AHILANDATHAMMAL Vs. KATHAYYA KONAR

JUDGEMENT

(1.) This appeal arises out of proceedings initiated by respondent (husband) under the Hindu Marriage Act for divorce of the appellant, on the ground that she had been living in adultery and that the child born to her was as a result of adulterous intercourse. The learned Subordinate Judge dismissed the application, on the ground that the respondent had failed to prove that the appellant was living in adultery. But on appeal preferred by the respondent, the learned District Judge held that, though the respondent was not entitled to a decree for divorce, he would be entitled to a decree for judicial separation, on the ground that the appellant conceived and gave birth to a child as a result of sexual intercourse with some other person other than the husband. It is against this judgment and decree, the wife has preferred the present second appeal. It is necessary to state a few facts for a satisfactory disposal of this case. The respondent is a resident of Srirangam. He is also possessed of some immoveable property and a garden. He is also doing milk business. He has two sons by his deceased first wife. He married the appellant in the year 1957. At the time of marriage, the appellant was aged 15 years and the respondent was aged 46. The appellant is a poor lady, her father being a watchman in the Srirangam temple. The sons of the respondent -husband by the first wife did not like their father marrying a second time, and on that account, there were misunderstandings between the father and the sons. On account of the frequent quarrels in the family between the father and the sons, the appellant stayed only for a short time in her husband's house. She was, therefore, residing in her parents' house in the next street. The respondent was having a cattle shed opposite the house of the appellant. Originally, the respondent himself started proceedings for restitution of conjugal rights. But he did not pursue it, with the result that application was dismissed. It is the case of the appellant that the respondent, after the dismissal of that application, used to visit her in her parents' house frequently. It was at that time the appellant became pregnant and gave birth to the child in a hospital. It is only after the birth of the child, the respondent started proceedings that the appellant was living in adultery and that the child born to her did not belong to him. Before the learned Subordinate judge, the respondent admitted that he did not complain at any time that the appellant's conduct was immoral or bad. He had never seen her going from his house during night time and he had never seen her going with any man or talking to any man. He also admitted that none of his relations or castemen ever told him that her conduct was bad or immoral. On the other hand, evidence has been adduced by the appellant that the respondent used to visit her in her parents' house. R.W. 2 and R.W. 4 have also given evidence that they have often seen the respondent going to the appellant's house during night time.

(2.) The learned District Judge rightly observed that the burden of proof undoubtedly lay on the respondent to establish non -access, but committed an error in observing that the matter had got to be decided on probabilities. He ordered judicial separation on the ground that the husband had established non -access to his wife and that the child was born as a result of sexual intercourse by the wife with some other person.

(3.) The crucial question for consideration is whether the respondent had established non -access to his wife. When the appellant gave birth to the child, she was living just next street to the respondent. The child was born during wedlock. It is settled law that every child born of a married woman during the subsistence of the marriage is prima facie legitimate. In every case, the husband and wife must have had opportunities of access to each other during the period in which the child could be begotten and born in the course of nature and they must not be proved to be impotent. The presumption, however, is not a presumption juris et de jure which cannot be rebutted, but a presumption only which may be rebutted by evidence of circumstances proving the contrary and such evidence must not be slight in its nature, but strong and satisfactory. See Halsbury's Laws of England, 3rd Vol., 3rd Edn. page 87, para 139. The causes of adulterous bastardy are reduced to two (i) the impotence of the husband and (ii) the absence of sexual intercourse between the husband and wife when the period of wife's gestation commenced. The general rule of law or presumption in favour of legitimacy being so strong, the evidence to disprove the existence of sexual intercourse between the husband and the wife is necessarily to be conclusive. The repudiation of the child by the husband or his disinheriting the child on the ground that he was not its father does not constitute the child a bastard. The Court is not concerned in cases of this nature with the question of the probability or improbability of the legitimacy of the child but with the question of the impossibility alone. In one of the earliest cases in England one of the Judges observed that although the woman eloped from her husband and remained with her adulterer, yet the son was legitimate and should inherit, unless the other party could show some special matter i.e., an impossibility of access from which the child could be the off spring of its pretended parent. Legitimacy has always been made to depend upon the single fact, whether possible or impossible and not whether probable or improbable. King v/s. Luffa 8 East 202 is authority for the view that the law requires, before a person is deprived of that which is his birth -right when he is born in marriage, that an absolute natural conclusive impossibility should be made out by the other side. In Routledge v/s. Carruthers (decision of Scottish Government Extracts at page 344 and 345 of the Report of Proceedings of the House of Lords) on the claim to the Baron of Gardner. By Devis Le Merchant, 1828 Lord Craig observed: