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Vanessa Fernandes Vs. Francisco Fernandes and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 31 of 1984
Judge
Reported inAIR1986Bom89; 1985MhLJ788
ActsCode of Civil Procedure (CPC), 1908 - Order 32, Rules 3 and 4(3); Portuguese Civil Code - Schedule - Article 101; Evidence Act, 1872 - Sections 112
AppellantVanessa Fernandes
RespondentFrancisco Fernandes and anr.
Appellant AdvocateA. Agni, Adv.
Respondent AdvocateM.S. Usgaokar, Adv.
Excerpt:
a) the case examined a suit by a plaintiff father declaring that the defendant minor was not his daughter - the guardian appointed to minor also refused to act in that capacity - a decree was passed against the minor without taking steps to substitute the guardian - the court considered the facts of the case and held that such an order was illegal;b) it was adjudged under article 101 of the portuguese civil code, where a suit was filed by the father stating that the defendant minor was not his progeny, beyond 120 days from the date when the child was born, then the said suit would be barred by limitation - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether.....couto, j.1. whether a suit instituted for a declaration that the plaintiff is not the father of a minor child, born to his legally wedded wife whilst the marriage is subsisting, can validly be proceeded with and decreed against a minor if, on the refusal of the appointed guardian ad litem to accept the appointment and to act on behalf of such child, the court fails to make a fresh appointment, is the main question that this letters patent appeal gives rise to. appellant answered this question in the negative, whilst the first respondent held that opposite view. the learned single judge of this court (kamat, j.), while disposing the appeal filed by the present second respondent against the judgment dt.24th january, 1979, whereby the learned civil judge, senior division, mapusa, decreed the.....
Judgment:

Couto, J.

1. Whether a suit instituted for a declaration that the plaintiff is not the father of a minor child, born to his legally wedded wife whilst the marriage is subsisting, can validly be proceeded with and decreed against a minor if, on the refusal of the appointed guardian ad litem to accept the appointment and to act on behalf of such child, the Court fails to make a fresh appointment, is the main question that this Letters Patent Appeal gives rise to. Appellant answered this question in the negative, whilst the first respondent held that opposite view. The learned single Judge of this Court (Kamat, J.), while disposing the appeal filed by the present second respondent against the judgment dt.24th January, 1979, whereby the learned Civil Judge, Senior Division, Mapusa, decreed the suit, upheld the view of the first respondent. Hence, this appeal.

2. A few facts may, as necessary for the proper understanding of the case, be stated. Respondents herein got married at Bombay, their marriage having been solemnized under the Catholic religious rites on 4th October, 1952 and thereafter, registered in the office of the Civil Sub-Registrar, Mapusa in the year 1959. Admittedly, prior to 1973, five legitimate issues were born out of wedlock and on 13-4-1973, the second respondent gave birth, at Thane, to the appellant Vanessa. On 24th January, 1977, almost four years after the birth of the appellant, the first respondent filed a suit in the Court of the Civil Judge, Senior Division, Mapusa, against the second respondent and the minor Vanessa for a declaration that the appellant herein is not his legitimate daughter and for the consequential relief of cancellation of the relevant entry in the registration records, on the ground that she could not have been conceived from him since he was absent on board of ships outside India from February 1971 to April 1973 and had, as such, no contact at all, physical or otherwise with the second respondent. He also prayed, in the plaint itself, that a guardian ad litem be appointed to the minor Vanessa as required by Art. 16 of Decree No.2 of 1910 and Art. 113 of the Portuguese Civil Code and suggested therefor the name of one Benjamin Fernandes, Step-brother of the second respondent. Then, by a separate application dt. 29th January, 1977, the plaintiff/first respondent herein, once again, prayed that the said Benjamin be appointed guardian ad litem to the said minor in terms of the aforesaid Art.16 of the Decree No.2 and O.32, R.3, C.P.C. By his order dt. 29th January, 1977, the learned trial Judge appointed Benjamin Fernandes as guardian to Vanessa, but as he informed the Court that he was not willing to act as guardian, the trial Judge made, on the same day, an order appointing Mrs. Claudina Noronha as guardian ad litem to the minor Vanessa/appellant herein in substitution of Benjamin. The newly appointed guardian, in her turn, also informed the Court in writing that she was not prepared to act as guardian. The learned trial Judge, however, held the view that since the said Mrs. Claudina was the Grandmother of the minor and no satisfactory reasons were given for not accepting the guardianship, she could not refuse it. He further recorded a statement of Mrs. Claudina Noronha to the effect that she did not wish to file a written statement on behalf of the minor Vanessa, nor she desired to make any other statement. The second respondent, however, filed her written statement, and thus, the suit was proceeded with unopposed by the minor/appellant herein, who was only three years old at the relevant time, and finally decreed against her and the second respondent by judgment dt. 24th January, 1979.

3. An appeal against this judgment and decree was filed by the present second respondent and then, at the time of thehearing, the Special Officer of this Court was appointed as guardian ad litem to the minor Vanessa/appellant herein. The learned single Judge, who heard the said appeal, was pleased, by his judgment delivered on 4-8-84, to affirm the judgment and decree passed by the trial Court. He negatived the preliminary objections raised on behalf of the appellant present second respondent in respect of the maintainability of the suit on account of, (1) want of territorial jurisdiction of the trial Court; (2) bar of limitation;and (3) non-appointment of a guardian ad litem to the minor in the suit, as well as the contention of the learned counsel appearing on behalf of the minor that the decree passed by the trial Court was a nullity as there was no proper representation for the minor since guardianship cannot be foisted on a person who is not willing to accept it, and as, in the circumstances, there was no effective guardian. Now it is on account of the findings of the learned single Judge as regards the last point that this Letters Patent Appeal was filed on behalf of the minor Vanessa.

4. It is thus clear that the question we have to address ourselves to is whether the aforementioned finding of the learned single Judge is correct. In other words, as we already stated, the question that falls for our consideration is whether, in the context of the facts of this case, where the appointed guardian ad litem has refused to act on behalf of the minor and on being forced to continue as guardian, has unequivocally stated that she was not willing to file a written statement or to make any other statement on behalf of the minor, the suit could have been validly proceeded with and finally decreed against the said minor. We may, at the outset and before dealing with the said question in detail, observe that, obviously, the answer to it can only be in the negative because, apart from other specific reasons which will be referred to in due course, the opposite view would involve a clear violation of the principles of natural justice inasmuch as a fair chance of defending herself would, by implication, be denied to the minor.

5. The question offers no difficulty under the relevant provisions of the Code of Civil Procedure, 1908. In fact, as correctly submitted by Mrs. Agni, the learned counsel appearing for the appellant, it is well settled that no person can without his consent be appointed as guardian for the suit. The wording of R. 4(3) of O.32, C.P.C., as it stood before the 1976 Amendment, was unambiguous and clear. However the position was made even more clear after the said Amendment, for it is now laid down therein that 'no person shall without his consent in writing be appointed guardian for the suit'. It is thus undisputable that guardianship cannot be foisted on an unwilling person, and consequently, if guardianship is imposed on such an unwilling person, then , the representation of the minor in the suit would not be proper and as such, the suit cannot validly be proceeded with and be decreed against a minor so represented . It would, therefore, appear that the view taken by the learned single Judge that in the case at hand, despite the fact that the guardianship of the minor Vanessa was foisted against her will on Mrs. Claudina Noronha, there exists no improper representation in the suit of the said minor and as such, the decree passed by the trial Court against the latter was not a nullity on that count, is erroneous. It was, however, contended by Mr. M.S. Usgaokar, the learned counsel appearing for the first respondent, that it is not so, for the provisions of Order 32 do not apply to the case before us. He submitted that in suits of the kind instituted by the first respondent, namely for declaration that child born to the legitimately wedded wife whilst the marriage is subsisting is not an issue of her husband, the appointment of guardian ad litem to such minor child is governed by the said provisions of Decree No.2 of 1910 and other relevant provisions of the Portuguese Civil Code. Under those provisions, the argument continued, the appointment of guardians ad litem has to fall on a special class of persons from the maternal line as specified in the law, irrespective of their consent or acceptance. The guardianship is, the learned counsel further contended, a compulsory duty cast by law on such persons, who therefore can be exempted by the Court from such duty only in the cases specified in the law. Though it is no doubt true that, under the relevant provisions of the Decree No.2 of 1910 and of the (Portuguese) Civil Code, the appointment of a guardian ad litem to a minor has ordinarily, in such suits, to fall on a relative of the minor's mother, the submission of Mr. Usgaokar that such guardianship is a compulsory duty and can be foisted on a person irrespective of his consent or acceptance has no merit. We may also point out, at this stage, that on one hand, the provisions of the Decree No.2 and of the Civil Code as regards the appointment of a guardian ad litem are not substantially different from those embodied on Order 32, C.P.C., being on the contrary akin and meant to give protection in the suit to the interests of the minor, and on the other, that there is a clear implied admission on the part of the first respondent himself that, contrary to what Mr. Usgaokar submitted before us, the provisions of O.32, C.P.C. fully apply. In fact, by his application dt. 29th January, 1977, the first respondent, after stating that he had prayed in the plaint itself that a guardian ad litem be appointed in terms of Art. 16 of Decree No.2 of 1910, specifically averred that, by oversight, an affidavit as required by O. 32, R.3, C.P.C. had not been filed and as such, a fresh application supported by an affidavit was being made 'praying the appointment of Shri Benjamin Fernandes resident of Anjuna, maternal uncle of defendant No.2 as her guardian ad litem, as a proper person without adverse interest to the minor'. This application reflects a correct understanding and knowledge of the law on the subject, for the references to Art.16 of the Decree No.2 and to O.32, C.P.C. were entirely justified and necessary for the purposes of making clear that, though the procedural law applicable is the one laid down in O.32, none-the-less, choice of the guardian ad litem has ordinarily to fall on a person belonging to the class specified in Art.16 which to that extent constitutes substantive law.

6. We may now turn with advantage to the Decree No.2 dt. 25th December, 1910 and to the relevant provisions of the Portuguese Civil Code governing, in general, the guardianship of minors. The Decree No.2 was enacted on 25th December, 1910 for the purpose of giving protection to the progeny of a person, as its very title indicates. The said Decree is indeed given the title 'Law For Protection of Progeny' by the Legislature itself. It comprises seven Chapters and deals with the rights of the legitimate progeny as well as of those who can be legitimated, including the right to file a suit for declaration of paternity, maintenance,etc. Broadly, Chap. I deals with the legitimate progeny; Chap.II with the proof of progeny's legitimacy; Chap III with the illegitimate progeny that can be legitimatized; Chap. IV with the rights of the illegitimate progeny to file suits for declaration of paternity; Chap. V with the maintenance to the mothers of illegitimate progeny; Chap.VI with the rights of the incestuous progeny and finally, Chap. VII lays down general provisions and repeals. The Decree has specifically repealed the provisions of Arts. 101 to 136 of the Civil Code and substituted them by those inserted in the Decree. However, Art.1 of the Decree No.2 was later on substituted by Art.101 of the Portuguese Civil Code which replaced Art.1 of the Decree No.2 provides that the progeny born out of a lawfully solemnized marriage after 180 days from the date of marriage, or within 300 days subsequent to its dissolution or to the judicially decreed separation of the spouses, will be deemed and presumed to be legitimate. It further provides that, however, if the divorce or separation of spouses is decreed on the grounds of total desertion or abandonment of the conjugal home, or absence without any news, or de facto separation for the time prescribed in law, the period of 300 days will be counted from the date on which cohabitation had ceased, and in case of judicial custody of the wife, from the date the custody took place. Art.7 of Decree No.2, in turn, postulates that the presumption of legitimacy of the progeny born, whilst the marriage is subsisting, after 180 days from its solemnization, or within 300 days subsequent to its dissolution or judicial separation of the spouses, can be rebutted only in the event the contingency foreseen in Art.6(2) does not occur and in addition, it is proved physical impossibility of the husband to cohabit with or to have access to his wife during the first 121 days, or more, of the 300 which preceded the birth of the child. Art. 6(2) lays down that the legitimacy of the progeny born within 180 days immediately subsequent to the solemnization of the marriage cannot be challenged if the husband, being present, has consented that his name be entered in the Register of Births as father of the child, or if, by any other manner, he has acknowledged his fatherhood of the child so born. Art.10 of the Decree postulates that the father can challenge the legitimacy of the progeny only in the cases the law so permits by filing a suit therefor within 120 days from the date he has knowledge of the factum of birth. And Art. 16 prescribes that :-

'In all case where the presumption of legitimacy of the progeny is challenged in Court, and the issue is a minor, the Court shall appoint a guardian ad litem to the minor from amongsttt the relatives of the mother, if any and the latter shall always be given a hearing in the Court'.

7. A plain reading of the above mentioned provisions of the law makes it clear that, under the scheme of the Decree No.2, a strong protection has been given to the progeny born during the subsistence of a lawfully solemnized marriage. A presumption of legitimacy always operates in favour of a child who is born 180 days after the solemnization of the marriage, or within 300 days from the dissolution of the marriage or from the separation of the spouses decreed by a Court of law. Undoubtedly, this presumption is merely juris tantum and therefore, rebuttable. But it can be rebutted only in very limited cases,namely in the event the contingency foreseen in Art. 6(2) does not occur and in addition, physical impossibility of cohabitation of the husband and wife in the first 121 days, or more, out of the 300 which preceded the birth of the child is proved. This physical impossibility of cohabitation includes the impotency of the husband, for such impotency is, under Art.9 of Decree No.2, a ground admissible for challenging the legitimacy of the progeny, and as the expression 'physical impossibility' clearly denotes, has to be of such kind tht it totally and absolutely excludes the possibility of sexual intercourse between the husband and the wife during the said period of time, be it because the husband is entirely from having access to his wife, or for any other reason, such as serious illness. Therefore, if the legitimacy of a child is challenged, the interests of the minor have to be properly protected and safeguarded. Hence, Art.16 of Decree No.2 casts a duty on the Court and gives a specific mandate to appoint a guardian ad litem to the minor from amongstt the relatives of the mother, if any, and in addition, to hear always the mother. The purpose of this provision of law is apparent. It clearly aims to give a proper and adequate representation to the minor, preventing, or at least reducing, any chance of collusion in detriment of the minor's interests. Thus, it becomes rather difficult to accept the proposition that under the provisions of Art. 16, the guardianship ad litem can be foisted on any of the relatives of the mother even when such relative is unwilling to act on behalf of the minor and does not accept the appointment. Art.16 does not postulate that it is compulsory for a person who is appointed as guardian ad litem to act as such on behalf of the minor. It only lays down that in these kinds of suits, the guardianship of the minor has to fall, as far as possible, on a relative of the mother and to that extent Art.16 embodies a piece of substantive law which has nothing to do with the manner in which the appointment is done and the formalities required to make it effective. This aspect falls within the province of the procedural law and therefore, the relevant provisions of such law are to be applied. It is not disputed that the Civil Procedure Code, 1908 was already in force in the Union Territory of Goa, Daman and Diu when the suit was filed by the first respondent. Hence, the provisions of O.32, C.P.C. were entirely attracted, as otherwise correctly understood by the first respondent.

8. It was, however, contended that the provisions of Art.16 of the Decree No.2 have to be read along with the provisions of the Civil Code governing the guardianship of minors. This contention is devoid of merit and is based on a misconception of the law on the subject. In fact, the provisions of Art.16 and those of the Civil Code cover distinct fields and are guided by different considerations obviated by the particular purpose in view. Art.16 aims at the guardianship ad litem of a minor in a special kind of suit. Such guardianship is solely ment for the purpose of that suit. Unlike Art.16, the provisions of the Civil Code regulate, in general, the guardianship of minors, who are orphans or whose parents are either incompetent to exercise their natural guardianship by reason of mental insanity, or incapacitated by any other reason. They are intended to protect the minors who, being under the law incompetent to look after themselves and after their interests and who are either orphans or whose parents are incompetent or incapacitated from acting as natural guardians, are unable to safeguard their interests or physically look after themselves. Therefore, considering the special classs of minors to be protected and the over ally nature of the protection required an obligation is cast on some close relatives of the minors to act as guardians if so appointed by the family council. Therefore, the appointed guardian becomes a sort of trustee who is entrusted with the overall welfare of the minor. Such considerations do not arise in the appointment of a guardian ad litem and therefore, it is difficult to accept the view that guardianship ad litem can be foisted on a person unwilling to accept it. In any event, we may point out that even in cases of appointment of a guardian under the provisions of the Civil Code, the guardianship is not foisted on an unwilling person. No doubt, the appointment as guardian under the Civil Code is not subject to an express consent or acceptance, but such consent or acceptance is implied, for if no exemption from guardianship is sought by the appointed guardian, his appointment stands. This view clearly flows from the relevant provisions of the Civil Code to which we will now advert.

9. Article 98 of the Civil Code provides that the minors are incompetent to exercise their rights and as such, the acts and contracts executed by them will not, except in the cases expressly specified in the law, be binding on them. Then, Art. 137 provides for the natural guardianship of the father and lays down that it is the duty of the father to look after, educate and protect his minor children and further, to manage their assets, such duty being called paternal guardianship. Art.139 prescribes that such guardianship shall be discharged by the mother in the absence or impediment of the father. Then, Art.185 postulates that in case there are no parents or there is impediment of the parents, the paternal guardianship is substituted by guardianship as provided in the Code. Art.186 lays down that guardianship is a duty or obligation from which no one can be exempted save in the cases specified in the law. Art. 193 prescribes that the father may appoint in his will, or by an inter vivos instrument, a guardian to his minor child, if the mother is no more or is incapacitated from dischargingg the duties of paternal guardianship. Art. 199 provides for legal guardianship in cases of impediment, loss or abeyance of the paternal guardianship and where no guardian instituted by will exits. Art. 200lays down who has right to be a legal guardian and the order of preference. Art, 202 prescribes that if no guardian appointed in a will or legal guardian exits, then there will be dative guardianship. Art. 203 provides tha the dative guardians will be appointed by the family council. Art.207 lays down the manner in which the family council should be constitued. Art.224 postulates what are the functions and powers of the family council. Art.227 lays down in what cases a guardian can be exempted from guardianship and Art. 235 prescribes in what cases a guardian can be removed form the guardianship.

10. Thus, it can be seen that, as laid down by Art.137 of the Civil Code, it is the duty of the father to look after, educate and protect his minor children and further, to manage their assests. This duty is, in the scheme of the Code, to be discharged primarily by the parents and only when they are no more or when they are prevented form discharginggg such duty, the guardianship of the minor children passes, first to the guardian appointed by the father in his will or by the instrument inter vivos, then, in the absence of appointment or a guardian by the father, to the legal guardians and only in the even no legal guardians exits, the family council can appoint a guardian to the minors. It is therefore clear that the guardianship as laid down in the Civil Code is a substitute to the paternal guardianship and as such, it is meant to discharge the duty of looking after, educating and protecting the minor, and further, to manage his assets. It is in this context that, in the scheme of the Code, the guardianship was made an obligation and the guardian a sort of trustee to look after the overall welfare of the minor. As such, it was provided that the guardian cannot ordinarily refuse the appointment. Art.186 indeed provides that guardianship is a duty from which no one can be exempted save in the cases expressly provided in law. Such cases are specified in Art. 227 and hence, it would appear that the guardianship can be foisted on an unwilling person. However, a deeper and more careful consideration of the relevant provisions of the Civil Code shows that such an extreme inference is not justified. In fact, though in view of the provisions of Art. 186, a guardian can be exempted only for any of the grounds enumerated in Art.227 which are exhaustive, the fact remains that, as we already obvserved, there is on one hand, an implied consent or acceptance by the guardian if no exemption of guardianship is sought, because such appointment is either a consequence of what is provided in Art.200 or is made with the knowledge of the appointee, and on the other, the provision of Art.235, which provides for the removal of guardianship, if , interalia, the appointed guardian does not act properly and adequately in discharginggg his duties both in relation to the person of the minor and his assets, is to be considered. In fact, the conduct of the guardian appointed under the said provisions of the Civil Code in discharge of his duties is supervised by a supervisory guardian appointed under Art.205 and also by the Curator of Orphans who is a Magistrate with, inter alis, the specific duty of looking after the interests and rights of the minors. Thus, if an appointed guardian fails to act properly, or neglects to act adequately on behalf of the minor, he will be necessarily removed from the guardianship. Consequently, if a person is unwillingly appointed guardian, he will definitely cause his removal under Art.235 and hence, it follows that no guardianship can be foisted on an unwilling person. It may be emphasized that the appointment of a guardian in the scheme of the Code is not an idle formality, but on the contrary, partakes of the nature of an essential and material act to effectively safeguard the rights and the interests of the minors. To hold a view different from the one taken by us would lead to the absurdity that the appointment of a guardian is a hollow formality to be followed only to satisfy the requirements of the law. Such view is, manifestly, incorrect and cannot, as such, be accepted.

11. We already observed that the appointment of a guardian ad litem has nothing to do with the general guardianship regulated in the aforesaid provisions of the Civil Code. The appointment of such a guardian ad litem is necessitated by the need of protecting the minor's interests in the lis and is restricted to it, being thus fully governed by the procedural law in force at the time of the appointment. Hence, in any event, the very foundation of Mr. Usgaokar's contention that the provisions of the Civil Code as regards guardianship apply is erroneous and renders it without any merit. We may also record that even if the said provisions of the Civil Code were applicable, the trial Judge has committed a material error by failing to act under Art.235 of the Civil Code. In fact, when Mrs. Claudina Noronha refused to at on behalf of the minor, it was his paramount duty to forthwith remove her from the guardianship and to appoint another guardian in her substitution. And since the said Mrs. Claudina also stated that she was not willing to file a written statement or to make any other statement on behalf of the minor, it is evident that there was, right from the beginning, practically no representation of the minor. This failure of the trial Judge to act as required by law to safeguard the interests of the minor constitutes a substantial error that materially vitiates the trial Court's judgment dt. 24th January, 1979 and therefore, renders it liable to be set aside on this count alone.

12. But, in addition we find another material error committed by the Courts below which also calls for our interference. We already mentioned that a preliminary objection as regards the maintainability of the suit on the ground of limitation has been raised on behalf of the second respondent herein. Both the Courts below rejected this preliminary objection and held that the suit is not barred by limitation. Though this is a concurrent finding, we are of the view that our interference with such finding in this Letters Patent Appeal is, in the circumstances, entirely justified and absolutely necessary to further the ends of justice. We indeed find it necessary because on one hand, the said finding was arrived at by practically inverting the burden of proof, shifting it from the plaintiff to the defendants and on the other, by ignoring material evidence or by wrongly assuming facts not in the evidence.

13. We already said that Art.10 of Decree No.2 provides that the father can challenge the legitimacy of the progeny only in the cases the law so permits by filing a suit therefor within 120 days from the date he has knowledge of the factum of birth. This 120 days period of limitation is, as Art.10 specifically postulates, counted from the date the father gets knowledge of the child's birth and hence, manifestly, the onus to prove that the suit is within time lies entirely on the father/plaintiff. Thus, if the suit is filed beyond 120 days from the date of the child's birth, it is for the plaintiff to prove that he, for the first time, had knowledge of the child's birth, within the 120 days preceding the filing of the suit. Surprisingly, however, the learned trial Judge approached the question entirely from a wrong angle and clearly shifted the burden of proving the date on which the plaintiff came to know about the birth of the minor Vanessa from him to the defendants. In addition, he did not discuss the evidence in detail and summarily held that the first defendant in the suit/second respondent herein has not proved nor established that the plaintiff was aware of the bith of the minor defendant/present appellant much prior to January, 1977 and therefore, held that the suit was filed within the time specified in law. The learned Judge, while dealing with the case, completely failed to appreciate that it was totally for the plaintiff/father to prove with strong and reliable evidence that the date on which he came to know for the first time about the birth of the minor child, whose legitimacy he was challenging in the suit, was within 120 days immediately preceding the filing of the same suit. This fact was to be proved exclusively by the plaintiff in order to establish that the suit was within time, and thus, the fact that the defendants might have failed to prove that the father/plaintiff was aware of the birth of the minor much before January, 1977, was immaterial and of no consequence for the determination of the question as to whether or not the suit was time-barred. Apart from this, we may also observe that, in any event, the findings of the trial Judge are entirely against the evidence on record. The erroneous approach of the trial Judge was accepted by the learned single Judge and as such, he too inverted the burden of proof and wrongly saddled with it the defendants in the suit. He further wrongly assumed facts not in the evidence, such as that the Christmas card purported to have been sent by the first respondent to the minor Vanessa was not even shown to the plaintiff in cross-examination, when actually the plaintiff was confronted with the said card. In the circumstances therefore, in our view, the ends of justice require us to interfere with the said concurrent finding.

14. We may therefore advert to the pleadings and the evidence. In the plaint, the first respondent averred that on or about January 1977, the second respondent ran away from his house at Parra, deserting him because she had a love affair with one Apolinario Custodio Fernandes; that thereafter, she instituted a suit for divorce on the ground of ill-treatment and cruelty; that after the institution of the suit, the desertion from the conjugal home by the second respondent continued and she had no cohabitation or connection, physical or otherwise, with the first respondent; having come to Goa on 6-1-1977, the first respondent came to know that the second respondent was seen taking a child, about 3years old, to St. Mary's School, Mapuca; that sometimes the said child was also seen in the company of the aforesaid Apolinario; that, being suspicious, the first respondent made inquiries and came to know that the second respondent had given birth to the minor Vanessa on 13-4-73 at Thane; that the said child was not conceived from him since he was on board of ships outside India from February, 1971 to April, 1973.

15. The second respondent, in her written statement, denied that the child Vanessa was not daughter of the plaintiff and specifically stated that the latter had stayed with her on two occasions, one somewhere in June, or July, 1972 and the other in August, 1972. She further averred that the plaintiff knew about the birth of Vanessa much before January, 1977, because while she had left the child Vanessa at Bombay in her aunt's house and the plaintiff/first respondent herein used to take the minor child to his flat at Bombay on many occasions.

16. In order to prove that he came to know about the birth of the minor Vanessa only in January,1977, the first respondent deposed in Court and examined the witness Mario Cardozo. In the evidence, the plaintiff stated that the appellant Vanessa was born on 13th April, 1973 at Thane and that, prior to her birth and also after it, he was on board of ships outside India, since he had gone on a journey on 24th June, 1972 and returned on 24-9-72. Thereafter, he proceeded on a journey, once again, on 25th June, 1972 and returned on 30th December, 1972. He further stated that he come to Goa on 7th May, 1973 and, on such occasion, the second respondent had not been in Goa with him. He stayed for about one month and then went back to his work. He returned only in 1975 and stayed in Goa for about 22 days. In cross-examination, it was put to him that he used to visit one Maria Magdalena Noronha, aunt of the second respondent, at Bombay. He admitted such fact, but added that he was visiting her only once in a while. Thereafter, it was specifically put to him that he used to visit the said Maria Magdalena during the year 1974, and to this suggestion, he answered by saying that he did not remember. He denied tht he used to take the child Vanessa to his house at Bombay. He also stated in examination-in-chief that he returned to Goa in January 1977 and on such occasion, he contacted his friend and lawyer Mr. Mario Cardozo who informed him that he had seen the second respondent and one Apolinario walking with a child towards the St.Mary's School, Mapuca; that he had come to know, on inquiries, that the said child had been born at Thane in the year 1973. To corroborate this story, the plaintiff/first respondent herein examined advocate Batista Cardozo as his witness. Mr. Cardozo deposed that he knows both the respondents who were his friends and that he used to visit them when they happened to be in Goa. The plaintiff, according to the witness, works on board of ships and stays normally at Bombay. He comes, once in a while, for holidays to Goa and somewhere in the month of January 1977, the plaintiff had come to Goa and dropped at the office of the witness, as he used to do. On such occasion, the witness informed him that he had seen Apolinario Fernandes carrying on his motor bike a child, and further, that he had seen sometimes the second respondent taking the same child to St. Mary's School at Mapuca. In cross-examination, the witness further stated that the plaintiff might have come to see him in May 1975 or 1976 and that he did not know whether the plaintiff was or not aware of the birth of the child Vanessa when he dropped at the witness's office in January 1977.

17. This evidence is far from satisfactory to establish that the first respondent came to know about the birth of Vanessa only in the month of January 1977. In fact, the statements made in the plaint are quite vague, as vague is the relevant evidence given by the first respondent. It is no doubt true that the story given by the plaintiff/first respondent was corroborated by the witness Cardozo, for the latter stated that when, in January 1977, the plaintiff dropped at his office, he told him that he had seen one child being taken on a motor cycle by Apolinario as well as by the second respondent to the St.Mary's School at Mapuca. However, witness Cardozo has stated also, in his cross-examination, that the plaintiff might have come to him in the month of May 1975 or 1976. Thus, whether the information was given by advocate Cardozo to the plaintiff in January 1977 is not conclusively established. It might have been also somewhere in the month of May 1975 or 1976. Apart from this, it is also to be noted that the witness Cardozo only corroborated the fact that he told the plaintiff that he had seen a child moving with the second respondent and with Apolinario. This statement of the witness Cardozo does not establish that the first respondent was not aware of the birth of Vanessa prior to the said occasion. We already observed that under the scheme of Decree No.2, the legitimacy of a child is to be presumed in all the cases except those specified in the same decree and that a suit filed by a presumed father challenging the legitimacy of the child has to be filed within 120 days from the knowledge of such birth. The onus to prove that this knowledge was well within the said period of limitations is very heavy and has to be discharged with strong and entirely reliable evidence. Such evidence was not adduced by the plaintiff. To say the least, the evidence led by the first respondent leaves margin for doubts and is, therefore, insufficient in such a suit. Hence, in our view, the first respondent has failed to prove conclusively that he had knowledge of Vanessa's birth only in January, 1977 and thus, within the 120 days prior to the filing of the suit.

18. But there is more. In fact, though she was not required by law to lead any evidence to prove that the first respondent knew about Vanessa's birth much before January 1977, the fact remains that the second respondent examined the witnesses Henry De Souza and Kamlakant Sirsat for the purpose. This evidence, as we will presently show, conclusively proves that the first respondent was aware of the birth of Vanessa at least in the year 1974 or 1975. In fact, in his statement, Henry De Souza has corroborated the statement made by the second respondent to the effect that while she was at Dubai in the year 1974, the plaintiff/first respondent herein used to come to the house of Maria Magdalena and to take with him the minor Vanessa. He, in fact, stated that Magdalena is his wife and is staying at Dadar; that the second respondent had been out of India in the year 1974 since she had gone to the Middle East and at that time, she had kept with Magdalena the minor Vanessa, who was at the relevant time about 6 months old; that while the minor Vanessa was with the witness at Dadar, the first respondent had come to his place many times; that the first respondent used to take sometimes the minor Vanessa with him, on such occasions, to his house at Byculla. In spite of this clear statement, the first respondent did not put to the witness in cross-examination that this was false and he confined himself to ask on what date this had taken place and how many times the minor Vanessa was taken by him to his residence at Byculla. Thus, the evidence of the witness Henry stands inasmuch as he deposed that in the year 1974 while the second respondent was in the Middle East, the first respondent used to come to the witness's house and sometimes take with him the minor Vanessa to his residence at Byculla. Similarly, Kamlakant Sirsat stated that after the birth of the minor Vanessa, the first respondent has come every six months and on such occasions,had stayed with the second respondent at Parra; that when the minor Vanessa was 6 months old, there was a quarrel between the plaintiff and the second respondent and therefore, she went to stay at Anjuna. In cross-examination, he stated that he did not remember how many times the plaintiff has come to Goa in the years 1975 and 1976, but he specifically stated that, in the year 1974, he had accompanied the plaintiff to Anjuna where the second respondent was staying. The plaintiff did not at any stage of cross-examination put to the witness that he did not visit the second respondent on such occasions and he did not see the minor Vanessa. Therefore, it can be safely inferred that the plaintiff has admitted that actually he had not only visited the second respondent at Anjuna in the years 1974,1975 and 1976, but also that, on such occasions, has seen the minor Vanessa. The evidence of these witnesses taken together with the evasive answers given by the plaintiff in the course of his cross-examination when confronted by the second respondent with the fact that he had taken Vanessa to his residence at Byculla in the year 1974, conclusively establishes that, in fact, the plaintiff had full knowledge of Vanessa's birth, at least, in the year 1974. This also explains why the plaintiff had made vague statements in the plaint about the date on which he came to know for the first time about the birth of Vanessa.

19. The suit was instituted only on 24 th January, 1977 and therefore, much beyond the period of 120 days counted from the date of the birth. The child has, admittedly, been born on 13th April, 1973 and we already held that the plaintiff had knowledge of the said birth at least in the year 1974. Art.10 of Decree No.2 provides for a period of limitation of 120 days from the date of knowledge to file such kind of suit. Thus, it is clear that the suit was filed much after the said period of limitation has lapsed. Hence, the suit was time-barred and liable to be dismissed on that count also.

20. We already mentioned that the suit was liable to be dismissed because on one hand, it could not have been validly proceeded with and decreed aginst the minor Vanessa for want of proper representation and on the other, it was time-barred. But apart from these technical grounds, on merits also, it could not have been decreed, for the plaintiff/first respondent herein has completely failed to rebut the presumption of legitimacy existing under the relevant law in favour of the minor defendant Vanessa.

21. Article 101 of the Civil Code provides for the presumption of legitimacy of the progeny born out of a lawfully solemnized marriage after 180 days from the date of the marriage, or within 300 days from its dissolution or the judicially decreed separation of spouses. Presumption of legitimacy was established because the Legislature, in its wisdom, thought it necessary for protecting and safeguarding the family, which is the basic unit of any civilized society. It was therefore made very strong and firm under the scheme of the Decree No.2, for it was provided that only in very limited cases, the said presumption can be rebutted. We have already seen that Art.7 of the said Decree postulates that the presumption of legitimacy of progeny, born whilst the marriage is subsisting, after 180 days from its solemnization or within 300 days from its dissolution or judicial separation of the spouses, can be rebutted only in the event the contingency foreseen in Art. 6(2) does not occur and in addition, it is proved physical impossibility of the husband to cohabit with or to have access to his wife during the first 121 days, or more, of the 300 which preceded the birth of the child. We also saw that Art. 6(2) prescribes that the legitimacy of progeny born within 180 days immediately subsequent to the solemnization of the marriage cannot be challenged if the husband, being present, has consented that his name be entered in the Register of Births as father of the child, or if, by any other manner, he has acknowledged the fatherhood of the child so born. We further saw that the physical impossibility of cohabitation includes the impotency of the husband and has to be of such kind that it absolutely excludes the possibility of sexual intercourse between husband and wife during the said period of time, be it because the husband is completely prevented from having access to his wife, or for any other reasons, such as serious illness. It necessarily follows, in the circumstances where strong protection is provided for the lawfully constituted family and to the progeny born out of a lawfully solemnized marriage, that the rebuttal of the presumption of legitimacy of such progeny can be done only by equally strong, reliable and unimpeachable evidence. In fact, in the scheme of Decree No.2, a child born out of a lawfully solemnized marriage is normally legitimate and only in the cases specified in the law, the presumption can be rebutted. And since the challenge to the legitimacy of the child involves necessarily the adultery of the mother/wife, the evidence for the rebuttal of the presumption of legitimacy has to be such that it establishes beyond reasonable doubt that the child could not be daughter of the husband. This is why Art.7 requires that there should exist complete and total physical impossibility of cohabitation between husband and wife.

22. Admittedly, the minor Vanessa was born after 180 days from the solemnization of the marriage of the respondents and whilst the marriagewas subsisting. Hence, she benefits from the presumption that she is their legitimate daughter. The burden of proving that this presumption is false was lying exclusively on the plaintiff/first respondent herein, but in our view, he completely failed to discharge it. In fact, the only evidence adduced by the plaintiff/respondent No.1 in order to rebut the presumption of legitimacy consisted in his giving evidence in the trial Court. In the plaint, he has averred that after the institution of a suit for divorce by the second respondent, the desertion of the conjugal home by his wife (second respondent herein) continued and she had no cohabitation or connection, physical or otherwise, with him. He also averred that he was absent from India on board of ships from February 1971 to April, 1973 at Thane and that prior to her birth as well as after it, he was on board of ships outside India. He added that he went on his journey on 24th June, 1972 and returned on 24th September, 1972. Thereafter, he said, he went again on a journey on 25th September, 1972 and returned on 30-12-1972. The first point that strikes is that contrary to what was averred in the plaint, the respondent No.1 admitted that he was within India on or before the 24th June, 1972 as well as on 24th September, 1972 and on 30th December, 1972. Therefore, his averment made in the plaint that he was outside India on board of ships from February 1971 to April, 1973, is not corroborated by himself while deposing in Court. Now, Vanessa was admittedly born on 13th April, 1973 and if it is so, it cannot be ruled out that she could be the daughter of the first respondent. In fact, the respondent No.1 himself admitted that he was within India on 24th June, 1972 and the birth of the minor Vanessa is quite within the normal period of time for conception and pregnancy. In any event, the averments made in the plaint are quite vague and in the course of his evidence, the first respondent never stated in a peremptory and clear manner that he had no access at all to his wife, the second respondent herein, before he went on a journey on 24th June, 1972. In view of the provisions of Art.7 of Decree No.2, he was bound to establish, as we already observed, beyond any reasonable doubt that he had no access at all to his wife and that there was a physical impossibility for his having intercourse with the second respondent. The evidence led by the first respondent and above summarized is far from establishing the said fact, particularly tht there was physical impossibility of cohabitation of the first respondent with his wife. In addition, we may also refer to the fact that, in her written statement, the second repondent has specifically stated that the plaintiff had stayed together with her on two occasions, first, being somewhere in June or July 1972 and the second, in August, 1972. This statement made in the written statement is to some extent corroborated by the admission of the plaintiff himself in the course of his evidence to the effect that he had proceeded on his journey on 24th June, 1972 and that he had returned on 24th September, 1972. Undoubtedly, the plaintiff was within India on or before 24th June, 1972 and hence, this fact may corroborate the assertion of the second respondent that he stayed with her somewhere in June or July 1972. Secondly, the evidence of the witnesses Henry De Souza and Kamlakant Sirsat to some extent also corroborates this fact, for they stated that the plaintiff had taken the child Vanessa when she was about 6 months old in his company. This shows that the plaintiff was not only aware of the existence of Vanessa at a very tender age, but also that he had not raised any objection, impliedly admitting that she was his daughter. Thus, the evidence on record far from being sufficient to establish that the first respondent had no access at all to his wife, the second respondent, on the contrary, indicates that actually the plaintiff had access to his wife somewhere in June or July 1972 and even on other occasions, later on. Therefore, the plaintiff/respondent No.1 has completely failed to rebut the presumption of legitimacy that exists in favour of the minor Vanessa. Consequently, on merits also, the suit was bound to be dismissed.

23. The result is that this appeal is allowed and consequently, the judgments and decrees dt. 24th January, 1979 and 4th August, 1984, passed by the learned Civil Judge, Senior Division, Mapuca and the learned single Judge of this Court, respectively, are set aside and the suit is dismissed. We therefore direct that the original entries in the Register of Births in respect of the minor Vanessa be restored in the event they were altered or cancelled pursuant to the aforesaid judgments dt. 24th January, 1979 and 4th August, 1984. Costs by the first respondent. Appeal allowed.


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