Vasu v. Santha And Others

1. Plaintiff is the appellant in this second appeal. He married the 1st respondent in march, 1964, And during the subsistence of that marriage respondents 2 and 3 were born. Unfortunately, Plaintiff and 1st respondent fell out. In 1969 she filed an application for maintenance under s. 488 of the criminal procedure code. The appellant did not keep quiet. He filed an application for divorce and the marriage was dissolved even before the final disposal of the application for maintenance. The petition filed against him for maintenance was defended by him alleging that the 1st respondent was leading an adulterous life and respondents 2 and 3 are not his children. This was not accepted by the magistrate court and consequently an order for maintenance at the rate of rs. 251 - and rs. 20/ - per mensem to respondents 2 and 3 was passed against him. His attempt to vacate that order by revision to this court was not successful and so he filed a suit for a declaration that respondents 2 and 3 are not his children and are not entitled to any maintenance from him. This was strongly opposed by the defendants. The learned munsiff after taking evidence dismissed the suit on the ground that the plaintiff has failed to prove that respondents 2 and 3 are not his children. This was confirmed in appeal and the second appeal is filed in these circumstances.

2. The appellant admits that respondents 2 and 3 were born during the subsistence of his marriage with the 1st respondent. So, Under s. 112 of the evidence act this fact is conclusive proof that they are his legitimate children unless he can show that he had no access to the 1st respondent at any time when they could have been begotten. In other words, This conclusive presumption of law can be displaced only by proof of the particular fact mentioned in the section, Namely, Non - access between the parties to the marriage at a time when, According to the ordinary course of nature, He could have been the father of the children. Access and non - access only connote existence of opportunities for marital intercourse (chilukuri venkateswarlu v. Chilukuri venkatanarayana air. 1954 s. C. 176 & parameswaran nair v. Janaki amma = air. 1972 kerala 80). From the evidence of pw. 1 it is clear that this opportunity was there. He has stated that four months after the marriage is march, 1964, The 1st respondent was staying with him in his

house. He has also admitted that they were living as husband and wife during that time. He has also admitted that after the birth of the 1st child the 1st respondent and child were staying with him in his bouse. The 1st respondent has sworn that respondents 2 and 3 were conceived while she was staying with the appellant in his house. The appellant has not shown that these children could not have been begotten during the period when he was staying with the 1st respondent as husband and wife. There is no evidence other than his interested testimony to prove that he is not the father of these children. When he was examined before the magistrate's court he had no definite case regarding the paternity of these children except that they are not his children. But, In the suit his case is that respondent no. 2 is the child of the 1st respondent's uncle's son and that the 3rd respondent is the child of one sreedharan, A neighbour of the 1st respondent's uncle. It has to be remembered that the dispute regarding the paternity of these children is raised by him only after the 1st respondent filed in 1969 an application against him for maintenance. By the time the children had attained the age of 4 and 2 even as per the appellant's case. The appellant stated that he had his own doubts about the chastity of the 1st respondent even when he was staying with her as husband and wife. If so he would not have taken her to his house after the first child was born. This is an improbable story now cooked up after the dispute arose between the parties. Hence it cannot be said that he has established non - access to the 1st respondent at a time when these children could have been begotten.

3. The appellant's main complaint here is that his application for a blood test of himself and the children was wrongly disallowed and this has resulted in a denial of an opportunity to prove his case that respondents 2 and 3 are not his children. Medical science has developed very much and it is said that on an analysis of the blood groups of the husband and children if it is found that a child's blood has some constituent or characteristic that is absent from the blood of both husband and wife the husband cannot be the father. The evidential value of a blood test is now very much relied on in some countries. In england until recently if paternity of a child was in issue blood test was not being allowed on the ground that that will not help the husband to prove non - access at the time when the child could have been begotten. But now the english law has been changed. Family law reforms act, 1969, Has been enacted. The rigour of the law in the matter of rebuttal of the presumption of legitimacy has been relaxed. Even if the husband had an opportunity to have a sexual intercourse with his wife, If the balance of probability indicates that the child is not the child of the husband, That is enough to rebut the presumption. Under that law a blood test also has been allowed to be had to prove the issue probable or improbable. Along with the relaxation of the rigour other statutes have been enacted in england under which provision is made for the care, Maintenance and protection of the children by their father and also for legitimising them in certain circumstances. The stigma or disability of being an illegitimate is very much watered down by these enactments and by the change of attitude of the society also. Even there there was a controversy whether the court can compel blood test to be taken of the children, If so, Under what jurisdiction. In petitions for custody of the child the court had very often refused blood test on the ground that it is not in the welfare of the child to undergo that test and risk itself to be adjudicated a bastard. The refusal to undergo that test by the husband or the children was never treated as unreasonable also (see in this connection b v. B and b. 1969 (3) all england law reports 1106). The interest of justice was even subordinated to the welfare of the child. Slowly this view also got changed and in s v. Mc c and m (1970) 1 all england law reports 1162) lord denning m. R. In the court of appeal held that the court must have in the interests of justice the best evidence available and in these days when expert science evidence by means of a blood test - can be had that should not be refused on the sole ground that it may not be in the interests of a child. This decision was taken in appeal to the house of lords and the house of lords in s v. S (1970 (3) all england law reports 107) endorsed this view. The head note given to that case in the report runs thus:

"in determining, In cases where a legitimacy issue is to be tried, Whether or not to order that a blood test of an infant should be made, The high court is not in general exercising its custodial jurisdiction where the interest of the infant is paramount; but while the court must protect the interest of the infant it is entitled to look at all the evidence available including that of a blood test and need not be satisfied before ordering a blood test that the outcome thereof will be for the benefit of the infant."

all the five law lords who heard that case have given very interesting and weighty reasons to hold that a blood test will be an important piece of evidence to decide the question of legitimacy. This view was taken, As stated earlier, As the law regarding onus of proof has been changed by s. 26 of the english family law reforms act, 1969. '

4. A special protection is given by the law to the status of legitimacy in india. The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child. Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child. If she had access to her husband during the time the child could have been begotten the law will not countenance any attempt on the part of the husband to prove that the child is not actually his. The presumption of law of legitimacy of a child will not be lightly repelled. It will not be allowed to be broken or shaken by a mere balance of probability. The evidence of non - access for the purpose of repelling it must be strong, Distinct, Satisfactory and conclusive (see morris v. Davies = (1837) 5 cl. & fin. 163). The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by considerations of public policy for there are a variety of reasons why a child's status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in england to protect illegitimate children. No doubt, This may in some cases require a husband to maintain children of whom he is probably not their father. But, The legislature alone can change the rigour of the law and not the court. The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted.

5. There is an aspect of the matter also. Before a blood test of a person is ordered his consent is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful. Here no consent is given by any of the respondents. It is also doubtful whether a guardian ad litem can give this consent. Therefore, In these circumstances, The learned munsiff was right in refusing the prayer for a blood test of the appellant and respondents 2 and 3. The learned judge is also correct in holding that there was no illegality in refusing a blood test. The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection subayya gounder v. Bhoopala (air. 1959 madras 396) and the earlier decision of the same court in venkateswarlu v. Subbayya (air. 1951 madras 910). Such an adverse inference which has only a very little relevance here will not advance the appellant's case to any extent. He has to prove that he had no opportunity to have any sexual intercourse with the 1st respondent at a time when these children could have been begotten. That is the only proof that is permitted under s. 112 to dislodge the conclusive presumption enjoined by the section. That proof is wanting in this case. Hence the second appeal fails. It is dismissed with costs.

dismissed.