P. Subramonian Poti, J.
1. I have given anxious consideration to the facts of the case in spite of the concurrent findings of fact by the courts below. The question is one of paternity of a child. It is claimed by the plaintiff in the suit that he is not the father of the child though the courts below have found so. The attack against the decision of the courts below requires examination because, according to him, the courts below were acting merely on the uncorroborated testimony of the mother and what has been considered as corroboration does not really amount to it. Now I will state a few facts necessary for the decision of the Second Appeal.
2. First defendant was married to one Kumaran Nair in the year 1946. According to the first defendant, about seven months after the marriage Kumaran Nair left for Colombo and was staying there. He is said to have come back after one year and stayed with the first defendant for 18 days. He again left for Colombo and did not return until the first defendant was known to be bearing a child. It is the case of the first defendant that at that time D. W. 5, the brother-in-law of Kumaran Nair, wrote to him to come over here as there was a rumour that his wife was pregnant in his absence. Kumaran Nair did return sometime in October 1954 and later, in 1956, he filed a petition O. P. 5 of 1956 for dissolution of marriage. In the mean-while the first defendant had given birth to the second defendant on 12-3-1955 at Dr. Iype's Nursing Home at Irinjala-kuda. It is the first defendant's case that during the absence of Kumaran Nair. plaintiff, who had married a cousin of the first defendant, was on intimate terms with her. having induced her to have sexual relations with him. In the partition in the family of the plaintiff's wife she did not get anybuilding, suitable for residence, allotted to her share. First defendant's tavazhi got such a house and it is her case that plaintiff and his wife lived along with the first defendant in that house. She would say that when it was time for her delivery she was taken to Dr. Iype's Nursing Home by the plaintiff and he met all the expenses in connection with the delivery. Afterwards she returned to the plaintiff's house from the Nursing Home and lived with him for 21/2 years. It must be mentioned here that the plaintiff did not have any child through his wife and first defendant's case is that when he began to make advances to her he made her understand that since he had no child his wife would not stand in the way of closer relations between himself and the first defendant. It is said that in November 1957 there was an incident in the house of the plaintiff when the first defendant was beaten at the instance of plaintiff's sister. Plaintiff asked her to get out of the house but when she refused he attempted to throw her out along with her child and later he filed a criminal complaint against her which ended in her acquittal. Thereupon the first defendant moved for maintenance of the child before the First Class Magistrate's Court, Chowghat under Section 488 of the Criminal Procedure Code in M. C. 13 of 1959. It was found that the plaintiff was the father of the child and maintenance was awarded at Rs. 10/- per mensem. The suit is filed by the plaintiff to set aside that order and to declare that the plaintiff is not the father of the second defendant.
3. According to the plaintiff he had no contact with the first defendant in any manner. He had no occasion even to talk to her. Of course, the fact that she is a cousin of his wife is not disputed. He had constructed a building near the first defendant's building. The case that prior to the construction of his house he and his wife were living in the first defendant's house is disputed. He would also say that he has nothing to do with the hospitalization of the first defendant for delivery, much less anything to do with the case of the child at any time. He also refuted the case of the first defendant that he was the person, who on behalf of the first defendant, conducted the defence in O. P. 5 of 1956.
4. The courts below have found that tbe plaintiff's case that he is not the father of the second defendant is not true. It has been found that Kumaran Nair came over from Colombo on being apprised of the fact that first defendant became pregnantduring his absence. He is said to have sent for the first defendant to question her about this. It is the first defendant's case that at that time she expressed to him her willingness to continue with the plaintiff, a course to which, in the circumstances, he too had no objection. The courts below have also found that first defendant was taken to Dr. Iype's Nursing Home by the plaintiff and he met the expenses of her confinement. It has further been found that thereafter for about 21/2 years first defendant was living with the plaintiff. This is based upon the evidence of the first defendant as corroborated by that of the witnesses D. Ws. 2, 3 and 5. D. W. 2 spoke to the fact that he, on two occasions, took money to the first defendant when she was in the nursing home. This was entrusted to him by the plaintiff who wanted the matter to be kept confidential. He says that he was on very intimate terms with the plaintiff. D. W. 3 is a neighbour who speaks to the residence of the plaintiff and his wife in the building belonging to the first defendant prior to the delivery. D. W. 5 is the brother-in-law of Kumaran Nair. It was he who assisted Kumaran Nair in conducting the divorce petition and therefore possibly he could not have been on the side of the first defendant at any rate at that time. He would say that it was he who got down Kumaran Nair when he came to know that first defendant was pregnant. He would also say that after the delivery plaintiff took the first defendant to his own house and she was living there.
5. Tbe conclusion reached by the courts below as to the paternity of the child is very seriously challenged by counsel for the appellant-plaintiff. According to him in the circumstances of the case there is no reason to hold that the child is not that of Kumaran Nair. The presumption that a child born during the continuance of a marriage is born in lawful wedlock is, no doubt, conclusive. That the child was born in this case during the subsistence of the marriage between the first defendant and Kumaran Nair is also not in dispute. The only answer could be that at the relevant time there was no opportunity to the husband for access to his wife and that is so urged in this case by the first defendant. But tbe plaintiff would say that first defendant cannot be heard to contend so in view of her statement in Ext. P3. That is the defence statement filed by Janaki Amma, the first defendant, in the proceedings for divorce. The unequivocal stand taken in that case was that the child was born to Kumaran Nair. Thatagain turned upon a statement therein that Kumaran Nair who came in 1954 remained long enough for him to have begotten the child. It was born on 12th March 1955. It is pointed out that when the conclusive presumption itself is that the child would have been born to Kumaran Nair the statement in Ext. P3 that it was so born to him, made by none other than the mother, should be given considerable weight and in that event there is no scope for finding paternity in the plaintiff.
6. It is true, the fact that any child was born during the continuance of a valid marriage between his mother and any man, shall be conclusive proof that the child is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. As Section 112 of the Evidence Act indicates, this presumption is conclusive. It is not open to any party to attempt to prove that the child born during the wedlock of its mother with any man is not born to that man. The only exception would be a case where non-access to the mother during the period when the child could have been begotten could be shown.
7. It is well settled that proof of non-access must be distinct, definite and clear. The consequences of holding that the husband had no access to the wife would be to render the child illegitimate and the courts will be slow to hold so. To bastardise a child involves serious consequences not only to the child but to the society in general and therefore it is as a matter of public policy that courts will be loath to hold that the child born to spouses in a subsisting marriage is really illegitimate-That is why very strict proof of non-access is insisted upon. In fact non-access is a negative fact. But the courts insist upon positive proof of a negative fact. The term 'access' In Section 112 of the Indian Evidence Act, 1872 as indicated by the Privy Council in Karapaya v. Mayandi, AIR 1934 PC 49 does not imply actual cohabitation. It means no more than 'opportunity of intercourse.' Referring to this decision of the Privy Council B. K. Mookherjea, J., in the decision of the Supreme Court in Venkateswarlu v. Venkatanarayana, (AIR 1954 SC 176) explained access and non-access as connecting existence and non-existence of opportunities for marital intercourse.
8. Even if it is shown that a wife and husband are living apart and the husband is living with another woman that circumstance will not byitself be sufficient to show non-access since the situation does not in any way negative the possibility of the husband having opportunities for intercourse with the wife. Even if it is shown that the wife is living with a paramour that would not be sufficient to rebut the presumption under Section 112 of the Evidence Act. If in such circumstances a child is born to her, the husband will be presumed conclusively to be the father of the child- May be there are circumstances which can further show that the paramour effectively prevented the husband from going anywhere near the wife and in such cases, on such proof, the plea of non-access would succeed and the presumption would then no longer apply.
9. The question whether the husband had access to the wife or not is a pure question of fact and unless evidence adduced in support of the plea of non-access is so distinct and clear as to indicate that during the time the child could have been begotten the husband had no opportunity to have sexual relations with the wife the court will presume otherwise. But if it could| be shown that throughout the relevant, period the husband was out of the country, and could not have begotten a child, the position is different. Then there would be no presumption of legitimacy. That is the question here. The plea of non-access is based upon the absence of the husband from India during the time when in the normal course the child, which was born in March 1955, could have been begotten.
10. On that question the courts, below have found concurrently against the plaintiff and I see no reason to interfere. Documents which indicate that Kumaran Nair was in Colombo during the relevant period have been adverted to by the courts below and it has been established beyond doubt that Kumaran Nair was not available in India to father the second defendant. In fact even the plaintiff has no such case in his evidence. It is not even suggested that Kumaran Nair was here at or about the time when the child could have been begotten. In the face of this, what is stated in Ext. P3 and what is relied on as an admission, must necessarily be of no avail. An admission, it is well settled, is not conclusive and could be explained away. The weight of the admission would vary from case to case. It would depend upon the purpose for which and the circumstances and situation in which the admission is said to have been made. In this case the first defendant, Janaki Amma, had decided to contest her husband's divorce petition. At that time possibly she didnot want to admit that the child was illegitimate and therefore naturally a contention that the child was born to Kumaran Nair was set up. Of course, Janaki Amma explains in this suit that it was the plaintiff who was conducting the divorce case on her behalf. Whatever that be, there is nothing unusual in her conduct at that time- Whoever might have been the father of the child she wanted to lay the responsibility on Kumaran Nair. That is normal human conduct. It was only when it was found that it would not find acceptance that, naturally, she would have turned to the man who was really responsible.
11. What I have said above would be sufficient for me to find that the plaintiff cannot succeed in his contention that it must be presumed that the father of the second defendant is Kumaran Nair. But that does not necessarily mean that the plaintiff is the father. That has to be independently established. In that again the plaintiff's case is that the evidence of the first defendant remains without corroboration.
12. The rule that the evidence of a mother in regard to paternity of her child requires to be corroborated by independent evidence is, unlike in England, not a statutory requirement. It is only a rule of prudence and caution. It is intended to save persons from being faced with irresponsible charges of paternity of children. In the case of a woman who might have had occasion to enter into sexual relations with a number of men it would be only natural to expect her to turn to the best among them for fathering the responsibility of a child born to her- That is why in such cases courts have to be extremely careful in finding out whether the case of paternity spoken to by the mother is to be accepted. In England the rule of corroboration is a requirement of the Statute. Bastardv Laws Amendment Act, 1872 required that the justices--
' .........shall hear the evidence ofsuch woman and such other evidence as she may produce, and shall also hear any evidence tendered by or on behalf of the person alleged to be the father, and if the evidence of the mother be corroborated in some material particular by other evidence to the satisfaction of the said justices, they may adjudge the man to be the putative father of such bastard child:'
This, as a rule of expediency or prudence has been accepted by the Courts in India. But it is not advisable to lay down any definition of the term 'corroboration' in this context. What wouldamount to corroboration must depend upon the facts and circumstances of each case and must be left to the Judge to decide in the background of the case with which he is dealing, though it is possible to say what corroboration would not be. It is difficult or rather impossible to find corroboration for the sexual acts themselves. That is because normally these are done in the privacy of the bedroom, away from the notice of witnesses. What could be expected to be corroboration would be evidence of the conduct of both parties, the mother and the person alleged to be the father which may show affectionate bearing towards each other either before or after the alleged conduct of intimacy. The evidence of corroboration must therefore necessarily be circumstantial evidence from which it would be possible to draw a conclusion in favour of the plea of sexual intimacy between the mother and the person alleged to be the father at the relevant time. In certain cases it will be possible to say that proof of close familiarity between the parties may corroborate the case of the mother about the paternity. It is especially so when the defence is not one explaining away the close familiarity but entirely denying such a case. That is why it is not possible to strait-Jacket the rule. In a case such as the one before me where plaintiff would go to the extent of denying that he had even talked to the first defendant and would say that he had nothing to do with meeting, the expenses of confinement of the first defendant, let alone taking her to the nursing home and would further emphatically refute the case of the woman staying with him at any time, if some or all of these facts are proved, that would amount to corroborating By setting up such a plea he disables himself from explaining away these circumstances. Therefore though in some cases one or other of these circumstances or possibly in some cases all these circumstances together may not be sufficient for the court to draw an inference that there was illegitimate intimacy between the mother and the person claimed to be the father the case may be different where the defence set up is one denying everyone of these circumstances and not seeking to explain them.
13. The evidence in the casepositively establishes that the plaintiff took Janaki Amma to the nursing home for her confinement, he met all the expenses, he was living earlier in the tavazhi house of the first defendant along with her and later she was taken to his own house, I was not referringto the evidence for the purpose of considering whether I should believe the witnesses or not but only to see if, in case they are believed, their evidence would be sufficient to corroborate her story. As I pointed out earlier, in the circumstances of the case, and in the nature of the stand taken by the plaintiff, these circumstances which do call for an explanation are not attempted to be explained and naturally they cannot be in view of the stand taken by the plaintiff. If so, these circumstances must necessarily corroborate the testimony of Janaki Amma. It would be prudent therefore to accept her case that plaintiff is the father of her child, the second defendant. It is not as if the plaintiff has even indicated that the first defendant was leading an immoral life. Apparently the parties belong to respectable families. If as a matter of fact the plaintiff even suspects that the father of the child is someone else there would have been at least some suggestion to that effect during the cross examination of the first defendant. Even plaintiff's evidence does not indicate this. In fact an answer given by him in chief-examination shows his reluctance to answer this question in a direct manner :
(Answer in original omitted-Ed.)
14. Cole v. Manning, (1877) 2 QBD 611 was a case where, in corroboration of the story of the mother as to the paternity of her child, evidence that, several months before the child could have been begotten, the respondent was seen to be on very familiar terms with the plaintiff was held to be sufficient. Mellor, J,, in this connection, said thus :
'No rule of law excludes testimony as to the acts of familiarity before the time when the bastard child could have been begotten; and evidence of that kind shows at least a probability that the statement of the mother is true. Although the corroborative evidence related to the summer of 1874, and the intercourse resulting in the birth of the child did not take place until January, 1875, yet the magistrate was bound to act upon that evidence if he was satisfied as to its truth.'
In Thomas v. Jones, (1921) 1 KBD 22 before the Court of Appeal in England the question as to what would amount to corroboration came up. On the facts of that case the learned Judges were apparently divided but on the law there was no controversy. Bankes L. J. referred to the decision in Rex v. Baskerville, 1916-2 KB 658 in considering the question as to what constituted corroborative evidence. That of course had been considered, all along, as the leading case on the question ofcorroborative evidence. But in that case the court was dealing with the case of corroboration of the evidence of an accomplice. The court said in that case thus :
'The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the hind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.'
Banks, L. J., was of the view that this would apply even to the case of corroboration required in regard to paternity under the Statute with which they were dealing in the case and in this connection the learned Judge said thus : '............I would only add my emphatic agreement with what the Lord Chief Justice said, that it would be in high degree dangerous to attempt to formulate the kind of evidence which should be regarded as corroboration, or to attempt any general definition of what constitutes corroborative evidence.' Atkin, L. J., said :
'The evidence of the mother of the child to be sufficient has to be 'corroborated in some material particular by other evidence to the satisfaction of the said justices.' That appears to me to be a very important safeguard, and It is of the greatest importance that it should not be whittled down, but should be maintained in full, as in my experience it is essential for the purpose of doing justice between the parties in this class of case, where charges are so easily brought and with such difficulty refuted, and where there is a strong temptation either to conceal the identity of the real father or to impose liability upon the person who is best able to bear it. What is meant by corroborative evidence is established now by the decision in 1916-2 KB 658. which I think must be treated as an authority generally upon the meaning of corroborative evidence. It must be evidence which tends to prove that the man is the father of the complainant's child; in other words, it must be evidence implicating the man, evidence which makes it more probable than not that the respondent to the summons is the father of the child.'
This Court In Abdul Rahimankutty v. Aysha Beevi, 1959 Ker LT 1077 = (AIR 1960 Ker 101) referred to the decision of the Patna High Court in Tha-kur Prasad v. Godavari Devi, AIR 1951 Pat 514 in support of its view that cor-roboration in the matter of evidence of the mother is called for. The same view has been expressed by Ramapra-sada Rao, J., in Vira Reddi v. Kistamma, AIR 1969 Mad 235 and by Somnath Iyer, J., in Boramma v. Dharmappa, AIR 1969 Mys 17.
15. I do not think that there is any scope for departing from the view taken by the courts below on the question of paternity of the second defendant. The plaintiff is found to be the father and therefore the second appeal fails and it is dismissed with costs.