindra Bhat, in paragraphs 26 and 27 in Rohit Shekhar Vs. Narayan Dutt Tiwari and Another, MANU/DE/3701/2010.

 

43. The next aspect to be considered is about the importance of the expression “at any time when the child could have been begotten”. Section 112 incorporates a conclusive presumption regarding legitimacy of the offspring if such child is born during the continuance of a valid marriage between the mother of the child and any person. The period during which the presumption operates is the entire period during continuance of a valid marriage and 280 days after its dissolution, the mother remaining unmarried. If the child is born during the specified period, the presumption operates. If the mother is married to another immediately after the dissolution of marriage and a child is born after such remarriage, the child will be presumed to be the child of the subsequent husband unless it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.

 

44. What perhaps deserves to be noted is that there is no exclusion of any initial period immediately following the marriage to justify invocation of the presumption under Section 112. Even if the child is born on the very next day after the marriage, Section 112 operates with vigour and the presumption of legitimacy can be avoided only by proof of non-access. We do not agree with the learned Judge who in P. V. Sabu (supra) observed that access after matrimony alone is relevant under Section 112. What we intend to note is that it is important to ascertain the date on which the child could have been begotten for a proper operation of Section 112 of the Evidence Act. In a given case if it is shown that the child was begotten on a day prior to marriage and there is no possibility of sexual access between the man and woman prior to marriage, as admitted in this case, the conclusive presumption cannot be invoked. Otherwise, the presumption does certainly operate. The legislature evidently appears to have chosen not to exclude any minimum period immediately after the marriage advisedly. That appears to be done consciously to protect the interests of the children conceived in pre-marital sexual intercourse of parents who enter formal matrimony subsequently with awareness of pre-marital conception. We need only observe that the evidence of access will very strictly be insisted by any prudent mind for the pre-marriage period, in a case where the date of conception is proved to be prior to the date of marriage.

 

45. When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Section 112. All we intend to note now is that even in a case where the presumption under Section 112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence – direct indirect circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period.

 

46. Access cannot be decided in a vacuum. Access on the date when the child could have been begotten has to be ascertained. Science and technology now permits the courts to precisely ascertain the date on which the fertilization of the sperm and ovum could have taken place. It is perfectly permissible even in a case where the presumption under Section 112 is sought to be drawn for the court to consider all evidence to ascertain the date on which the child in question could have been begotten. The age of the foetus can be authentically ascertained today with the help of scientific inputs. It is not necessary any more to rely merely on the oral evidence of the mother (or any one else) about the date of the LMP to ascertain the gestational age of the foetus. The period / date on which the child was begotten can be authentically and specifically ascertained. We repeat that access or non-access has to be considered with specific reference to the time when the child could have been begotten. The precise ascertainment of the date when the child could have been begotten is crucial in a case like the instant one. In this case there is no case that there was any sexual intercourse between the spouses prior to their marriage. That is the admitted case. If the child were begotten prior to the date of marriage, non-access is admitted. Therefore even if Section 112 were held to be applicable, if a safe finding is possible that the child was begotten prior to marriage, the presumption cannot be drawn in favour of legitimacy or paternity. That would be our answer to the second contention raised in law.

 

47. That takes us to the last contention. The larger question is raised as to what is “access”. At a time when science and technology had not developed as to enable courts to ascertain scientifically (and not on the basis of oral evidence) whether the child was born on account of the sexual intercourse between a man and his wife, the expression “access” was used in Section 112 of the Evidence Act. “Access” in Section 112 as understood hitherto is certainly “the possibility of and the opportunity for sexual intercourse between the man and woman”. No better and acceptable evidence on that aspect could be authentically secured in yester years and hence access in Section 112 was always understood to mean the opportunity for or the possibility of sexual intercourse between the spouses. But should the expression “access” be understood in such vague, general and non-specific terms any more, is a question which courts will have to consider seriously. By access what is really meant is the accessibility of the ovum for the sperm. That is the only way to understand the expression “access” in a modern knowledge society where authentic ascertainment as to whether sperm from a man had caused fertilization of the ovum of the woman is scientifically possible.

 

48. In the age of scientific ignorance – before the D.N.A test to authentically ascertain biological parentage came in handy, the expression ‘access’ in Section 112 may have been understood as the physical proximity of the spouses or the opportunity for them to have sexual intercourse. But when science and technology have taken strides forward and permit courts now to precisely ascertain and conclude authentically whether the sperm from the man did really have access to the ovum of the woman, the expression ‘access’ in Section 112 can certainly be understood in a different level and dimension. The Supreme Court has accepted in many cases that “the result of a genuine D.N.A test is said to be scientifically accurate”. If such D.N.A test can show authentically that there was no possibility scientifically of the sperm from the man having accessed the ovum of the woman, it can certainly be held to be evidence of non access contemplated under Section 112. The D.N.A test result can certainly be accepted as evidence of access or non access of the man to the woman, relevant to the context. It is not necessary hence to squander the advantage of such authentic scientific expert evidence even while considering the play of Section 112 of the Evidence Act. “To develop scientific temper” is the fundamental duty of every indian citizen under Article 51A (h) of the Constitution. Statutes have to be interpreted by the courts conscious of this fundamental duty of all citizens. The provision of law will have to be given contextual relevance and significance in the present age. Updation of words in statute enacted in a bygone era can be achieved by innovative interpretation relevant to the times. If it is possible to harmonise the expression “access’ in the Indian Evidence Act enacted in 1872 in such a manner as to accommodate the great advantage and benefit of scientific and technological development in the modern era, such interpretation has definitely got to be preferred. It would be idle to contend or assume that such scientific evidence must be squandered, ignored and overlooked in view of the language of Section 112 of the Evidence Act understood and interpreted in a bygone era. That would be meek surrender to the tyranny of language and precedents at the expense of justice. The line of decisions of the Supreme Court including Kamti Devi Vs. Poshi Ram, (2001) 5 SCC 311, according to us, have not considered this question specifically. The possibility of and the opportunity to understand the expression “access” in Section 112 of the Evidence Act in the light of the modern scientific developments has not been considered in earlier binding precedents which understood the said expression “access’ to mean mere possibility or opportunity of the spouses to have sexual intercourse. We extract below the specific observations in para.10 of Kamti Devi (supra):

 

“We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic 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. 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 irrebuttable. This may look hard from the point of view of the husband who would be compelled 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 bastardised 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 or non-access as delineated above.”

 

49. We have extracted the above passage only to convince ourselves that in spite of the said observations it is still possible now, after a decade, to consider afresh the question whether “access” in Section 112 can be understood in a more specific sense. It is possible in the light of the modern scientific developments to understand the expression “access” in Section 112 as possibility of access of the sperm to the ovum. This question has not been considered by the Supreme Court. The observations in Kamti Devi (supra), according to us, does not foreclose such an approach by this Court even though such an approach has not been actually made by the Supreme Court in that case. That case was decided on other grounds as the Supreme Court found that there was sufficient evidence otherwise in that case to prove that the husband had no opportunity whatsoever to have liaison with the mother of the child. In that view the observations can be said to be only obiter.

 

50. The learned counsel for the appellant then points out the injustice and tyranny that would result if a literal interpretation of the word ‘access’ consistent with the interpretation followed in earlier days (when the advantage of science and technology were not available) were to be mechanically and rigidly followed by courts in the present times. The learned counsel points out that after the decision in Maneka Gandhi Vs. Union of India, AIR 1978 SC 597 every law has to be fair just and reasonable and should not be arbitrary, capricious, fanciful or oppressive. An interpretation which leads to the provision being fair, reasonable and just will have to be preferred and followed. If the interpretation would render the provision of law to be arbitrary, fanciful, capricious and oppressive, the vice of unconstitutionality under Articles 14 and 21 may be attracted. We have no hesitation to agree that in the post Maneka Gandhi (supra) era, Section 112 must receive such a progressive interpretation relevant to the times. Any interpretation which should lead to the tyranny of a conclusive presumption contrary to proved facts will certainly have to be avoided and the other can be preferred. Courts must certainly prefer to come to just conclusions on the basis of facts rather than succumb to conclusive legal presumptions of law. When the fact situation offers a legitimate option for the courts, we have no hesitation to agree that such a construction has to be follow which will cater to the ends of justice.

 

51. We find ourselves faced with similar dilemma as Justice Ormrod in [(1966) 1 All England Law Reports 356] cited by Sri C.S.Dias, the learned Amicus Curiae. We extract the same below:

 

“When as I think in these days, it is possible to enable the courts to do justice on a footing of fact and not to do injustice on a basis of presumption, I should myself greatly hope that no difficulties will ever be put in the way of a child’s blood being supplied for blood grouping. I know that it is a sad thing to bastardise a child, but there are graver wrongs; and this is a matter which I am sure all those concerned will approach with great caution, because there is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact. That is the first thing.”

 

52. We do also feel that the first concern of any court must certainly be to avoid injustice being done on the basis of a legal presumption when justice can be done on the basis of fact. No court should consider itself a prisoner to the language of a statutory provision or precedents of a bygone era when interpretation consistent with the current legally cognizable inputs and realities can help the court to render justice, to the satisfaction of the judicial conscience. We are hence tempted not to consider ourselves prisoners to the interpretation of Section 112 which was accepted in the yester years and feel persuaded to understand the expression “access” in a more meaningful, effective, vibrant and contextually relevant manner to enable the courts to do justice.

 

53. The presumption under Section 112 of the Evidence Act must certainly be shivering in its shoes. With the advent of science and technology when biological paternity can be ascertained by authentic scientific data, it would be idle to presume paternity which is contrary to the facts proved. It is of course for the legislature to consider whether the presumption under Section 112 ought to be changed to the “may presume’ or “shall presume’ variety, rather than permit the same to be continued as a conclusive presumption under Section 4 of the Evidence Act. But it is not necessary for the courts / interpretors to wait till the day that the legislature in a vast country like India intervenes to modify, alter and amend the statutory provision. The interpreter has enough elbow room within the law to do justice. It is hence that we think that a realistic understanding of the expression “access” would help courts to dispense better quality justice. Access, we agree, must be reckoned as the possibility / opportunity of the sperm to access the ovum and not merely physical proximity of the spouses or their mere opportunity to have sexual intercourse. Such an interpretation might have been sufficient to do justice in the bygone era. But in the present day of scientific and technological advancement, access can be understood more specifically to mean access of the sperm to the ovum. If such access is contra indicated conclusively by the DNA test, that can certainly be reckoned as evidence of non access which will help the husband to walk out of the Padmavyuha of Section 112 through the only exit door of non access recognised under Section 112. Not to understand Section 112 in that dynamic manner would, according to us, be certainly an anachronism. Interpretation has to keep pace with modern scientific and technological advancement and we do, in these circumstances, feel that the scope of the expression “access” in Section 112 can, in the present day context, be further realistically limited. “Access” in Section 112 of the Evidence Act can hereafter be safely understood as the possibility of access of the sperm of the man to the ovum of the woman and DNA test result which shows authentically that the sperm of the man did not actually access the ovum of the woman can be admitted as evidence of non access permitted under Section 112.

 

54. We have already taken the view that Section 112 is inapplicable and cannot be called in aid when the precise question to be decided is the validity of the marriage challenged on the ground that the wife was pregnant through another on the date of marriage. In that view of the matter, it is unnecessary to enter any specific findings on the subsequent questions of law raised. But we feel compellingly persuaded to opine that even if Section 112 were held to be applicable, the following conclusions are perfectly possible now.

(i) It is possible to hold that Section 112 deals only with the presumption of legitimacy and not paternity. The concept of legitimacy need not and does not invariably in all cases include the concept of paternity. There may still be areas within the concept where there is no overlapping between the two concepts. In the interest of welfare of the child, it is perfectly permissible to burden a nonbiological father with obligations arising from legitimacy of a child born during his valid matrimony with the mother of the child. In that event the child’s interest – his maintenance, upkeep and inheritance, can be protected by such a presumption. It is not necessary to include within the presumption of legitimacy the presumption of paternity invariably in all cases. 

(ii) As authentic and scientific evidence of the precise date/period when the child was begotten (i.e., the gestational age of the foetus) is forensically possible now, access/non-access as on such date/period has to be specifically ascertained by courts before choosing to draw the conclusive presumption under Section 112 of the Evidence Act. 

(iii) The expression “access” in Section 112 of the Evidence Act in the modern era of scientific and technological development is not to be construed merely as physical proximity or the possibility of sexual intercourse between the spouses. It is to be reckoned more appropriately and specifically as the possibility of access of the sperm of the man to the ovum of the woman. In that view of the matter, the result of a valid D.N.A test would be admissible to authentically rule out (or confirm) access under Section 112 of the Evidence Act. Such an interpretation will be more consistent with the times and will help the courts not to squander available and acceptable evidence of DNA test in a controversy regarding disputed paternity. 

(iv) Such an understanding of Section 112 of the Evidence Act will help to make the presumption thereunder to be constitutionally valid and make the law fair, just and reasonable. Such an approach would help to avoid the consequence of the law being arbitrary capricious, fanciful and oppressive. The vice of unconstitutionality under Articles 14 and 21 can certainly be attempted to be avoided by adopting such an interpretation. Such an interpretation will help the courts to do justice on the basis of facts and not perpetrate injustice on the basis of legal presumption.

55. We shall now proceed to consider the factual controversies in the present case and attempt to resolve them primarily in the light of the conclusions of law enumerated in paragraph 38 above. Betrothal took place on 05-05-2003. Marriage took place on 17-05-2003. The child was born on 06-01-2004. The expert evidence available clearly suggests that the child was begotten prior to 17-05-2003, ie. the date of marriage. That is certainly a possible conclusion. That to us is the more acceptable conclusion on facts also. We have considered the oral and documentary evidence including the evidence of experts under Section 45 of the Evidence Act. The foetus was 61 days of gestational age on 26-06-2003. That takes us back to 27-04-2003. To that a maximum of 14 days have to be added. To that provision is made for possible inexactitude in computation. Even after providing for all that it is opined by PW 2 that sexual intercourse must have taken place prior to 17-05-2003 (i.e., the date of the marriage) – at any rate, prior 11-05-2003. PW 4 another expert in Gynaecology also certified that the child must have been conceived prior to 17-05-2003. PW5 who had attended on the respondent during the initial days of pregnancy also asserted that the child must have been conceived before 08-05-2003, at any rate, prior to 10-05-2003. The opinion of RW 2 also confirms that fertilisation must have taken place on 11-05-2003. To this he adds that 7 days either side can be included to make up the error in ascertainment of the gestational age by USG. That opinion is not shown to be authentic. When considered in the light of Exts. X1 and X2 we prefer to accept the opinion of PWs. 2, 4 and 5 over the opinion of RW 2. We conclude that the child must have been begotten/conceived prior to 17-05-2003 during which period there was no possibility admittedly of conception through the appellant. The DNA test results confirm that the appellant is not the biological father of the child born. The presumption under Section 112 of the Evidence Act has already been held to be not available in favour of the respondent to help the court for resolving the controversy in this case. The validity of the marriage is in question. To resolve that controversy as we have already held, Section 112 cannot be called in aid. The question has to be decided without the aid of the presumption under Section 112 of the Evidence Act. Not only the evidence of non access, any other admissible and acceptable data can be made use of – including DNA test results, by the adjudicator to ascertain whether the appellant is responsible for the pregnancy.

 

56. We have authentic data of the DNA test. Exts. X1 and X2 do both indicate that the appellant is not the biological father of the child born to the respondent. The court had sent the parties for such an expert examination. Ext. X1 turned out to be against the respondent and at the instance of the respondent this Court had directed that a further test be conducted. Ext. X2 also confirms that the appellant is not the biological father of the child born. In the absence of the presumption under Section 112 of the Evidence Act there is nothing to suggest the responsibility of the appellant for the conception and pregnancy. Exts. X1 and X2 must in the circumstances clinch the issue. There is no contention or possibility of conception of the pregnancy after the respondent’s marriage with the appellant on account of physical relationship with any other. That again confirms that the pregnancy/conception must have been prior to the date of marriage. There is no contention that the marriage was valid and the extra marital sexual relationship after marriage may/could have caused the pregnancy. Such a weird possibility can be safely ruled out. We do, in these circumstances, take the view that the respondent was pregnant on the date of the marriage and that the appellant was not responsible for such pregnancy. The appellant, we hold on the basis of Exts. X1 and X2, is not the biological father of the child so begotten. His consent for marriage is, we hold, vitiated on the ground of fraud. The marriage deserves to be declared null and void.

 

57. Even assuming that Section 112 of the Evidence Act is applicable, the available evidence indicates that the fertilisation was prior to the date of marriage. Exts. X1 and X2 further help this Court to conclude that there was non access between the spouses on the date when the fertilisation of the ovum took place. This is indicated conclusively by the DNA test reports which show that the appellant is not the biological father of the child.

 

58. The argument that the conduct of the wife must suggest convincingly that she was not pregnant through any other on the date of marriage cannot be accepted. The mere fact that she had submitted herself to DNA test initially and had insisted to get the DNA test repeated are not, according to us, sufficient to wish away the result of such DNA tests. May be, the respondent was unaware of the conclusiveness of the test and may have offered to get such test conducted and repeated in the hope that such test results would not go conclusively against her. Even otherwise she may have been obliged to present a picture of injured innocence and offer herself for the test in an obvious bid to highlight the picture of injured innocence. This circumstance, strenuously canvassed, is not sufficient for us to ignore the DNA test results.

 

59. We do, in these circumstances, come to the conclusion that the impugned order warrants interference. We are convinced that the respondent was pregnant on the date of her marriage with the appellant and that the appellant was not responsible for such pregnancy. The consent of the appellant for the marriage is thus vitiated by fraud, he having been kept in the dark about such pregnancy and it being evident beyond the pale of controversy that he would not have consented to such marriage if he had knowledge of such pregnancy. We are satisfied that this appeal deserves to be allowed and a decree for declaration of nullity under Section 19 deserves to be granted.

60. In the result:

a) This appeal is allowed; 

b) The impugned order is set aside; 

c) A decree of nullity is granted declaring the marriage between the appellant and the respondent solemnised on 17-05-2003 at St. Mary’s Ferona Church, Maruthonkara, to be null and void; 

d) The parties are directed to suffer their respective cost.

Mat. Appeal No.31 of 2010:

1. This appeal is directed against an order passed by the family Court directing payment of maintenance to the claimants/respondents – allegedly the wife and child of the appellant.

 

2. When this matter came up for hearing, both sides submitted that the decision in this appeal will have to follow the decision in Mat. Appeal No.75 of 2008. That appeal is disposed of by us as per the above judgment. We have come to the conclusion that the marriage between the appellant and the respondent is null and void and have declared so. We have taken the view that Section 112 of the Evidence Act is not available for the 2nd respondent/ the child of the 1st respondent. The respondents/claimants are not hence the legally wedded wife or legitimate or illegitimate child of the appellant. They are hence not entitled to maintenance.

 

3. It follows that as agreed by the parties, following the decision in Mat. Appeal No.75 of 2008, this appeal is also only to be allowed.

4. In the result:

a) This appeal is allowed; 

b) The impugned order is set aside; 

c) Parties are directed to suffer their respective costs.

 

Rajesh Francis Vs. Preethi Roslin

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

 

R. Basant & K. Surendra Mohan, JJ.

Mat.A. No. 75 of 2008

Dated this the 13th day of April, 2012

Head Note:-

Divorce Act, 1869 –  Section 19 – The fact that the wife was pregnant through another on the date of the marriage is ipso facto sufficient for a court to hold that the consent of the husband for the marriage is vitiated by fraud  unless it is shown satisfactorily that the husband had acceded to the situation consciously. This is so whether the wife was aware or not of the fact of such pregnancy and notwithstanding her honest impression that her sexual intercourse prior to marriage with any other had not led to conception. 

Family Courts Act, 1984 –  Section 14 – The Family Courts are also bound by the conclusive presumption under Section 112 of the Evidence Act. 

Hindu Marriage Act, 1955 – Section 12(1)(d) – Special Marriage Act, 1954 – Section 25(2) – Divorce Act, 1869 – Section 19 – The presumption under Section 112 of the Evidence Act is not available when the validity of the marriage is itself questioned in proceedings on the ground that consent of the husband for the marriage is vitiated by fraud for the reason that wife was pregnant through any other on the date of marriage. Proof of validity of marriage is sine qua non to invoke the conclusive presumption. 

Evidence Act, 1872 – Section 112 – the presumption  deals only with legitimacy and not paternity. The concept of legitimacy need not and does not invariably in all cases include the concept of paternity. There may still be areas within the concept where there is no overlapping between the two concepts. In the interest of welfare of the child, it is perfectly permissible to burden a nonbiological father with obligations arising from legitimacy of a child born during his valid matrimony with the mother of the child. In that event the child’s interest – his maintenance, upkeep and inheritance, can be protected by such a presumption. It is not necessary to include within the presumption of legitimacy the presumption of paternity invariably in all cases. 

Evidence Act, 1872 – Section 112 – As authentic and scientific evidence of the precise date/period when the child was begotten (i.e., the gestational age of the foetus) is forensically possible now, access/non-access as on such date/period has to be specifically ascertained by courts before choosing to draw the conclusive presumption.

Evidence Act, 1872 – Section 112 – The expression “access” in Section 112 in the modern era of scientific and technological development is not to be construed merely as physical proximity or the possibility of sexual intercourse between the spouses. It is to be reckoned more appropriately and specifically as the possibility of access of the sperm of the man to the ovum of the woman. In that view of the matter, the result of a valid DNA test would be admissible to authentically rule out (or confirm) access under Section 112. Such an interpretation will be more consistent with the times and will help the courts not to squander available and acceptable evidence of DNA test in a controversy regarding disputed paternity. 

For Appellant: 

  • S. Sreekumar (SR.) 

For Respondent: 

  • C.C. Abraham & M.S. Saji

 

J U D G M E N T

R. Basant. J.

Mat. Appeal No.75 of 2008:

(i) Has not the appellant succeeded in proving that his wife/the respondent was pregnant through another when she entered matrimony with him?

 

(ii) Is he not entitled for a decree of nullity of marriage under Section 19 of the Divorce Act on the ground that his consent for marriage is vitiated by fraud?

 

(iii) Is it fair, just and reasonable to expect him to produce still better evidence to substantiate his claim?

 

These questions are raised for our consideration by Sri.S. Sreekumar, the learned senior counsel for the appellant in this appeal.

 

2. Facts are simple. Parties are Christians by religion. Theirs was a traditional arranged marriage in accordance with the customary religious rites. The betrothal took place on 05-05-2003. The marriage was solemnized on 17-05-2003. They lived together with ample opportunity for physical access after their marriage. It was realised that she was pregnant. Doctor was consulted. Urine test confirmed pregnancy. USG scan was taken on 26-06-2003. It showed that the gestational age of the foetus was 61 days (8 weeks and 5 days) on 26-06-2003. She gave birth to a healthy baby on 06-01-2004. The husband and his relatives entertained a serious doubt whether the respondent/wife had actually conceived in her relationship with the appellant. It allegedly dawned on them that the respondent/wife must have been pregnant through another on the date of her marriage with the appellant.

 

3. The appellant on 16-01-2004 filed a petition for declaration of nullity under Section 18 of the Divorce Act on the ground that his consent for marriage was vitiated by fraud. He was not aware of the fact that she was pregnant through another on the date of his marriage. He would not have consented if this information were revealed/available to him. He prayed that his marriage may be declared to be null and void.

 

4. The respondent resisted the prayer for declaration of nullity of marriage. She was not pregnant on the date of her marriage with the appellant. She had conceived only after the solemnization of her marriage with the appellant. The child was conceived in her physical relationship with the appellant. The child born on 06-01-2004 was a premature child and the child was born in valid matrimony. The respondent invoked conclusive presumption under Section 112 of the Evidence Act contend that the child was legitimate. Paternity and legitimacy have to be conclusively presumed, it was contended. Access after the date of marriage having not been disputed and heavy burden on the appellant to dislodge the presumption under Section 112 of the Evidence Act by the only method of proving non-access having not been discharged, the claim for declaration of nullity must fail, it was contended. It was prayed that the petition may be dismissed.

 

5. Parties went to trial on these contentions. On the side of the appellant/petitioner before the Family Court PWs 1 to 3 were examined and Exts. A1 to A5 were marked. On the side of the respondent, RW 1 was examined and Exts. B1 and B2 were marked. Exts. X1 and X2 were also marked as court Exhibits by consent.

 

6. Ext. X1 is the D.N.A. test report obtained from the Rajeev Gandhi Centre for Bio-technology at Trivandrum dated 04-01-2005. After receipt of that report, the respondent claimed that a further test must be conducted. When her prayer was rejected by the Family Court, she came to this Court and obtained judgment dated 14-10-2005 in W.P. (C) No. 28841 of 2005 in her favour. Thereafter an Advocate Commissioner was appointed and the parties were taken to Hydrabad to the Central Forensic Science Laboratory. It was thereafter that Ext. X2 DNA report was obtained. Both Exts.X1 and X2 showed that the appellant was not the biological father of the child born to the respondent after marriage.

 

7. Before this Court, PW 2 was recalled and examined. PWs 4 and 5 were examined and Exts. A6 and A7 issued by PWs 4 and 5 respectively were marked. RW 2 was examined on the side of the respondent. This Court felt that certain clarifications were required and that is how further evidence was permitted to be adduced before this Court under Order 41 Rule 27 CPC.

 

8. Arguments have been advanced by the learned counsel for the rival contestants. As we felt that certain interesting questions are raised for consideration, we requested Advocate Sri. C.S. Dias to help this Court as Amicus Curiae. We place on record our appreciation of the efforts taken by the learned counsel including the Amicus Curiae to help this Court in the disposal of this case.

 

9. Before coming to the specific factual controversy as to whether it has been proved satisfactorily that the respondent was pregnant on the date of her marriage with the appellant, it will be appropriate, we feel, to refer to certain questions of law that have been raised. We shall initially discuss such questions raised and shall later proceed to consider the factual dispute specifically raised.

 

10. Declaration of nullity is claimed under Section 18 of the Divorce Act. The provisions relating to nullity of marriage appear in Chapter IV of the Divorce Act. Sections 18 to 21 are available in that Chapter. We are primarily concerned with Sections 18 and 19. Section 20 stands deleted.

11. We extract Section 18 and 19 of the Divorce Act below:

18. Petition for decree of nullity.- Any husband or wife may present a petition to the District Court praying that his or her marriage may be declared null and void. 

19. Grounds of decree.- Such decree may be made on any of the following grounds:- 

(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit; 

(2) that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity; 

(3) that either party was a lunatic or idiot at the time of the marriage; 

(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force. 

Nothing in this section shall affect the [jurisdiction of the District Court] to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.” 

(emphasis supplied)

 

12. We are in this case concerned not with any of the four grounds specifically enumerated in Section 19. Divorce is claimed on the residuary ground in Section 19 emphasised above.

 

13. The claim for nullity is staked by the appellant on the ground that his consent for marriage was obtained by fraud. This plea is founded on the factual allegation that his wife/the respondent was pregnant on the date of marriage. The first question to be considered is whether the facts, if proved, would justify the grant of a decree for nullity under Section 19.

 

14. It will be apposite to refer to Section 12(1)(d) of the Hindu Marriage Act and Section  25(2) of the Special Marriage Act which we extract below:

12. Voidable marriages.- (1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- 

x x x x x x 

x x x x x x 

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.” 

25. Voidable marriages.—Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if,– 

x x x x x 

x x x x x 

x x x x x 

(2) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or”

15. A specific statutory provision entitling a husband for a decree for nullity of marriage on the ground that his wife was pregnant through another on the date of marriage is significantly absent in the Divorce Act. Though specific provisions have been made in Section 12(1)(d) of the Hindu Marriage Act and Section 25(2) of the Special Marriage Act incorporating such a ground for declaration of nullity of marriage, such a provision is significantly absent even today under the Divorce Act. By subsequent amendment also, such a stipulation has not been specifically incorporated. This obliges the appellant now to fall back on the residuary saving clause in Section 19 to claim a decree for declaration of nullity of marriage.

 

16. Our attention has been drawn to the decision in D.M. Raju Vs. S. Janaki, AIR 1974 Mysore 61.

 

17. Section 7 of the Divorce Act stands repealed now and therefore the fact that the Matrimonial Causes Act, 1937 in England subsequently recognizes and concedes the right of a husband for a declaration of nullity on that ground is of no significance. Divorce can be granted on the ground raised in this petition only if this Court is convinced that the consent of the appellant for marriage was vitiated because of fraud.

 

18. That takes us to the question as to what is fraud in matrimonial law? It is pointed out to this Court that even accepting the entire case of the appellant as gospel truth the respondent was not pregnant on the date of betrothal i.e, 05-05-2003 Consent for marriage was given on that day and on that day even going by the version of the appellant, the respondent was not pregnant. There is nothing to show that the respondent was aware of the fact that she was pregnant on the date of betrothal or on the date of marriage. In these circumstances, there can be no element of fraud. Reliance is placed on the definition of “fraud” in other Statutes to contend that unless the respondent were actually aware of the fact that she was pregnant, she cannot be held to be guilty of any fraudulent misrepresentation or fraudulent suppression of facts.

 

19. This evidently must have been the reason why under Section 12 of the Hindu Marriage Act and Section 25 of the Special Marriage Act a separate ground was recognized entitling the husband for a declaration of nullity of marriage. Because of such provisions in the said Statutes, it is not necessary under those Statutes for the husbands in similar circumstances to prove fraud vitiating their consent to marriage. In the absence of such a provision in the Divorce Act, strict proof of fraud vitiating matrimonial consent has to be insisted. If the respondent herself did not know that she was pregnant, there can be no valid contention of fraud vitiating consent, submits the learned counsel for the respondent.

 

20. We have rendered our anxious consideration to this contention. It is perhaps unfortunate that the mandate of Article 44 of the Constitution for a uniform civil code for the polity has not been translated into the tangible reality even in this 7th decade after the adoption of the Constitution. In a secular democratic republic, in respect of most citizens religion is nothing but an accident of birth. There is no choice for the individual. Discrimination on the grounds of divorce merely because of such accident of birth for which the citizen is not responsible is certainly unjust and constitutionally unacceptable. In this context, we note that the mandate under Part IV of the Constitution is to all instrumentalities of the State and the adjudicator/interpreter exercising sovereign functions is no exception to that mandate. Wherever there is elbow room for an adjudicator/interpreter, he must seize the opportunity readily to put into reality the mandate of Article 44 of the Constitution. Interpretationally it is certainly permissible to bring in uniform provisions in personal laws at least in certain areas. So reckoned, we deem it absolutely permissible to understand the residuary stipulation in Section 19 to permit a declaration of nullity on the ground that the consent for marriage was vitiated – for the reason that the wife was pregnant through any other on the date of marriage. The proof of that crucial fact, in the absence of pleading and proof that the husband had consciously acceded to that situation, can certainly be reckoned as sufficient to entitle a husband for a decree for declaration of nullity. In the absence of such explanation, on proof of such pregnancy, fraud for the purpose of Section 19 can safely be held to be established.

 

21. It is true that fornication (pre-marital sexual/physical relationship) may by itself not amount to fraud in matrimonial law to justify a claim for declaration of nullity of marriage. If that be so, the mere fact that a wife in such pre-marital sexual intercourse had become pregnant, even without her being aware of the same, cannot operate as a plank for declaration of nullity for the reason that the consent of the husband to such marriage was vitiated, it is suggested. ‘Fraud’ in law must take in moral contumaciousness or depravity. Wilful representation of falsity or suppression of truth must be shown to exist. If fornication is not a ground, how can unanticipated conception without even awareness of that fact expose the wife to the charge of fraud? How can such a wife be held to be guilty of fraud, it is queried. The argument sounds impressive at the first blush; but cannot certainly stand closer scrutiny. We will assume the worst. Pre­marital sexual intercourse may be common or may not be uncommon in the modern context. That may not by itself be a ground to vitiate a marriage on the ground of fraud. Virginity is not insisted by law for either spouse as one of the requisites of a valid first marriage. But accepting all this, we are unable to agree that the fact of pregnancy through any other on the date of marriage ipso facto will not entitle the husband for a declaration of nullity. Societal realities have got to be accepted. A husband, in the absence of his conscious acceptance, cannot be compelled to enter matrimony with the burden of a foetus growing in the womb of his wife through another, conceived prior to the marriage. It is easy for law to assume that this constitutes fraud in matrimonial law. It is not necessary to insist on proof that the wife was aware of such pregnancy on the date of marriage. At least the burden is on her, it can safely be assumed, to ensure and satisfy herself that she is not pregnant through any other on the date of marriage. If she enters matrimony without verifying and confirming that she was not pregnant through any other on the date of marriage, that can itself be safely reckoned as an act of fraud constituting a ground vitiating the consent of the husband in marriage.

 

22. The definition of ‘fraud’ under Section 17 of the Indian Contract Act need be mechanically and blindly be imported into matrimonial law. Any wife, who has had premarital sex and who has got impregnated in fact, whether to her confirmed knowledge or not, and who enters matrimony without confirming that she is not pregnant, can, according to us, be safely held to be guilty of fraud in matrimonial law. The consent given by her unfortunate husband for such marriage can certainly be held to be vitiated by fraud, even in the absence of evidence of her knowledge of her pregnancy. It is absolutely safe to assume that no husband would have consented to matrimony if he had even a remote inkling of such pregnancy of his wife through another on the date of his marriage. His consent for such marriage can hence safely be held to be vitiated by fraud, unless there is plea and evidence that he consciously acceded to that situation.

 

23. Such an interpretation, we are satisfied, would bring in uniformity in the provisions relating to declaration of nullity of marriage under the Hindu marriage Act, Special marriage Act and the Divorce Act. Such interpretation, we have no hesitation has got to be preferred, consistent with the mandate of Article 44 the Constitution.

 

24. We find no merit in the contention that on the date engagement/betrothal the wife had not admittedly conceived consent for matrimony contemplated under Section 19 is certainly not the consent at the time of betrothal. It refers evidently to the consent on the date of marriage. That the wife may have become pregnant after the date of betrothal; but before the date of marriage, even without her own awareness of the fact of such pregnancy cannot certainly be reckoned as a ground defeating the claim for nullity under Section 19 of the Divorce Act. This contention cannot, in these circumstances, be accepted. To avoid any misgiving, we make it clear that the wife/respondent has not raised such a specific contention. She has no contention that she had become pregnant after betrothal but before marriage. In our anxiety to understand the law correctly, questions were raised and the learned counsel and the Amicus Curiae advanced arguments on this aspect of law.

 

25. We now proceed to consider the next disputed question raised whether the presumption of legitimacy under Section 112 of the Evidence Act can or cannot be invoked while deciding a claim for nullity on the ground that the wife was pregnant through any other on the date of marriage.

 

26. The contention raised, which contention appears to have been accepted by the court below, is that invoking the presumption under Section 112 a conclusive finding on legitimacy (and paternity) of the child born after marriage can be drawn. If that be so it defeats the contention that the wife had conceived through any other on the date of marriage.

 

27. This question deserves to be considered carefully. We must first have a look at Section 112 of the Evidence Act. We extract the same below:

 

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.” 

(emphasis supplied)

 

28. There is a contention raised initially that the Family Court need not consider itself to be bound by Section 112 of the Evidence Act. We shall first of all consider that contention. This contention is raised with the help of Section 14 of the Family Courts Act. We extract Section 14 below:

 

14. Application of Indian Evidence Act, 1872.- A Family Court may receive as evidence any report statement documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act 1872 (1 of 1872).” 

(emphasis supplied)

 

29. It is true that under Section 14 certain materials can be permitted to be received in evidence by the Family Court whether the same would be relevant and admissible or not, under the Indian Evidence Act. The general and sweeping language used in Section 14 prompts the counsel to contend that the Family Court is not bound by and can even ignore Section 112. We are unable to agree. Section 112 of the Evidence Act incorporates a presumption which is part of the substantive law of this country. The enabling provision under Section 14 of the Family Courts Act which permits the Family Court, considering the nature of the mission/task before it, to ignore the procedural stipulations and avoid unnecessary bottlenecks cannot, according to us, certainly be construed as a permission or licence to ignore a fundamental substantive statutory stipulation like the one in Section 112 of the Evidence Act. We are, in these circumstances, unable to accept that the Family Courts, in view of the provisions of Section 14 can consider themselves to be not bound by Section 112 of the Evidence Act. If that be so, it would be death knell of the said statutory stipulation. We fail to understand which court can be held to be bound by Section 112 if the Family Courts were to be held to be not bound by the said statutory provision. The very purpose of the provision would be frustrated. It is before the Family Court that the aid of the presumption would be most necessary.

 

30. Notwithstanding the wide sweep of the language used in Section 14, we reject the contention raised that the Family Courts need not consider themselves to be bound by Section 112. Considering the purpose, object and scheme of the Family Courts Act, notwithstanding the sweeping semantics employed in Section 14, we take the view that the stipulation is merely procedural and cannot permit the Family Courts to ignore fundamental and basic stipulations of law which are substantive in nature. This contention raised must hence fail.

 

31. Section 112 mandates that there must be a valid marriage. The section expressly stipulates so. Binding precedents are galore about the basis of the presumption under Section 112. The provision obviously has its foundation on public policy. Law leans in favour of the presumption of legitimacy of a child born in lawful wed-lock. This principle finds statutory recognition in Section 112 of the Evidence Act. The presumption is conclusive, unless it is rebutted in the only manner contemplated in the section. This is based on the principle “that he is the father whom the nuptials show to be so or the marriage indicates”. This presumption is the foundation of every man’s birth and status. It is a sensible presumption of law and is the pivot on which rests the entire fabric of the society.

 

32. It is fundamental and axiomatic that valid marriage must be proved before the presumption under Section 12 can be invoked. Proof of valid marriage is sine qua non for invocation of the presumption under Section 112. Whatever the period of their cohabitation, however loyal and committed the partners may be to each other and however convincing the evidence of their faithful cohabitation may be, the presumption under Section 112 cannot be invoked or drawn unless solemnization of valid marriage is proved. Proof of valid marriage is the bedrock on which the presumption under Section 112 is built.

 

33. Such a presumption cannot obviously have any role or play before the validity of the marriage is established. To establish the validity of such a marriage, the presumption under Section 112 cannot obviously be invoked. In a case like the instant one where the validity of the marriage is assailed on the ground that the wife was pregnant through another on the date of marriage, this presumption cannot have any play at all. It would be a classic instance of putting the cart before the horse, if this presumption were to be invoked for ascertaining the validity of the marriage itself. We have, in these circumstances, no hesitation to agree with the learned counsel for the appellant that the presumption under Section 112 cannot be invoked in a case where the very validity of the marriage is in question. Only after the validity of the marriage is considered and decided, the presumption under Section 112 can be invoked. To decide whether the marriage is valid or not, the presumption under Section 112 cannot obviously be invoked.

 

34. It is, of course, true that a decision on the validity of marriage on this ground (i.e, pregnancy through another on the date of the marriage) may have a reflection on the legitimacy of the child born. But that, according to us, is not a valid reason to justify invocation of the presumption under Section 112 in proceedings where validity of the marriage is impugned on the ground that the wife was pregnant through another on the date of the marriage. The question of responsibility for the pregnancy will certainly have to be ascertained otherwise – without the aid of the presumption under Section 112. We find certain observations of the Supreme Court on this aspect which justify our conclusion. In Mahendra Vs. Sushila, AIR 1965 SC 364 the Supreme Court did have an occasion to consider this aspect. The observations clearly indicate that the presumption under Section 112 though it is certain to affect the legitimacy of the child born, cannot be pressed into service while deciding the validity of marriage assailed on the ground of Section 12(1)(d) of the Hindu Marriage Act. We extract the relevant observations in paragraph-180:

 

“180. Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man 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. The question of the legitimacy of the child born to the respondent does not directly arise in this case, though the conclusion we have reached is certain to affect the legitimacy of the respondent’s daughter”

(emphasis supplied)

 

35. Of course, the Supreme Court had not specifically declared the law on this aspect; but the observations support and justify our conclusion that Section 112 cannot be called in aid by a wife to support her contention that she was not pregnant or that she had not already conceived through any other at the time of marriage. Whether the wife was pregnant on the date of the marriage and through whom, will certainly have to be considered on other factual inputs available and cannot certainly be decided on the basis of the conclusive presumption under Section 112 of the Evidence Act which we repeat comes into play only after a valid marriage in accordance with law is established. Even if the pregnancy got aborted, the ground for declaration of nullity under Section 12(1)(d) of the Hindu Marriage Act, Section 25(2) of the Special Marriage Act and Section 19 of the Divorce Act would still survive. The question cannot hence be considered in the light of the presumption of legitimacy under Section 112. The mere fact that the finding regarding pregnancy on the date of marriage may have an impact on the legitimacy (including paternity) of the child born cannot permit us to import the conclusive presumption under Section 112 into such adjudication regarding validity of marriage.

 

36. In this context we take note of the decision of a learned single Judge of this Court on this very question. In P.V. Sabu Vs. Mariakutty, AIR 1998 Ker. 86, Hon’ble Justice C.S. Rajan had considered this specific plea and had held thus in paragraph 18 which we extract below:

“18. Thus it can be safely inferred that Section 112 is applicable only if there is a valid marriage. If there was no valid marriage initially, there cannot be any scope for a presumption of legitimacy of the child. The presumption applies only when a child was born during the continuance of a valid marriage or within 280 days after the dissolution of the marriage and the mother remaining unmarried. If the presumption under Section 112 is stretched to other cases, anomaly may occur.” 

(emphasis supplied)

37. We are in complete agreement with the learned Judge on the above observations in paragraph 18. We have reservations to accept the opinion later in the said paragraph that access and non-access after the marriage alone is relevant under Section 112 of the Evidence Act. We shall consider that aspect later.

38. The above discussions lead us to the following firm conclusions of law.

(1) The fact that the wife was pregnant through another on the date of the marriage is ipso facto sufficient for a court to hold that the consent of the husband for the marriage is vitiated by fraud under Section 19 of the Divorce Act unless it is shown satisfactorily that the husband had acceded to the situation consciously. 

(2) This is so whether the wife was aware or not of the fact of such pregnancy and notwithstanding her honest impression that her sexual intercourse prior to marriage with any other had not led to conception. 

(3) Section 14 of the Family Courts Act does not permit the Family Courts to ignore the substantive conclusive presumption under Section 112 of the Evidence Act. The Family Courts are also bound by the conclusive presumption under Section 112 of the Evidence Act. 

(4) The presumption under Section 112 is not available when the validity of the marriage is itself questioned in proceedings under Section 12(1)(d) of the Hindu Marriage Act, Section 25(2) of the Special Marriage Act and Section 19 of the Divorce Act on the ground that consent of the husband for the marriage is vitiated by fraud for the reason that wife was pregnant through any other on the date of marriage. Proof of validity of marriage is sine qua non to invoke the conclusive presumption under Section 112 of the Evidence Act.

 

39. The learned counsel for the appellant submits that even assuming that Section 112 of the Evidence Act can be made use of by the respondent, the respondent is not entitled to succeed in persuading the court to draw any conclusive presumption regarding the paternity of the child. Various contentions are raised. Though the conclusions reached in paragraph 38 is sufficient for the purpose of adjudication of the lis in this appeal, we deem it appropriate to consider the contention raised.

 

40. First of all it is contended that Section 112 covers only legitimacy and not paternity. It is next (secondly) contended that the date on which the child would have been begotten has to be ascertained. When such elate of conception ascertained falls prior to the date of the marriage, the presumption under Section 112 will not be available to the respondent even in a case where valid marriage has taken place. It is further (thirdly) contended that in any view of the matter, in view of the D.N.A test results it can be concluded beyond the trace of any doubt that there was no possibility of access between the appellant and the respondent on the date when the child could have been begotten.

 

41. We shall now proceed to consider these three contentions raised by the appellant, though we remind ourselves and are conscious that the exercise is academic and not strictly necessary to resolve the controversy specifically raised.

 

42. We have considered the question whether the presumption under Section 112 of the Evidence Act can be held to be limited to legitimacy of the child born and whether it can be held that the conclusive presumption applies only to legitimacy and not to paternity of the child. The contention appears to be interesting and crucially relevant. When Section 112 was enacted by the legislature in 1872, science and technology had not developed to any significant extent. Authentic expert scientific evidence as to whether a person is the biological father of the offspring could not then be procured. However, with the advancements in the field of science and technology it is today possible to ascertain paternity authentically by indisputable scientific evidence. In this context the question arises whether a distinction can be drawn between legitimacy and paternity in the operation of Section 112. We certainly consider the question to be very interesting. The presumption, the heading of the section shows is only regarding legitimacy. The semantics employed by the legislature also suggests that the presumption specifically is only regarding legitimacy. Is it possible to exclude paternity from the concept of legitimacy? What would remain and be left in the concept of legitimacy if we were to exclude paternity from the same? It is possible to take the view that legitimacy is permitted to be presumed for certain legal consequences that must follow. In that view of the matter paternity can be distinguished from legitimacy. It is not theoretically impossible for a presumed “legitimate” father to be not the biological father. Legitimacy might bring in legal consequences and obligations. When paternity can be ascertained authentically it would be perfectly permissible, nay laudable, to distinguish between legitimacy and paternity. In most cases legitimacy of a child must include the concept of paternity also. But the two concepts – legitimacy and paternity do not certainly cover the same field entirely. If such a view were taken, we do note that the presumption of legitimacy can certainly exist for certain purposes in the interest of the offspring, excluding the traumatic unjustified presumption regarding paternity against the man where paternity is contra indicated convincingly by scientific evidence. Such an interpretation, we feel, can certainly harmonise the interests of a child regarding whose legitimacy Section 112 can be called in aid and at the same time avoid the trauma of an unfavourable finding regarding paternity when such finding is factually oppressive and unjust. This question, it appears to us, is only academic in this case and it is unnecessary to record any final conclusion on that question. We need only observe that it appears to be theoretically possible to distinguish between legitimacy and paternity and thereby render Section 112 more congruent to the needs of a knowledge society where authentic ascertainment of paternity is factually possible by scientific inputs without at the same time compromising on the interests of a child born in matrimony. We leave the question there accepting that there is a clear distinction possible under Section 112 of the Evidence Act between legitimacy and paternity. We do take note of the observations on this aspect by a learned single Judge of the Delhi High Court Sri. Justice Ravindra Bhat, in paragraphs 26 and 27 in Rohit Shekhar Vs. Narayan Dutt Tiwari and Another, MANU/DE/3701/2010.

 

43. The next aspect to be considered is about the importance of the expression “at any time when the child could have been begotten”. Section 112 incorporates a conclusive presumption regarding legitimacy of the offspring if such child is born during the continuance of a valid marriage between the mother of the child and any person. The period during which the presumption operates is the entire period during continuance of a valid marriage and 280 days after its dissolution, the mother remaining unmarried. If the child is born during the specified period, the presumption operates. If the mother is married to another immediately after the dissolution of marriage and a child is born after such remarriage, the child will be presumed to be the child of the subsequent husband unless it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.

 

44. What perhaps deserves to be noted is that there is no exclusion of any initial period immediately following the marriage to justify invocation of the presumption under Section 112. Even if the child is born on the very next day after the marriage, Section 112 operates with vigour and the presumption of legitimacy can be avoided only by proof of non-access. We do not agree with the learned Judge who in P. V. Sabu (supra) observed that access after matrimony alone is relevant under Section 112. What we intend to note is that it is important to ascertain the date on which the child could have been begotten for a proper operation of Section 112 of the Evidence Act. In a given case if it is shown that the child was begotten on a day prior to marriage and there is no possibility of sexual access between the man and woman prior to marriage, as admitted in this case, the conclusive presumption cannot be invoked. Otherwise, the presumption does certainly operate. The legislature evidently appears to have chosen not to exclude any minimum period immediately after the marriage advisedly. That appears to be done consciously to protect the interests of the children conceived in pre-marital sexual intercourse of parents who enter formal matrimony subsequently with awareness of pre-marital conception. We need only observe that the evidence of access will very strictly be insisted by any prudent mind for the pre-marriage period, in a case where the date of conception is proved to be prior to the date of marriage.

 

45. When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Section 112. All we intend to note now is that even in a case where the presumption under Section 112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence – direct indirect circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period.

 

46. Access cannot be decided in a vacuum. Access on the date when the child could have been begotten has to be ascertained. Science and technology now permits the courts to precisely ascertain the date on which the fertilization of the sperm and ovum could have taken place. It is perfectly permissible even in a case where the presumption under Section 112 is sought to be drawn for the court to consider all evidence to ascertain the date on which the child in question could have been begotten. The age of the foetus can be authentically ascertained today with the help of scientific inputs. It is not necessary any more to rely merely on the oral evidence of the mother (or any one else) about the date of the LMP to ascertain the gestational age of the foetus. The period / date on which the child was begotten can be authentically and specifically ascertained. We repeat that access or non-access has to be considered with specific reference to the time when the child could have been begotten. The precise ascertainment of the date when the child could have been begotten is crucial in a case like the instant one. In this case there is no case that there was any sexual intercourse between the spouses prior to their marriage. That is the admitted case. If the child were begotten prior to the date of marriage, non-access is admitted. Therefore even if Section 112 were held to be applicable, if a safe finding is possible that the child was begotten prior to marriage, the presumption cannot be drawn in favour of legitimacy or paternity. That would be our answer to the second contention raised in law.

 

47. That takes us to the last contention. The larger question is raised as to what is “access”. At a time when science and technology had not developed as to enable courts to ascertain scientifically (and not on the basis of oral evidence) whether the child was born on account of the sexual intercourse between a man and his wife, the expression “access” was used in Section 112 of the Evidence Act. “Access” in Section 112 as understood hitherto is certainly “the possibility of and the opportunity for sexual intercourse between the man and woman”. No better and acceptable evidence on that aspect could be authentically secured in yester years and hence access in Section 112 was always understood to mean the opportunity for or the possibility of sexual intercourse between the spouses. But should the expression “access” be understood in such vague, general and non-specific terms any more, is a question which courts will have to consider seriously. By access what is really meant is the accessibility of the ovum for the sperm. That is the only way to understand the expression “access” in a modern knowledge society where authentic ascertainment as to whether sperm from a man had caused fertilization of the ovum of the woman is scientifically possible.

 

48. In the age of scientific ignorance – before the D.N.A test to authentically ascertain biological parentage came in handy, the expression ‘access’ in Section 112 may have been understood as the physical proximity of the spouses or the opportunity for them to have sexual intercourse. But when science and technology have taken strides forward and permit courts now to precisely ascertain and conclude authentically whether the sperm from the man did really have access to the ovum of the woman, the expression ‘access’ in Section 112 can certainly be understood in a different level and dimension. The Supreme Court has accepted in many cases that “the result of a genuine D.N.A test is said to be scientifically accurate”. If such D.N.A test can show authentically that there was no possibility scientifically of the sperm from the man having accessed the ovum of the woman, it can certainly be held to be evidence of non access contemplated under Section 112. The D.N.A test result can certainly be accepted as evidence of access or non access of the man to the woman, relevant to the context. It is not necessary hence to squander the advantage of such authentic scientific expert evidence even while considering the play of Section 112 of the Evidence Act. “To develop scientific temper” is the fundamental duty of every indian citizen under Article 51A (h) of the Constitution. Statutes have to be interpreted by the courts conscious of this fundamental duty of all citizens. The provision of law will have to be given contextual relevance and significance in the present age. Updation of words in statute enacted in a bygone era can be achieved by innovative interpretation relevant to the times. If it is possible to harmonise the expression “access’ in the Indian Evidence Act enacted in 1872 in such a manner as to accommodate the great advantage and benefit of scientific and technological development in the modern era, such interpretation has definitely got to be preferred. It would be idle to contend or assume that such scientific evidence must be squandered, ignored and overlooked in view of the language of Section 112 of the Evidence Act understood and interpreted in a bygone era. That would be meek surrender to the tyranny of language and precedents at the expense of justice. The line of decisions of the Supreme Court including Kamti Devi Vs. Poshi Ram, (2001) 5 SCC 311, according to us, have not considered this question specifically. The possibility of and the opportunity to understand the expression “access” in Section 112 of the Evidence Act in the light of the modern scientific developments has not been considered in earlier binding precedents which understood the said expression “access’ to mean mere possibility or opportunity of the spouses to have sexual intercourse. We extract below the specific observations in para.10 of Kamti Devi (supra):

 

“We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic 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. 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 irrebuttable. This may look hard from the point of view of the husband who would be compelled 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 bastardised 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 or non-access as delineated above.”

 

49. We have extracted the above passage only to convince ourselves that in spite of the said observations it is still possible now, after a decade, to consider afresh the question whether “access” in Section 112 can be understood in a more specific sense. It is possible in the light of the modern scientific developments to understand the expression “access” in Section 112 as possibility of access of the sperm to the ovum. This question has not been considered by the Supreme Court. The observations in Kamti Devi (supra), according to us, does not foreclose such an approach by this Court even though such an approach has not been actually made by the Supreme Court in that case. That case was decided on other grounds as the Supreme Court found that there was sufficient evidence otherwise in that case to prove that the husband had no opportunity whatsoever to have liaison with the mother of the child. In that view the observations can be said to be only obiter.

 

50. The learned counsel for the appellant then points out the injustice and tyranny that would result if a literal interpretation of the word ‘access’ consistent with the interpretation followed in earlier days (when the advantage of science and technology were not available) were to be mechanically and rigidly followed by courts in the present times. The learned counsel points out that after the decision in Maneka Gandhi Vs. Union of India, AIR 1978 SC 597 every law has to be fair just and reasonable and should not be arbitrary, capricious, fanciful or oppressive. An interpretation which leads to the provision being fair, reasonable and just will have to be preferred and followed. If the interpretation would render the provision of law to be arbitrary, fanciful, capricious and oppressive, the vice of unconstitutionality under Articles 14 and 21 may be attracted. We have no hesitation to agree that in the post Maneka Gandhi (supra) era, Section 112 must receive such a progressive interpretation relevant to the times. Any interpretation which should lead to the tyranny of a conclusive presumption contrary to proved facts will certainly have to be avoided and the other can be preferred. Courts must certainly prefer to come to just conclusions on the basis of facts rather than succumb to conclusive legal presumptions of law. When the fact situation offers a legitimate option for the courts, we have no hesitation to agree that such a construction has to be follow which will cater to the ends of justice.

 

51. We find ourselves faced with similar dilemma as Justice Ormrod in [(1966) 1 All England Law Reports 356] cited by Sri C.S.Dias, the learned Amicus Curiae. We extract the same below:

 

“When as I think in these days, it is possible to enable the courts to do justice on a footing of fact and not to do injustice on a basis of presumption, I should myself greatly hope that no difficulties will ever be put in the way of a child’s blood being supplied for blood grouping. I know that it is a sad thing to bastardise a child, but there are graver wrongs; and this is a matter which I am sure all those concerned will approach with great caution, because there is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact. That is the first thing.”

 

52. We do also feel that the first concern of any court must certainly be to avoid injustice being done on the basis of a legal presumption when justice can be done on the basis of fact. No court should consider itself a prisoner to the language of a statutory provision or precedents of a bygone era when interpretation consistent with the current legally cognizable inputs and realities can help the court to render justice, to the satisfaction of the judicial conscience. We are hence tempted not to consider ourselves prisoners to the interpretation of Section 112 which was accepted in the yester years and feel persuaded to understand the expression “access” in a more meaningful, effective, vibrant and contextually relevant manner to enable the courts to do justice.

 

53. The presumption under Section 112 of the Evidence Act must certainly be shivering in its shoes. With the advent of science and technology when biological paternity can be ascertained by authentic scientific data, it would be idle to presume paternity which is contrary to the facts proved. It is of course for the legislature to consider whether the presumption under Section 112 ought to be changed to the “may presume’ or “shall presume’ variety, rather than permit the same to be continued as a conclusive presumption under Section 4 of the Evidence Act. But it is not necessary for the courts / interpretors to wait till the day that the legislature in a vast country like India intervenes to modify, alter and amend the statutory provision. The interpreter has enough elbow room within the law to do justice. It is hence that we think that a realistic understanding of the expression “access” would help courts to dispense better quality justice. Access, we agree, must be reckoned as the possibility / opportunity of the sperm to access the ovum and not merely physical proximity of the spouses or their mere opportunity to have sexual intercourse. Such an interpretation might have been sufficient to do justice in the bygone era. But in the present day of scientific and technological advancement, access can be understood more specifically to mean access of the sperm to the ovum. If such access is contra indicated conclusively by the DNA test, that can certainly be reckoned as evidence of non access which will help the husband to walk out of the Padmavyuha of Section 112 through the only exit door of non access recognised under Section 112. Not to understand Section 112 in that dynamic manner would, according to us, be certainly an anachronism. Interpretation has to keep pace with modern scientific and technological advancement and we do, in these circumstances, feel that the scope of the expression “access” in Section 112 can, in the present day context, be further realistically limited. “Access” in Section 112 of the Evidence Act can hereafter be safely understood as the possibility of access of the sperm of the man to the ovum of the woman and DNA test result which shows authentically that the sperm of the man did not actually access the ovum of the woman can be admitted as evidence of non access permitted under Section 112.

 

54. We have already taken the view that Section 112 is inapplicable and cannot be called in aid when the precise question to be decided is the validity of the marriage challenged on the ground that the wife was pregnant through another on the date of marriage. In that view of the matter, it is unnecessary to enter any specific findings on the subsequent questions of law raised. But we feel compellingly persuaded to opine that even if Section 112 were held to be applicable, the following conclusions are perfectly possible now.

(i) It is possible to hold that Section 112 deals only with the presumption of legitimacy and not paternity. The concept of legitimacy need not and does not invariably in all cases include the concept of paternity. There may still be areas within the concept where there is no overlapping between the two concepts. In the interest of welfare of the child, it is perfectly permissible to burden a nonbiological father with obligations arising from legitimacy of a child born during his valid matrimony with the mother of the child. In that event the child’s interest – his maintenance, upkeep and inheritance, can be protected by such a presumption. It is not necessary to include within the presumption of legitimacy the presumption of paternity invariably in all cases. 

(ii) As authentic and scientific evidence of the precise date/period when the child was begotten (i.e., the gestational age of the foetus) is forensically possible now, access/non-access as on such date/period has to be specifically ascertained by courts before choosing to draw the conclusive presumption under Section 112 of the Evidence Act. 

(iii) The expression “access” in Section 112 of the Evidence Act in the modern era of scientific and technological development is not to be construed merely as physical proximity or the possibility of sexual intercourse between the spouses. It is to be reckoned more appropriately and specifically as the possibility of access of the sperm of the man to the ovum of the woman. In that view of the matter, the result of a valid D.N.A test would be admissible to authentically rule out (or confirm) access under Section 112 of the Evidence Act. Such an interpretation will be more consistent with the times and will help the courts not to squander available and acceptable evidence of DNA test in a controversy regarding disputed paternity. 

(iv) Such an understanding of Section 112 of the Evidence Act will help to make the presumption thereunder to be constitutionally valid and make the law fair, just and reasonable. Such an approach would help to avoid the consequence of the law being arbitrary capricious, fanciful and oppressive. The vice of unconstitutionality under Articles 14 and 21 can certainly be attempted to be avoided by adopting such an interpretation. Such an interpretation will help the courts to do justice on the basis of facts and not perpetrate injustice on the basis of legal presumption.

55. We shall now proceed to consider the factual controversies in the present case and attempt to resolve them primarily in the light of the conclusions of law enumerated in paragraph 38 above. Betrothal took place on 05-05-2003. Marriage took place on 17-05-2003. The child was born on 06-01-2004. The expert evidence available clearly suggests that the child was begotten prior to 17-05-2003, ie. the date of marriage. That is certainly a possible conclusion. That to us is the more acceptable conclusion on facts also. We have considered the oral and documentary evidence including the evidence of experts under Section 45 of the Evidence Act. The foetus was 61 days of gestational age on 26-06-2003. That takes us back to 27-04-2003. To that a maximum of 14 days have to be added. To that provision is made for possible inexactitude in computation. Even after providing for all that it is opined by PW 2 that sexual intercourse must have taken place prior to 17-05-2003 (i.e., the date of the marriage) – at any rate, prior 11-05-2003. PW 4 another expert in Gynaecology also certified that the child must have been conceived prior to 17-05-2003. PW5 who had attended on the respondent during the initial days of pregnancy also asserted that the child must have been conceived before 08-05-2003, at any rate, prior to 10-05-2003. The opinion of RW 2 also confirms that fertilisation must have taken place on 11-05-2003. To this he adds that 7 days either side can be included to make up the error in ascertainment of the gestational age by USG. That opinion is not shown to be authentic. When considered in the light of Exts. X1 and X2 we prefer to accept the opinion of PWs. 2, 4 and 5 over the opinion of RW 2. We conclude that the child must have been begotten/conceived prior to 17-05-2003 during which period there was no possibility admittedly of conception through the appellant. The DNA test results confirm that the appellant is not the biological father of the child born. The presumption under Section 112 of the Evidence Act has already been held to be not available in favour of the respondent to help the court for resolving the controversy in this case. The validity of the marriage is in question. To resolve that controversy as we have already held, Section 112 cannot be called in aid. The question has to be decided without the aid of the presumption under Section 112 of the Evidence Act. Not only the evidence of non access, any other admissible and acceptable data can be made use of – including DNA test results, by the adjudicator to ascertain whether the appellant is responsible for the pregnancy.

 

56. We have authentic data of the DNA test. Exts. X1 and X2 do both indicate that the appellant is not the biological father of the child born to the respondent. The court had sent the parties for such an expert examination. Ext. X1 turned out to be against the respondent and at the instance of the respondent this Court had directed that a further test be conducted. Ext. X2 also confirms that the appellant is not the biological father of the child born. In the absence of the presumption under Section 112 of the Evidence Act there is nothing to suggest the responsibility of the appellant for the conception and pregnancy. Exts. X1 and X2 must in the circumstances clinch the issue. There is no contention or possibility of conception of the pregnancy after the respondent’s marriage with the appellant on account of physical relationship with any other. That again confirms that the pregnancy/conception must have been prior to the date of marriage. There is no contention that the marriage was valid and the extra marital sexual relationship after marriage may/could have caused the pregnancy. Such a weird possibility can be safely ruled out. We do, in these circumstances, take the view that the respondent was pregnant on the date of the marriage and that the appellant was not responsible for such pregnancy. The appellant, we hold on the basis of Exts. X1 and X2, is not the biological father of the child so begotten. His consent for marriage is, we hold, vitiated on the ground of fraud. The marriage deserves to be declared null and void.

 

57. Even assuming that Section 112 of the Evidence Act is applicable, the available evidence indicates that the fertilisation was prior to the date of marriage. Exts. X1 and X2 further help this Court to conclude that there was non access between the spouses on the date when the fertilisation of the ovum took place. This is indicated conclusively by the DNA test reports which show that the appellant is not the biological father of the child.

 

58. The argument that the conduct of the wife must suggest convincingly that she was not pregnant through any other on the date of marriage cannot be accepted. The mere fact that she had submitted herself to DNA test initially and had insisted to get the DNA test repeated are not, according to us, sufficient to wish away the result of such DNA tests. May be, the respondent was unaware of the conclusiveness of the test and may have offered to get such test conducted and repeated in the hope that such test results would not go conclusively against her. Even otherwise she may have been obliged to present a picture of injured innocence and offer herself for the test in an obvious bid to highlight the picture of injured innocence. This circumstance, strenuously canvassed, is not sufficient for us to ignore the DNA test results.

 

59. We do, in these circumstances, come to the conclusion that the impugned order warrants interference. We are convinced that the respondent was pregnant on the date of her marriage with the appellant and that the appellant was not responsible for such pregnancy. The consent of the appellant for the marriage is thus vitiated by fraud, he having been kept in the dark about such pregnancy and it being evident beyond the pale of controversy that he would not have consented to such marriage if he had knowledge of such pregnancy. We are satisfied that this appeal deserves to be allowed and a decree for declaration of nullity under Section 19 deserves to be granted.

60. In the result:

a) This appeal is allowed; 

b) The impugned order is set aside; 

c) A decree of nullity is granted declaring the marriage between the appellant and the respondent solemnised on 17-05-2003 at St. Mary’s Ferona Church, Maruthonkara, to be null and void; 

d) The parties are directed to suffer their respective cost.

Mat. Appeal No.31 of 2010:

1. This appeal is directed against an order passed by the family Court directing payment of maintenance to the claimants/respondents – allegedly the wife and child of the appellant.

 

2. When this matter came up for hearing, both sides submitted that the decision in this appeal will have to follow the decision in Mat. Appeal No.75 of 2008. That appeal is disposed of by us as per the above judgment. We have come to the conclusion that the marriage between the appellant and the respondent is null and void and have declared so. We have taken the view that Section 112 of the Evidence Act is not available for the 2nd respondent/ the child of the 1st respondent. The respondents/claimants are not hence the legally wedded wife or legitimate or illegitimate child of the appellant. They are hence not entitled to maintenance.

 

3. It follows that as agreed by the parties, following the decision in Mat. Appeal No.75 of 2008, this appeal is also only to be allowed.

4. In the result:

a) This appeal is allowed; 

b) The impugned order is set aside; 

c) Parties are directed to suffer their respective costs.

 

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