1. This appeal and the other appeal No. 9 of 1964 arise from cross-petitions made by the husband and the wife under the Hindu Marriage Act, 1955, both of which were decided in favour of the wife. The petition by the husband was for divorce under Section 13 of the Hindu Marriage Act, on the ground that the wife was living in adultery. The wife's petition was under Section 9 of the Act for restitution of conjugal rights. The real controversy between the parties is whether a child, whom the wife gave birth during the continuance of a valid marriage between the parties, was illegitimate. The husband refused to allow the wife to enter his house from the moment he discovered that she was pregnant Both the cases were consolidated in the Court below. Evidence was recorded only once, to be used in both the cases. It is, therefore, convenient to dispose of both the appeals by a common judgment.
2. The parties were married in 1957. The wife gave birth to a male child on 25th August 1960 during the subsistence of the marriage. The case for the appellant husband i' that at no time did he cohabit with his wife; that one month prior to Diwali of the year 1959, the wife went away to her parents' house and thereafter did not return until June 1960, when her father brought her to his house, but at that time she was visibly pregnant; that the petitioner's father refused to take her back as the conception was illegitimate; that in a panchayat held on or about 4th July 1960, the wife admitted that her pregnancy was of 7 months; and that according to the petitioner's calculations, she must have conceived sometime in November or December 1959 so that the child was conceived at a time when he had no access to his wife.
3. The respondent wife's case is that the child is legitimate. She used to sleep with her husband after the marriage and that the child is from no one else but her husband.
4. As the child was born and begotten at a time when the marriage between the appellant and the respondent was subsisting, Section 112, Evidence Act, is attracted. It is an irrebuttable presumption of law in a civilized nation that a person born during the continuance of a valid marriage between his mother and a man is the legitimate child of that man, Pater est quem nuptiac demonstrant the is the father whom the marriage indicates). It is a rule of prudence and is also in accordance with the rule of natural justice that a child born of a marriage must be deemed to be legitimate and it throws on any person, who is interested in making out the illegitimacy, the whole burden of proving it. The presumption contemplated, under Section 112, Evidence Act, is a conclusive presumption of law; the only thing which can displace it is proof of a particular fact mentioned in it, that is, non-access between the parties to the marriage at a time when the child could have been begotten. The person alleging illegitimacy must conclusively establish that the husband had no opportunity of intercourse with the wife, at a lime when according to the ordinary course of nature, the child must have been begotten. Non-access may be proved by means of such legal evidence as is admissible to prove a physical fact, but every presumption has to be made in favour of legitimacy of the child, who is found to have been born in lawful wedlock and the onus of proving non-access or that of illegitimacy is heavy on the party who alleges it. The law requires posilive proof of a negative fact, i.e.. non-access between the parties to the marriage. The mere fact that they were living apart in different houses is insufficient to establish non-access. The presumption of legitimacy is one of the strongest presumptions of which the law is cognizant See Venkateswarlu v. Venkatanarayana, AIR 1954 SC 176; Mt. Saroo v. Yeshwant Narayan, AIR 1934 Nag 124; and Maina v. Deorao ILR (1942) Nag 383 : (AIR 1942 Nag 96).
5. It is in this light that the facts and circumstances of this case have to be considered. The husband and the wife's father both reside in the same village. It is common ground that from the time of their marriage in December 1957, upto October 1959, the relations between the husband and the wife were good and they lived under the same roof. Sheo-ram, father of Dhedu appellant, admits this but says that, according to a custom in their community, a ceremony is performed when the husband starts shaving and it is then that he is allowed to sleep with his wife. He says that this ceremony was not performed in the case of Dhedu and Smt. Malhanbai. He further says that when he saw Malhanbai's enlarged abdomen, he discovered that she was carrying. He refused entry to her into his house. He admits that sometimes it so happened that Dhedu and Smt. Malhanbai remained alone in the house. Dhedu denied that the child in the womb was his. When a panchayat was held in the village and Malhanbai was asked about it she said that she used to sleep with her husband mid further that when her father-in-law and mother-in-law were out, her husband had sexual intercourse with her.
6. When the parties to the marriage were living under the same roof for days, weeks and months together, it cannot be accepted that there was non-access between them, whatever might have been the notions or the customs in the family. However there is a peculiar feature of this case. On perusal of the evidence of Malhanbai and other witnesses it is clearly established that after the wife went away from her matrimonial house to her parents' house, just before the Diwali of 1959, she had no cohabitation with her husband at any lime upto the birth of the child. In other words, admittedly, there was non-access between them during that period. Shri Padhye contended that Malhanbai had left the matrimonial home for her parents' house about one month before the Diwali of 1959 and for this contention he relied on the statement of Sheoram. But Dhedu does not support him on that point. Although be says that Malhanbai went away to her father's house 'before Diwali ' (1959), he does not specify how many days before Diwali. In cross-examination, be says that ho does not remember the month. On the other hand. Malhanbai clearly says that she went to her parents' house, four or five days before Diwali. Her deposition had been recorded earlier (on 1st October 1963) and this was elicited in cross-examination, which was not pursued further. There is nothing to suggest that this statement of hers is not truthful Sheoram's statement was recorded on 4th October and Dhedu's on 5th October. We believe the statement of Smt Malhanbai and hold that she left her matrimonial home for her parents' house on or about 26th October 1959 (Diwali in that year was on the 31st October). There is no evidence whatever of the dale of her menstruation in the month preceding the Diwali of 1959. For the purposes of the crucial point, therefore, we will have to proceed on the basis that upto 25th October. 1959 the husband and the wife lived under the same roof, and that there was possibility or conjugal intercourse-between them upto that date. Thus, the crux of the mailer to which the point boils down is whether the child could not be of the appellant even if be had sexual intercourse with her on 5th October 1959
7. The child was born on 25th August 1960. Computing from 25th October 1959, the child was born on the 305th day, i.e.. 10 lunar months and 5 days.
8. There can be no precise calculation of the period of gestation as it cannot he rigidly fixed. In Mahendra v Sushila. MR 1965 SC 364, it is observed that the usual period of gestation from the date of the first coitus is between 265 and 270 days and delivery is expected in about 280 days from the first day of the menstruation period prior to the woman conceiving a child. But in that ease, the question was not about fixation of the outside date; the earliest possible date of conception was to be determined. It was held that where the child was born after 171 days of the first coitus between the husband and the wife, and that the child and the delivery were normal, the court should normally hold that the child was not a child born after 171 days' gestation and was not the child of the husband, unless there is evidence which would justify the Court in holding otherwise. The present case is not one where the husband had no opportunity to have sexual intercourse with the wife by reason of his being in prison or having gone abroad, as was the case in Mahendra, AIR 1905 SC 364 (Supra).
9. Merrimen's Table on pro traded gestation of 114 pregnancies calculated by him from the last day on which the woman menstruated and in which the children appeared to be mature shows the following periods :
In the 37th week
' 38th week
' 39th week
' 40th week
' 41st week
' 42nd week
' 43rd week
' 44th week
10. We may usefully recall the observations of Lord President Dunedin in Williamson v M'Clelland. 1913 SC 678 at p. 680 :--
'' It is absolutely clear that neither in the law nor in medical science is it possible to fix an actual number of days as the extreme period of gestation. In certain systems of law the matter has been dealt with by statute, and a limit has been arbitrarily fixed, but in our system there is no such limit That does not lead to the conclusion that a period might not be submitted to the consideration of the Court of such length that the Court would refuse to hold that the parentage had been proved The Court is left free to deal with each case as it occurs
In Gaskill v Gaskill 1921 p. 425, Birkenhead. L C . said :
'I can only find her guilty if 'I come to the conclusion that it is impossible, having regard to the present stale of medical knowledge and belief, that the petitioner can be the father of the child. The expert evidence renders it manifest that there is no such impossibility. In these circumstances 1 accept the evidence of the respondent, and find that she das not committed adultery and accordingly I dismiss the petition
And, it was held that period of 331 days could not be regarded as impossible. In Wood v. Wood 1947-2 All ER 95, the same conclusion was reached in regard to a period of 346 days. In Hadlum v. Hadlum 1948-2 All ER 412, a period of 349 days was found not to be too long. In Preston Jones v. Preston Jones 1951-1 All ER 124 decided ultimately by the House of Lords, a period of 360 days was rejected. In that case, the following remarks were made by Lord MacDermott :
'I do not think it open to doubt that a time must come when, with the period far in excess of the normal, the court may properly regard its length as proving the wife's adultery beyond reasonable doubt, and decree accordingly. But, as has so often been pointed out, the difficulty is to know where to draw the line. The reported cases naturally tend to creep un on each other and there is little sound guidance to be gleaned from authority. If a line has to be drawn I think it should be drawn so as to allow an ample and generous margin, for, it may be as difficult for the wife to prove a freak of nature as for anyone else: and it need hardly he added that, before acting on the length of the period, due regard must be paid to any other relevant evidence. But I do not find it possible to go further and lay down any hard and fast rule capable of general application. '
11. Since, in the present case, the period of gestation ean be calculated as 305 days, it is conclusive proof that the child is the legitimate son of the appellant Dhedu. Even on the version of the appellant's father that Smt. Malhanbai did not come back to the matrimonial home after she left it one month prior to the Diwali of 1959, the total number of days, on that calculation, would be 330. Then also that period is within the rule in Gaskil, 1921 p. 425; Wood. 1947-2 All ER 95: and Hadlum 1948-2 All ER 412. But in view of the finding readied by us this is academic.
12. Shri Padhye laid a greal deal of stress on two circumstances : (1) when a son is born to a person, it is not the ordinary course of human conduct to deny paternity; (2) a Panchayat was held where Malhanbai was excommunicated because the Panchayat held that her pregnancy was due to illicil inlercourse with a man other than the husband. In our opinion, although these circumstances give rise to a considerable suspicion, they do not displace the strong presumption of law declared under Section 112. Evidence Act, nor do they discharge the burden cast in it. It i.s against public policy to bastardise a child except when the evidence in rebuttal is so strong as not to leave any scope for the conclusion to the contrary There is nothing to disbelieve the statement of Mst. Malhanbai. Right from the beginning, that is, when she was produced before the Panchayat, she has consistently been saying that her husband had intercourse with 'her when his parents were away from the matrimonial home. It is not unlikely that because of the peculiar cast custom in their community (a husband is not allowed to sleep with his wife unless a certain ceremony is performed). Dhedu had not the courage to admit before his parents or before the Panchayat that he did have inlercourse with her, even without the customary ceremony having been performed. It is also a peculiarity of this case that there is no iota of evidence to suggest anybody else's name as her paramour or about whom there was any suspicion in the mind of the husband or his father anybody else in the village
13. For all these reasons, the only conclusion is that the appellant could not prove that he had non-access to his wife at the time when the child was begotten. The finding of the trial Court must be upheld. It is unnecessary to enter into the further question that illicit conception, without more, is not by itself evidence of the woman 'living in adultery' (as is required to be established for a decree of divorce under Section 13 of the Hindu Marriage Act), because conception is possible in a single lapse on the part of the woman,
14. Both the appeals are dismissed. There shall be no order for costs.