KANTI DEVI Vs. POSHI RAM

JUDGEMENT

(1.) Leave granted.

(2.) What is the standard of proof required to displace the conclusive presumption in favour of paternity of a child born during the subsistence of a valid marriage Is it necessary that non-access should be proved beyond reasonable doubt, or would it be sufficient to prove it by a preponderance of probabilities The maxim "Pater est quem nuptiae demonstrant" (The father is he, whom the nuptials indicate) has gained a sturdy legislative recognition which resulted in the formulation of the rule of evidence envisaged in Section 112 of the Evidence Act (for short the Act). It is based on the English rule that the child born in the wedlock should be treated as the child of the man who was then the husband of its mother. Its only exception is when the husband proves that he had no access to his wife at the time of conception of that child. Section 112 of the Act reads thus :

(3.) The section when streched to its widest compass is capable of encompassing even the birth of a child on the next day of a valid marriage within the range of conclusiveness regarding the paternity of its mother's husband, but it excludes the birth happened just one day after the period of 280 days elapsing from the date of the dissolution of that marriage. The question regarding the standard of proof for disrupting the conclusiveness of the presumption has been mooted before us as a single Judge of the High Court of Himachal Pradesh refused to interfere in a second appeal with a finding recorded by the District Judge in a first appeal that the respondent-plaintiff has discharged his burden of proof and consequently the presumption stood rebutted. The facts which led to the said finding are the following :