Kasi Ammal, minor by Mother and Guardian, Kanchi Ammal vs Ramasami Reddiar and Another

Satyanarayana Rao, J.—This second appeal raises the question of the paternity of the second plaintiff. The first plaintiff is the mother of the

second plaintiff. The first plaintiff and the first defendant were married 24 or 25 years before the suit. The second plaintiff was born on the 23rd

June, 1926, as Ex. P.-1 the birth extract shows. The two plaintiffs filed the suit out of which this second appeal arises for recovery of maintenance

and for provision for the marriage expenses of the second plaintiff. They also impugned the validity of a gift deed executed by the first defendant in

favour of the second defendant as being a sham and nominal document intended to defeat the maintenance rights of the plaintiffs. The main defence

of the first defendant was that a few months after the marriage the first plaintiff attained puberty and ever since was leading an unchaste life. She

first came into contact with one Ammu Reddiar with whom she lived as wife for a period of six years, during which period the second plaintiff was

born and thereafter the two plaintiffs and Ammu Reddiar migrated to Singapore and came back six years later. After their return to India the first

plaintiff came into contact with another person and ever since lived with him as his wife. For these reasons he contended that he was not liable to

pay maintenance to the two plaintiffs and make any marriage provision for the second plaintiff. The Courts below have concurrently found that the

first defendant''s case is true and that the first plaintiff was leading an unchaste life as pleaded by the first defendant and that the second plaintiff, the

daughter, was the illegitimate child of the first plaintiff and that the first defendant was not her father. There is no appeal by the first plaintiff

attacking the finding against her. The second appeal was filed only by the second plaintiff. The learned Subordinate Judge accepted the evidence

adduced on behalf of the defendant and rejected the oral evidence adduced on behalf of the plaintiff, to establish that till two years prior to suit she

was living continuously in the house of the first defendant and that it was during that period that the second plaintiff was born.

The only point argued on behalf of the plaintiff is that the learned Subordinate Judge did not pay attention to the presumption u/s 112 of the

Evidence Act. The argument is that u/s 112 of the Evidence Act there is a presumption that a child born in lawful wedlock is the legitimate child of

the husband of the woman. This presumption can be rebutted only by proof by the husband that he had no opportunity of intercourse. The word

access "" was construed by several decisions. An authoritative interpretation of the word is to be found in the judgment of the Privy Council in

Karpaya Served v. Mayandi (1933) 66 M.L.J. 288 : ILR 12 Rang. 243(P.C.), their Lordships pointed out in that case:

It was suggested by counsel for the appellants that ''access'' (in the section implied actual co-habitation, and a case from the Madras reports was

cited in support of this contention. Nothing seems to turn upon the nature of the access in the present case, but their Lordships are satisfied that the

word means no more than opportunity of intercourse.

The Madras decision referred to in this passage apparently was the decision of Venkatasubba Rao, J., in Jagannatha Mudali and Others Vs. P.T.

Chinnaswami Chetti (dead) and Others, . There the learned Judge interpreted the word to mean sexual intercourse. This view is therefore no

longer tenable and in the later decisions of this Court in T. Krishnappa and Another Vs. T. Venkatappa and Others, , Hanumanlha Rao v.

Ramachandrayya (1944) 1 M.L.J. 285 : ILR 1945 Mad. 53, the view of the Privy Council was followed.

The argument of Mr. Ramaswami Aiyar for the appellant, however, was that it was not enough for the husband to prove that he had no actual

co-habitation with the plaintiff during the material period, but that he must also prove that he had no opportunity of intercourse with the first plaintiff.

The finding of the learned Subordinate Judge was as follows:

The evidence of the 1st defendant and his 1st, 4th and 5th witnesses stands on a much better footing and is more in keeping with the probabilities

and so believing that evidence and disbelieving the evidence of the 1st plaintiff and her witnesses I find that she is an unchaste wife with whom the

first defendant has nothing to do and that her daughter the second plaintiff is illegitimate.

I interpret this finding to mean that the first defendant never had an opportunity of intercourse with the first plaintiff, though it was elicited in the

evidence that the first plaintiff was living with Ammu Reddiar in the village of the 1st defendant in. a different house, and that during that period the

plaintiff was born. In view of the evidence adduced on behalf of the first defendant that he never went to Ammu Reddiar''s place or to the place

where this woman lived which was accepted by the Courts below and also in view of his evidence that after the marriage he never touched this

woman, the finding of the learned Subordinate Judge must be understood to mean that though they were living in the same village, the first

defendant had no opportunity of intercourse. The one method of proving that a man had no opportunity of intercourse is to conclusively establish

that he had no intercourse with the woman. If he is able to establish to the satisfaction of the Courts that he had no intercourse with the woman I

fail to see why it should be incumbent upon him to prove further that he had no opportunity of an intercourse. In my view the finding therefore of

the learned Subordinate Judge amounts to saying that the first defendant had no opportunity of intercourse with the first plaintiff at the material

period. There is no warrant for the contention urged on behalf of the appellant that if a man proves non-access in the sense that he never had

intercourse with the woman he should prove further that he had no opportunity of having intercourse. He might have had an opportunity, but if he

proves that he had no actual co-habitation with the woman during the period, in my opinion he discharges the burden of proving non-access within

the meaning of Section 112 of the Evidence Act. Of course the section has to be interpreted and applied as pointed out in Mayandi Asari (dead)

and Others Vs. Sami Asari alias Muthusami Asari being minor represented by his next friend Ganapathi Asari and Another, , with reference to the

facts and the circumstances of each case in order to find out whether really there was an opportunity of intercourse or not. If he had an opportunity

of intercourse, but notwithstanding such opportunity, if the husband proves to the satisfaction of the Court that he had no intercourse in my opinion

he establishes thereby non-access within the meaning of Section 112 of the Evidence Act. As pointed out in Hanumantha Rao v. Ramachandrayya

(1944) 1 M.L.J. 265 : ILR 1945 Mad. 53, the rule in Russell case (1924) A.C. 687, that the evidence of the husband is not admissible in bastardy

proceedings does not apply to India and the evidence of the husband cannot be ruled out. There is no decision which goes to the length of holding

that in a case where the husband establishes that he had no actual co-habitation with the wife at any time it does not amount to proof of ""non-

access"" within the meaning of Section 112 of the Evidence Act.

I am therefore of opinion that the decision of the learned Subordinate Judge is correct. The second appeal fails and is dismissed with costs. No

leave.