1. In this case an interesting question arises for decision regarding the legitimacy of the plaintiff. The plaintiff's mother, Pechi Ammal, was first married to one Subramania Thevan in September or October, 1903. That marriage, it is found, was dissolved in May or June, 1904, and then she married again one Thirumeni Thevan in June or July, 1904. The plaintiff was born to her in September, 1904. These are the findings of fact by the lower Courts.
2. The question that has to be decided is whether on these facts the plaintiff is to be treated as the legitimate son of Thirumeni Thevan and is entitled to a share of his properties as the District Munsif has held, or whether he is not the son of Thirumeni Thevan but the legitimate son of Subramania Thevan as the Subordinate Judge seems to consider. Pechi Animal's marriage with Subramania Thevan did not prove to be a happy one. Thirumeni Thevan seems to have conceived a great regard for her and was a rival for her affections from the very commencement. Subramania Thevan and Pechi Ammal seem to have quarrelled with each other and she left his protection, and there was a criminal case in which Subramania Thevan charged Thirumeni Thevan and others that his wife had been enticed away by Thirumeni Thevan for the purpose of illicit sexual intercourse with her. In that case however the accused were discharged; thereupon Subramania Thevan divorced his wife. The District Munsif has held that Thirumeni Thevan is really the father of the plaintiff and that he had access to Pechi at the time the child was begotten even though she was the wife of Subramania Thevan. He also refers to evidence which shows that Thirumeni Thevan treated the young boy as his own son till his death in April, 1917.
3. The question whether the plaintiff is to be treated as the legitimate son of Thirumeni Thevan or not seems to me to depend entirely upon the language of Section 112 of the Evidence Act, which lays down the rule which really governs this case. That section says that ' the fact that a person is born during the continuance of a valid marriage between his mother and a man ' (leaving out unnecessary words) ' shall be conclusive proof that he 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. ' in this case the plaintiff was born during the continuance of a valid marriage between his mother and Thirumeni Thevan. The section is very clear, and unless non-access of Thirumeni Thevan to her is proved at the time when the plaintiff would have been begotten, he must necessarily be treated as the legitimate son of Thirumeni Thevan, for the section says that the fact of birth must be taken as conclusive proof of the son's legitimacy. A married woman might have many paramours, but, the child born to her must be treated under Section 112 as the legitimate son of her husband, and the fact that she has para mours is of no account whatsoever unless her husband, if he disputes the paternity of the child, is able to show that he had no access to her at the time of conception. The fact that other people had also access is not material in considering the legitimacy of the child. That is the rule framed by the Legislature in Section 112 and we must follow that rule in dealing with questions of legitimacy. The difficulty that arises in this case is from the fact that at the time conception must have taken place the plaintiff's mother was the lawful wife of Subramania Thevan. The Subordinate Judge seems to think that because she was Subramania Thevan's lawful wife it must necessarily be presumed that Thirumeni Thevan had no access to her. I am not prepared to adopt such a presumption particularly in this case where the evidence points the other way, as the District Munsif has clearly explained. There is absolutely no evidence as to non-access of Thirumeni Thevan at the time the child was begotten. Applying Section 112 the question raised in this case must be answered in favour of the Munsif's view that the plaintiff is the legitimate son of Thirumeni Thevan. The mistake made by the Subordinate Judge is in failing to notice that Section 112 refers to the point of time of the birth of the child as the deciding factor and not to the time of the conception of that child. The point of time of the conception of the child has to be considered only to see whether the husband had not access to the mother. If he had access then the child that is born must be treated as the child of the father. A case lngestre v. Attorney-General seems to have been recently decided in the same way in England where a question exactly similar to this arose. I have not been able to refer to the case itself, for it seems to have been reported only in The Times newspaper. But the case is referred to in a learned article in 30 Law Quarterly Review, which deals with this question. The conclusion which the writer of that article comes to is that the decision makes it clear that the rule in modern English Law is that birth in wedlock makes a child legitimate and the only ground for disputing its paternity is to show that the father had no access to the mother at the time the child was begotten, and no other exception is allowed. That seems to be clearly the English Law. Section 112 of the Evidence Act is really based upon the English rule, and its language clearly supports the view I am taking that the child born in wedlock should be treated as the child of the father who was then the husband of the mother unless it is shown that he had no access to the mother at the time of conception quite irrespective of the question whether the mother was a married woman or not. It is quite true that if the plaintiff had been born within 280 days after the dissolution of the marriage of his mother with Subramania Thevan and if she had not been married by the time of his birth the section would have made him the legitimate son of Subramania Thevan. But those are not the facts here. The fact here is that the mother was married again before the child was born and applying the rule of Section 112 we must necessarily hold that the child is the legitimate son of the second husband. The rule may be somewhat artificial and may not always correspond with actualities in nature. But it is necessary to have a rule like this to avoid unnecessary disputes as to the legitimacy of children and the rule must be worked according to its terms.
4. The Subordinate Judge has relied upon a case in Nicholas v. Asphar ILR (1897) C 316. There the learned Judge no doubt held in somewhat similar circumstances that the child should be treated as the legitimate child of the first husband during the subsistence of whose marriage the child was conceived. With very great respect to the learned Judge who tried the case it seems to me that he overlooks the exact language of Section 112 when he says at page 222 that ' There is no evidence of want of access, and Section 112 of the Evidence Act, in the absence of such evidence, regards the presumption of legitimacy arising from conception during a valid subsisting marriage as conclusive. ' In Section 112 there is no reference to conception in the first part of it. The presumption of legitimacy arises from birth and not from conception unless as already stated it can be shown by proof of non-access that conception could not have resulted from the connection of the husband with the wife.
5. In the view I am taking I do not think the second point dealt with by the Subordinate Judge, that the child was the result of Pechi's adulterous sexual intercourse with Thirumeni Thevan and therefore he is not entitled to inherit to him can be supported either, for the section excludes any such allegation or proof. The section says that I should take it as conclusively proved that plaintiff is his legitimate son and the question whether the original connection was adulterous or not does not arise. Treating the plaintiff as the legitimate son of Thirumeni Thevan he is entitled to a share in his property. Considering that Thirumeni Thevan was treating the plaintiff all along as his own son, and that he knew perfectly well when he married Pechi Ammal that she was a pregnant woman and yet took no objection himself to the parentage of the child and considering that in all possibility Thirumeni Thevan is the real father of the child I am glad I have been able to arrive at a conclusion in favour of the plaintiff's right to inherit to him. The parties are Maravars; and divorces and second marriages of women are quite common among them and a man is allowed to marry more than one wife. There is thus no difficulty of the second marriage with Thirumeni Thevan being invalid or illegal.
6. The Subordinate Judge in paragraph 13 of his judgment states that since the law presumes chastity of a married woman it is impossible to hold that Thirumeni Thevan could have had access to Pechi Ammal. It seems to me that the latter statement of his goes too far. Whether there be a presumption or not, that a married woman is chaste, a presumption for which no authority has been quoted, it is clear that in the circumstances of this case Pechi Ammal was not chaste. She seems to have had connection with Thirumeni Thevan while she was the wife of Subramania Thevan and that was probably the reason for her divorce. The question whether he had access or had no access is a question to be decided on the evidence and on the facts proved and not on any presumptions. It was suggested that I should call for a finding from the Subordinate Judge on the question of Thirumeni's access to Pechi, but in the state of evidence which has been fully discussed by the District Munsif I think his finding is correct and it is not necessary to send the case down for a fresh finding as I can myself find the fact under Section 103 of the Civil Procedure Code. There is good reason to find that he had access to the woman at the time the child was begotten. The decree of the lower appellate Court is reversed and that of the District Munsif is restored with costs here and in the lower appellate Court.