Chilukuri Venkateswarlu vs Chilukuri Venkatanarayana

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 73 of 1953

Decision Date: 8 December 1953

Coram: B.K. Mukherjea, Natwarlal H. Bhagwati, B. Jagannadhadas

In this case, the Supreme Court of India considered an appeal filed by Chilukuri Venkateswarlu against Chilukuri Venkatanarayana. The judgment was delivered on 8 December 1953 by a bench consisting of Justice B. K. Mukherjea, Justice Natwarlal H. Bhagwati and Justice B. Jagannadhadas. The citation of the decision is 1954 AIR 176 and 1954 SCR 424. The matter arose under section 112 of the Indian Evidence Act, 1872, which creates a conclusive presumption that a child born during a lawful marriage is legitimate unless the plaintiff can show that the husband had no access to the mother at the time of conception. The Court explained that the presumption may be displaced only by proof that the parties were unable to have marital intercourse during the relevant period, and that such proof may be established by direct or circumstantial evidence, but it must be clear and satisfactory because the law favours legitimacy. The Court noted that the English common-law rule prohibiting spouses from testifying to non-access in order to bastardise a child born in wedlock does not apply in India, as the Indian Evidence Act contains no such provision and the rule has been abolished in England by section 7 of the Matrimonial Causes Act, 1950. The Court further observed that, on the evidence before it, the husband (defendant No. 1) had not succeeded in demonstrating a lack of opportunity for intercourse with his wife (defendant No. 2) at the time the infant plaintiff was conceived, and consequently the Madras High Court was in error when it held that there was no opportunity for access during the material period. The appeal was presented as Civil Appeal No. 73 of 1953 under special leave against the judgment and decree of the Madras High Court dated 31 January 1950, which had reversed the decree of the Subordinate Judge, Bapatla, in Original Suit No. 96 of 1944. The suit had originally been instituted by the infant plaintiff, represented by his maternal uncle as next friend, seeking possession of a half share in certain properties alleged to be joint family property. The appellant was represented by counsel and the respondent by counsel.

In this case the plaintiff, who was an infant represented by his maternal uncle as next friend, sought recovery of possession of a half share in the properties listed in the schedule to the plaint. He claimed that those properties were the joint family assets of himself and his father, the defendant numbered one, and that he held an equal share with his father. The plaintiff was admittedly the son of defendant number two, who was one of the legally married wives of defendant number one; however defendant number one denied that he was the plaintiff’s father and accused the plaintiff’s mother of misconduct. The third defendant, who was the other living wife of defendant number one and who had no children of her own, was alleged to have harboured ill-feeling and jealousy toward the plaintiff and his mother, and to have poisoned her husband’s mind against them. As a result, defendant number one had filed a suit in the Court of the District Munsif at Ongole challenging the legitimacy of the plaintiff. It was because of this conduct that the present suit was instituted. The defence raised by defendant number one consisted of a denial of paternity, and the entire controversy revolved around whether the plaintiff was the legitimate son of defendant number one by his second wife, defendant number two. On the admitted facts, section 112 of the Indian Evidence Act applied, creating a conclusive presumption of legitimacy for a child born during the continuance of a lawful wedlock, unless it could be proved that the married parties had no access to each other at any time when conception could have occurred. Consequently the question for determination was whether defendant number one, on whom the burden of proving non-access rested, had succeeded in meeting that burden on the evidence presented. The trial court found that defendant number one had failed to prove non-access and thus decided in favour of the plaintiff, substantially allowing the plaintiff’s claim. Defendant number one appealed this decision to the Madras High Court. The learned judges hearing the appeal reached the opposite conclusion, holding that the facts and circumstances allowed a reasonable inference of non-access between husband and wife, and consequently reversed the trial court’s judgment and dismissed the plaintiff’s suit. The propriety of the High Court’s decision was challenged before this Court on behalf of the plaintiff, who had been granted special leave to file the appeal in forma pauperis.

The presumption created by section 112 of the Indian Evidence Act was described as a conclusive presumption of law that could be displaced only by proof of the specific fact mentioned in the provision, namely, non-access between the spouses at a time when, according to the ordinary course of nature, the husband could have been the father of the child. The Privy Council had explained that the terms “access” and “non-access” signify, respectively, the existence and the non-existence of opportunities for marital intercourse. Counsel for the plaintiff acknowledged that non-access could be established not solely by positive or direct evidence; it could be proved, like any other physical fact, by relevant direct or circumstantial evidence, as illustrated in Karapaya v. Mayandy (12 Rang 243). Nevertheless, because the presumption of legitimacy enjoys a strong favour under the law, the proof of non-access was required to be clear and satisfactory. The counsel also did not seriously contend that the English common-law principle, which bars either spouse from giving evidence of non-access after marriage in order to bastardise a child born in lawful wedlock, applied to legitimacy proceedings in India. No such rule was found anywhere in the Indian Evidence Act, and the old common-law doctrine had been repealed in England by section 7 of the Matrimonial Cause Act, 1950. With the legal position thus clarified, the Court’s primary task was to determine whether the learned judges of the High Court had reached a correct decision on the facts of the case. To accomplish this, a clear picture of all material events as they were presented in evidence was necessary, and the Court accordingly began with a narrative of the earlier facts that were largely uncontested.

Defendant No 1 admitted that he had married three wives. The first wife died, leaving a son who was two or three years old at the time of her death. Subsequently, Defendant No 1 married the mother of the plaintiff, an event that occurred in or about the year 1930. From the time of this marriage until about 1940, the couple appeared to live quite happily, although they had no issue of the marriage. Sometime before June 1940, the plaintiff’s mother fell ill and was sent to the Government Hospital at Guntur for treatment. Her step-son, that is, the son of Defendant No 1 by his predeceased wife, who was also suffering from certain ailments, accompanied her to the hospital. After approximately a month, both returned, and because Defendant No 2 was medically advised to live separately from her husband for a period, she went to her father’s residence. (1) Vide Russell v. Russell [1924] A.C. 687. (2) Vide Re Feniot [1952] 1 All E.R. 1228.

In this case, after the death of the son of defendant No 1 in June 1940, defendant No 1 married a third woman, who was identified as defendant No 3 in the suit. Defendant No 2 alleged that after the marriage to the third wife, her husband continued to treat her kindly for about a year, but thereafter his attitude changed; he became cold, indifferent and began to neglect her. She complained to him about this neglect, and he responded that she might have to leave. Consequently, defendant No 2 returned to her father's residence. On 19 March 1942 she filed an application before the District Munsif Court at Ongole, seeking permission to proceed against her husband in forma pauperis for separate maintenance. The plaint alleged that the husband had abandoned and neglected her. Defendant No 1 answered the application on 7 September 1942, denying any neglect or indifference toward his wife's health and comforts. He asserted that because the plaintiff had not borne him any child and the son of his first wife had died, he had no alternative but to marry a third wife in order to obtain progeny. In his counter-affidavit he stated that the second wife was residing in the mud-terraced house and was receiving her food and other necessary articles from him, and that after satisfying her own needs she sent the surplus to her parents. Before the court heard the application for leave to sue as a pauper, the parties reached an amicable settlement through the mediation of certain well-wishers. On 28 September 1942 both parties executed two documents, marked as Exhibits P-5 and P-6. Exhibit P-5 was presented as a deed of maintenance whereby the husband agreed to pay the amount of Rs 100 per annum for food and clothing to his second wife for the duration of her natural life, with payment to be made by the 30th day of Magha Bahula each year. Certain properties listed in the schedule to this deed were retained as security for the due payment of these amounts. The only recitals in the deed were that the executant had married a third wife because no son was born to him by the second wife, that the second wife had instituted a suit for maintenance against him, and that, on the advice of respectable friends, the document was executed with the provisions contained therein. Exhibit P-6 was the other document, by which a residential house, described as the mud-terraced house, was conveyed to defendant No 2 for her residence during her lifetime. The material portion of this document stated…

In this case, the Court recorded that the deed executed by the husband contained the following provision: “You are my wife. Because of the affection I feel for you, I have transferred to you the property described in the accompanying schedule, and on this very day I have handed over possession of that property to you for your residence for the duration of your life. Consequently, you shall reside in the house, and, without any right to gift or sell, the scheduled property shall, after your death, revert to me and my heirs.” Within a few days after executing this document, on 5 October 1942, the husband paid the sum of one hundred rupees to his second wife as a maintenance allowance for one year in accordance with the maintenance deed referred to as Exhibit P-5, and the second wife acknowledged receipt of the money by affixing her thumb impression on a receipt marked Exhibit D-3 in the suit. The Court further noted that, sometime before these events, the husband had constructed another dwelling described as a “tiled house” or “upstairs house,” apparently with the intention of moving into it; however, he ultimately did not relocate, citing the inability to perform certain religious ceremonies required for occupying a new house. The second wife asserted that after the documents were executed and registered at Addanki, she returned to the mud-terraced house and lived there for several months together with her husband. During that period she became pregnant, and when the time of confinement arrived she was taken to the Bayer Hospital at Cherala, where on 16 October 1943 she gave birth to the plaintiff. After delivery she stayed with her child at her father’s house, while the husband visited occasionally. When the infant was seven months old, she brought the child to her husband’s residence, but the husband requested that she remain a little longer with her father. While residing at her father’s house she received a summons for a suit filed by her husband—Suit No. 326 of 1944—in the District Munsif Court at Ongole, wherein the husband prayed for cancellation of both the maintenance deed and the settlement deed on the grounds that she was unchaste, had become pregnant by “immoral ways,” and that the child was not his. The present suit was instituted after that notice. Since the plaintiff was born on 16 October 1943, his conception must have occurred in the latter part of December 1942 or the early days of January 1943. The material issue for determination, therefore, was whether the husband had succeeded in demonstrating that there was no opportunity for sexual access between him and his wife during that period. The husband expressly stated in his deposition that his second wife had been a perfectly chaste woman up to the time when the documents were executed and even when she received the maintenance allowance of one hundred rupees in October 1942.

According to the husband, the woman remained chaste up to the time when the documents Exs. P-5 and P-6 were executed, and she also received a maintenance allowance of Rs 100 from him in October 1942. He asserted that after the compromise reached in the earlier maintenance case, Defendant No 2 never again lived in the mud-terraced house. He claimed that he did not know where she stayed, but he had heard that she went to Eddanapudi and lived an immoral life with a paramour named Cherakuri Venkanna. The lower courts did not accept this portion of the husband’s story and treated it as wholly unreliable. The High Court judges, while disbelieving the husband’s specific allegation of unchastity against Defendant No 2 and finding no evidence that she was at Eddanapudi during the material period, nevertheless relied on two sets of facts to conclude that Defendant No 2 did not reside in the mud-terraced house after October 1942, the month when she received Rs 100 as maintenance for a full year from her husband. On that basis the judges held that there was no opportunity for sexual intercourse between the husband and Defendant No 2 at the time when the child would have been conceived. First, the High Court treated Exhibits P-5 and P-6 as a separation arrangement whereby the parties agreed to live apart, which, in the judges’ view, supported the husband’s claim that Defendant No 2 never returned to the mud-terraced house. The receipt of Rs 100 on 5 October 1942, as an advance payment of maintenance for one year, was considered by the judges as confirming the separation and indicating a definite end to marital relations from that date onward. Second, the judges considered events occurring after 5 October 1940 that reinforced the separation theory. They found the claim that the husband accompanied Defendant No 2 to Bayer Hospital at Chirala for her confinement to be incredible, as was the suggestion that she remained for an extended period in her father’s house with the husband’s consent. The judges described it as extremely unnatural for the husband, who, according to the evidence, had refused to recognise his own son when the child was brought to him seven months after birth, to then file a suit seeking cancellation of the maintenance deed and the deed of settlement, by

The Court observed that the allegation of unchastity against the wife and the suggestion of bastardy concerning the son would arise only if the narrative given by defendant No 2 about her earlier relationship with the husband were true. In the Court’s view, the learned judges of the High Court examined the facts from an erroneous perspective and based their conclusions largely on conjecture and speculation rather than on evidence that had actually been proved. The Court held that there was no basis for treating documents Exhibits P-5 and P-6 as a separation agreement. Such a conclusion conflicted with the language and the expressed terms of the documents and was not supported by the testimony of the mediators who facilitated the creation of the documents, nor by the statements of those who were present as attesting witnesses when the documents were executed and signed. Exhibit P-5, as previously noted, merely records the fact that defendant No 1 entered into a third marriage and that a maintenance suit was instituted by his second wife. The document contains no clause, either explicit or implied, indicating that the wife, in consideration of a yearly allowance of one hundred rupees, consented to live apart from her husband. Regarding Exhibit P-6, the Court pointed out that the gift is expressly described as an affectionate gift from the husband to the wife and that it clearly demonstrates the parties’ intention that the wife should reside in the house; possession of the house was delivered to the wife on the very day the document was executed. The Court found no justification for construing the recitals in these documents as false or as lacking operative effect. The testimony of D.W. 8, an attesting witness, indicated that the documents were read to the executant and that he signed them after agreeing to the recitals. The mediator identified as P.W. 5 testified that defendant No 2 occupied the mud-terraced house after the compromise. In the absence of any compelling contrary evidence, which the Court noted was lacking, it was proper to presume that Exhibit P-6 was implemented and that possession of the mud-terraced house was indeed transferred to defendant No 2 in accordance with its terms.

The High Court, in its judgment, made a rather unusual observation on this point. It stated, “It may be… that even down to Exhibit D-3 one may presume that in the very house allotted to her by Exhibit P-6 she lived, so that up to the date of Exhibit D-3 there may be no impossibility of cohabitation between the parties.” The Court further remarked that the real difficulty arose with respect to the situation after Exhibit D-3. It then noted that “we find in Exhibit D-1” without providing further elaboration within the present portion of the judgment, indicating that the subsequent analysis would focus on the material presented in Exhibit D-1.

In this matter, the plaintiff had filed a suit designated as O.S. No. 326 of 1944, in which the present first defendant sought the cancellation of documents labelled Exs. P-5 and P-6. In that plaint, the first defendant alleged that, from the date on which the plaintiff married his third wife, there had been no physical relationship between the plaintiff and the second defendant. The learned judges, however, were considered to have erred in allowing statements made by the husband himself—statements that were recorded in the suit filed nearly two years after the relevant period—to influence their assessment of the effect of document Ex. P-6. The first defendant expressly admitted that his second wife had been perfectly chaste at the time a sum of one hundred rupees was handed to her on 5 October 1942 and that receipt Ex. D-3 was executed. No evidence was presented to show any animosity or bitterness between the parties at that time. It was undisputed that the husband’s feelings had changed and that he had become extremely bitter toward the plaintiff’s mother before he instituted the cancellation suit in July 1944; nevertheless, the declarations he made in the 1944 plaint were given long after the dispute had arisen, irrespective of the reasons that had triggered the disagreement. In the view of this Court, the later conduct of the first defendant, as well as the statements he made in the 1944 suit, could not be treated as part of the res gestae and therefore were not admissible as evidence against the plaintiff. Moreover, the first defendant could not be regarded as an agent of the plaintiff for the purpose of making admissions that were detrimental to the plaintiff’s interest. If the first defendant’s claim that his wife had gone to Eddanapudi and lived an immoral life was disbelieved—as the High Court had concluded—then it inevitably followed that she had indeed resided in the mud-terraced house as she herself asserted, a conclusion fully supported by the terms of document Ex. P-6. No evidence was adduced of any improper conduct by the first defendant toward the plaintiff’s mother at the time when the plaintiff was conceived. The Court did not find it unreasonable, nor unnatural, that the father of the second defendant alone escorted the mother to the hospital in Chirala at the time of delivery and bore all related expenses, nor was it surprising that the second defendant, after the birth, remained for several months with his infant child in his father’s house. Apparently, for reasons not clarified, the husband later adopted an unreasonable attitude; this change occurred after the earlier events, and whether his grievance stemmed from genuine marital discord or was prompted by the influence of his third wife was deemed immaterial to the present determination.

The Court first ordered that an investigation be undertaken. After reviewing the evidence presented, the Court expressed the clear view that defendant No 1 failed to establish that there was no possibility of sexual intercourse between him and defendant No 2 at the time when the plaintiff was conceived. Defendant No 1 had based his entire case on the allegation that the plaintiff’s mother was unchaste and that the plaintiff resulted from illicit intercourse. While the High Court had rejected that allegation, the Court held that the High Court erred in concluding that no opportunity for contact existed during the material period. The High Court’s error stemmed chiefly from reliance on statements and conduct of the husband that occurred long after the breakdown of affection between the parties, irrespective of the reasons for that breakdown. In the opinion of this Court, given the evidence contained in the record, the findings of the High Court cannot be sustained. Consequently, the appeal is allowed, the judgment and decree of the High Court are set aside, and the judgment of the trial judge is restored. The plaintiff is awarded costs of all courts. The court-fees payable to the Government shall be borne by defendant No 1. The Court recorded that the appeal was filed by two counsel and an agent. The appeal is allowed. The agent for the appellant is M.S.K. Sastri, and the agent for the respondent is Naunit Lal.