1. These appeals arise out of a suit for partition brought by the minor plaintiff with his alleged mother as his next friend. Defendant 1 is alleged to be the father of the plaintiff; defendant 2 is the first wife of defendant 1, and defendant 3 is their daughter. In A. S. No. 79 the appellant is defendant 1. In A. S. No. 80 the appellant is defendant 2. There is also a memorandum of cross-objections by the plaintiff. The plaintiff's next friend, Lakshmiprasannama, was a widow when she married defendant 1 on 17th March 1935. For the sake of brevity, she will be referred to as P.W. 6. Defendant 1 is a pleader who at that time was carrying on a practice in two towns of the Guntur district, Narasaraopet and Gurzala. He had no son by his first wife, whose health was poor, though we are informed that a son has been born to her since the suit was filed. The parties are Brahmins and the marriage of defendant 1 to a widow was naturally regarded as unorthodox. P.W. 6 lived with her husband, first at Narasaraopet, and then for a short time at Gurzala. In February 1936 defendant 1 discovered letters which led him to believe that P.W. 6 was carrying on an intrigue with her husband's cousin, Suryanarayana and at the instance of this individual was administering noxious drugs to her husband. He reported to the police and P.W. 6 was arrested but released on bail. In March 1936 there seems to have been some sort of a reconciliation between the husband and wife and they resumed cohabitation. The complaint to the police was rejected and P.W. 6 continued to live with her husband. But at the end of May 1936 she made a complaint to the police that her husband had attempted to strangle her. She left him and went to Guntur where she spent some time with her uncle and others. From 2nd July 1936 to 10th September 1936 after another reconciliation defendant 1 was once more living with P.W. 6 in a house in Brodipet, Guntur. These dates are most important, for the plaintiff is alleged to have been born on 18th April 1937, so that in the ordinary course of nature he would have been conceived at or about the end of the first week of the previous July. In November 1936 defendant 1 was apprised by means of a written statement filed by P.W. 6 in a suit relating to the incriminating letters that she was pregnant. There is abundant evidence to show that she was admitted into the Government Hospital, Guntur, on 18th April 1937 and that she gave birth to a son on the same day. When, however, the birth was reported to the municipal authorities two mistakes were made in the report; the name of the mother was wrongly given as Lakshminarasamma instead of Lakshmiprasannama, and the name of the father was given as Sistla Venkatakristnayya which is the name of P.W. 1. P.W. 1 deposes that he is a distant relation of the lady and that it was he who took her to the hospital when she was taken ill. There is no evidence that any other woman called Lakshminarasamma gave birth to a child in the Government Hospital, Guntur, at this time and it was only after the plaintiff had instituted proceedings for the correction of the municipal birth register that defendant 1 began to deny that the plaintiff was the child of P.W. 6.
2. A great deal of time was taken in the argument of defendant 1's appeal on the two questions connected with the birth of the plaintiff. The denial of the maternity of P.W. 6 seems to have been based almost entirely on the error in the report which the hospital authorities sent to municipal office. We see no reason to go in detail into this question for we agree entirely with the lower Court that it was abundantly proved that the plaintiff is the son of P.W. 6 and that he was born in the Government Hospital, Guntur on 18th April 1937. Not only are these facts established by the hospital registers, but the plaintiff has examined another lady who was a patient in the labour ward of that hospital at the same time; and the entire absence of any challenge to the birth until after the rectification proceedings were taken in December 1938 makes it clear that there is no substance in the doubts upon the maternity of P.W. 6. A more substantial question relates to the paternity of defendant 1. In the lower Court defendant 1 was allowed to depose that though he was cohabiting with P.W. 6 at the time when the child was presumably conceived, he was not the father of the child. Arguments have been heard on the question whether the rule in Russell v. Russell (1924) 1924 A.C. 687 applies to the trial of legitimacy proceedings in India. A Full Bench of the Calcutta High Court in Sweenney v. Sweenney (1935) 62 Cal. 1080 has held that Russell v. Russell 1924 A.C. 687 is good law in India and that whether in divorce or in legitimacy proceedings the husband cannot be allowed to give evidence of non-access so as to bastardise the child. There is, however, a Full Bench decision of this High Court which was criticised by the Calcutta High Court in the case just quoted, from which a contrary view can be deduced. We refer to the decision in John Howe v. Charlotte Howe A.I.R. 1916 Mad. 338 where it was held that whatever be the common law of England on the subject, under Sections 118 and 120, Evidence Act, both the parties to proceedings for divorce are competent to give evidence as to non-access and the consequent illegitimacy of the child. This decision was before Russell v. Russell 1924 A.C. 687; but it is to be noted that the House of Lords in Russell v. Russell 1924 A.C. 687 did not purport to do more than lay down that what was admittedly the pre-existing common law of England in legitimacy proceedings on the subject of the admissibility of the evidence of husband or wife applied equally to divorce proceedings when that evidence tended to bastardise a presumed child of the marriage. The Full Bench of this Court held that on such matters Courts in India are governed not by the common law of England, but by the Indian Evidence Act. Under Section 120 of that Act the parties to the suit and the husband or wife of any party to the suit are competent witnesses in all civil proceedings. When we wish to find out what evidence a competent witness can give, we must have regard to the general rules of relevancy and admissibility as laid down in the Evidence Act, subject only to such special exceptions as the Indian statute law embodies. In our opinion there is nothing in the Evidence Act which debars a husband from giving evidence of non-access to his wife, even though the effect of such evidence may tend to prove that a child born during the continuance of the marriage to the wife is illegitimate. We are not now concerned with the question whether Section 7, Indian Divorce Act, can be read as importing the rule in Russell v. Russell (1924) 1924 A.C. 687 in to the trial of 'divorce proceedings in India.
3. The law governing the proof of legitimacy of a child born during the continuance of a marriage is laid down in Section 112, Evidence Act. The fact that the child was born during the continuance of a valid marriage between the mother of the child and her husband is conclusive proof that the child is a legitimate child of the husband, unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. The appellant in Appln. No. 79 has laid great emphasis on the decisions of Venkatasubba Rao J. in Jagannadha Mudali v. Chinnaswami Chetti A.I.R. 1932 Mad. 39 and Samuel v. Annammal A.I.R. 1934 Mad. 310 where the learned Judge deduces from certain English decisions the rule that the word 'access' in Section 112, Evidence Act, means actual sexual intercourse and not a mere opportunity of intercourse. If this view is correct and if the deduction from John Howe v. Charlotte Howe A.I.R. 1916 Mad. 338 adumbrated above is applied, it would follow that the husband was rightly allowed by the lower Court, to swear that, though during the period when the child was presumed to be conceived, he was actually living with the mother and had every opportunity for complete marital relations, he did not, in fact, have sexual intercourse with his wife and that he was therefore not the father of the child. There is, however, clear authority of the Privy Council for holding that the decisions of Venkatasubba Rao J. referred to above embody an incorrect view of the meaning of the word 'access' in Section 112. In Karapaya Servai v. Mayandi their Lordships observe as follows : 'It was suggested by counsel for the appellants that 'access' in the section implied actual cohabitation, and a case from Madras reports was cited in support of this contention. Nothing seems to turn upon the nature of the access in the present case, but their Lordships are satisfied that the word means no more than opportunity of intercourse.' Presumably the case referred to by their Lordships was one of the decisions of Venkatasubba Rao J. which we have already quoted. It seems to us to be established by these observations of the Privy Council that the word 'access' in Section 112, Evidence Act, does not mean actual sexual intercourse and that the only way in which the presumption under that section can be displaced is by proof that the parties to the marriage had no opportunity for intercourse with each other at any time when the child could have been begotten. We may add that since the decision of the Privy Council, two single Judges of this Court have recognised that the view taken by Venkatasubba Rao J. must now be deemed to be erroneous: vide Krishnappa v. Venkatappa A.I.R. 1943 Mad. 632 and Manicka v. Ammakannu : AIR1942Mad129 . That being the law, the conclusion of fact on the paternity issue becomes inevitable. Defendant 1 and P.W. 6 were living together as husband and wife in the same house at Guntur from 2nd July 1936 to 10th September of that year; that is to say, they were living together during the whole of the period within which in the ordinary course of nature the plaintiff must have been conceived. There are no such circumstances as to make it impossible, or even improbable, that defendant 1 could have begotten the plaintiff during this period. We must therefore hold that it is conclusively proved that defendant 1 is the father of the plaintiff. We may add that defendant 1 himself seems to have had no doubt regarding his paternity until about the time when the suit was filed. In fact, on receipt of the lawyer's notice indicating an intention to demand partition on behalf of the plaintiff, defendant 1 sent a letter, Ex. C-l dated 20th December 1937, which contains no indication that he had any doubt as to his fatherhood of the child. We find therefore that the plaintiff is the child of defendant 1 by his wife, P.W. 6.