Even When Child Birth Occurred Within 4 Months Of Marriage, Presumption Of Legitimacy U/S 112 Evidence Act Can Apply: Kerala High Court
The High Court held that even where a child is born within four months of marriage, Section 112 of the Evidence Act raises a conclusive presumption of legitimacy unless non-access between the spouses is proved.
Justice Sathish Ninan, Justice P. Krishna Kumar, Kerala High Court
The Kerala High Court has held that the statutory presumption of legitimacy under Section 112 of the Evidence Act can apply even in a case where a child is born within four months of marriage, unless it is established that the spouses had no access to each other at the time the child could have been begotten.
The Court held that for the applicability of Section 112, it is not a prerequisite that access between the spouses must be confined to the post-marital period, and that the presumption can be displaced only by proof of non-access at the time when the child could have been begotten.
A Division Bench comprising Justice Sathish Ninan and Justice P. Krishna Kumar while holding that “the trial court committed a manifest error in discarding the plaintiffs’ claim by holding that Section 112 of the Evidence Act could not be invoked merely because the child was conceived prior to the marriage”, elaborated: “Even when the birth occurred within four months of the marriage, Section 112 of the Evidence Act raises a conclusive presumption as to the legitimacy of the child, unless it is proved that the parties to the marriage had no access to each other at any time when the child could have been begotten".
The Bench further clarified that “for the applicability of Section 112, it is not a prerequisite that the period of access should be confined to the post-marital period”.
Senior Advocate P.B. Krishnan appeared for the appellants, while the respondents were represented by M.P. Ashok Kumar, Advocate.
Background
The appellants were plaintiffs in a suit for partition of properties belonging to a person who had died intestate. The dispute before the Trial Court centred on whether the second plaintiff was the daughter of the deceased and, consequently, whether she was entitled to a share in the suit properties as a Class I heir.
The Trial Court held against the second plaintiff and passed a preliminary decree excluding her from partition, on the ground that her paternity had not been established. Aggrieved by the said finding and the preliminary decree, the plaintiffs preferred the present appeal before the Kerala High Court.
Court’s Observation
The High Court examined the scope and effect of Section 112 of the Evidence Act, which provides a conclusive presumption as to the legitimacy of a child born during the continuance of a valid marriage. The Court noted that the provision can be displaced only by proof that the parties to the marriage had no access to each other at any time when the child could have been begotten.
The Court observed that even when the birth occurs within four months of the marriage, Section 112 raises a conclusive presumption of legitimacy, unless non-access is established. It was further held that for the applicability of Section 112, it is not a prerequisite that the period of access should be confined to the post-marital period.
Relying on the decision of the Supreme Court in Kamti Devi v. Poshi Ram, the Court noted that the presumption under Section 112 is capable of encompassing even a child born immediately after a valid marriage, so long as access between the spouses is not disproved. The Court reiterated that the burden to establish non-access lies squarely on the party seeking to rebut the presumption.
The Court also referred to Section 32 of the Indian Evidence Act and noted that written or verbal statements made by a deceased person as to certain matters are themselves relevant facts. It observed that statements relating to the existence of any relationship by blood, marriage, or adoption are relevant, provided that the person making the statement had special means of knowledge of the relationship and that the statement was made before the dispute was raised.
The Court held that where the person who made the statement is dead, such a statement can be proved through a person who directly heard it when it was made. Since the declarant was deceased, the verbal statement attributed to him regarding his relationship by blood with the child, made at a point of time much prior to the commencement of the dispute, was held to be admissible under Section 32(5) of the Evidence Act.
The Court further observed that such evidence is an exception to the rule of hearsay and is substantive in character. It held that the Trial Court erred in discarding the oral testimony on the ground that it was not direct evidence.
The High Court concluded that the Trial Court had committed a manifest error in rejecting the claim merely on the ground that the child was conceived prior to the marriage, without a proper appreciation of the statutory presumption and the evidence on record.
Conclusion
Holding that the oral and documentary evidence adduced by the plaintiffs was legally admissible and sufficient to establish the disputed relationship, the Kerala High Court concluded that the second plaintiff was the legitimate daughter of the deceased and entitled to an equal share in the suit properties.
Accordingly, the appeal was allowed, and the preliminary decree was modified to include the second plaintiff as a sharer in the partition.
Cause Title: Sujatha Krishnan & Ors. v. Radha Mohandas & Ors. (Neutral Citation: 2025:KER:97956)
Appearances
Appellants: P.B. Krishnan, Senior Advocate; R. Sreehari, Advocate; Sachin Vyas, Advocate
Respondents: M.P. Ashok Kumar, Advocate; Bindu Sreedhar, Advocate; Asif N, Advocate
