Venkatasubba Rao, J.
1. This appeal raises the question of the paternity of the plaintiff. He claims to be the legitimate son of the 1st defendant and impeaches the alienations made by him in favour of defendants 3 to 9. The 2nd defendant, the plaintiff's mother, was legally married to the 1st, about 30 years previous to the suit; but within three months of the marriage, the wife left the husband and lived in a village called Chintamani near her husband's village, with a paramour Kuttalam Chetty. The evidence is, that she has all through been living with this paramour and that there has been no kind of access between the husband and the wife. The plaintiff, on the date of the suit, was 26 years old and the 1st defendant repudiated the plaintiff's legitimacy not only in the suit but also in his will executed by him during the pendency of the action. The Trial Court, after carefully considering the evidence, has come to the conclusion that the presumption under Section 112 of the Indian Evidence Act in favour of the plaintiff's legitimacy has been clearly rebutted-Besides fully dealing with the large body of oral evidence, the learned Munsif refers to two important documents: Ex. V is an extract from the birth register of Chintamani village relating to the plaintiff--there his mother's name is given as the 2nd defendant and no reference is made to his paternity. Again, Ex. XVII is an extract from the death register relating to the same village and that show that the 2nd defendant lost a male child born to her. The 1st defendant married a second wife and had by her two daughters, defendants 10 and 11. The learned District Judge, though he differs in his conclusion from the Munsif, does not differ from him as regards the effect of the evidence. Referring to the evidence of D. W. 2, this is what the learned Judge says:
His statement that the 2nd defendant never lived with her husband all these 30 or 34 years except for 3 months following marriage may be perfectly true and yet the 1st defendant may have been the father of the plaintiff.
2. The observation of the learned Judge in regard to D. W. 8 may also be quoted:
It may generally be true that after the 2nd defendant came to live in Chintamani, the 1st defendant was not going to her and she was not visiting the 1st defendant. But from this it could not be said that the husband and wife had no access to each other at the beginning of 1901.
3. To make clear the reference to the year 1901 in the above passage, I may state that the 1st defendant married the second about 1897, that the wife deserted the husband in three months thereafter and that the plaintiff was born in October, 1901. I may extract another very important passage from the learned Judge's judgment:
As I have stated before, assuming every word of what the witnesses have said is true, the result goes no further than raising a strong suspicion and perhaps even a probability that the plaintiff is not the son of the 1st defendant. But this is not enough to negative the presumption that arises in his favour under S.112 of the Evidence Act. . . . They were living in neighbouring villages. . . Opportunities for intercourse between the 1st defendant and 2nd defendant there were in abundance.
5. In a case decided by a Bench of this Court (Mayandi Asari v. Sami Asari : AIR1932Mad44 ) the Subordinate Judge on facts more or less identical came to a conclusion similar to what has been reached by the present District Judge. It was there pointed out by the learned Judges that the Lower Court misunderstood the scope and effect of Section 112. In that case what happened was this: 'The Lower Court found that the 11th defendant had been long living apart from her husband, that in fact she was living with some paramour at Melur, but held that, as Melur is only nine miles from Karuppannan's village, Porusupatti, and as Karuppannan used occasionally to go to Melur to buy cattle in the market, it cannot be said that he had no opportunity of access to her at the time of the plaintiff's conception.' The observations of the learned Judges are well worth quoting in extenso:
It is plain that Section 112 lays a heavy burden on the contesting defendants, the burden of proving or 'showing' non-access, but such proof is not different from any other species of proof under the Evidence Act, namely, 'when after considering the matters before it the Court either believes' that there was non-access, ' or considers its existence so probable that a prudent man ought in the circumstances of the particular case to act upon the supposition that it exists (Section 3 of the Evidence Act). It is not necessary, in fact it is not possible in most cases, for a party to prove a negative by positive evidence, and the test laid down by the Lower Court comes very nearly to insisting on positive proof of a negative. Putting the most reasonable interpretation on the Lower Court's proposition, it amounts to this: that non-access cannot be proved so long as the parties are within reasonable distance of each other, unless there is the evidence of a witness available who can account for every minute of the parties time, which is of course practically impossible. It is the more necessary not to interpret Section 112 in such an unreasonable fashion in this country, because here among the majority of Hindus a valid marriage once contracted cannot be dissolved and therefore 'continues' until the death of one party to it. In the circumstances of this case we have no hesitation in holding, that the Lower Court's view that the legal burden has not been discharged is wrong.
6. The effect of Section 112 is, in my. view, this: there is a presumption and a Very strong one, though a rebuttable one, that a child born in lawful wedlock is the legitimate child of its mother's husband. The same presumption is also stated some what differently: during coverture access of the husband shall be presumed, unless the contrary be shown (Blackstone); in other words, 'Where a child is born in lawful wedlock, sexual intercourse is presumed to have taken place between the husband and the wife'. But when once access of, or intercourse by, the husband is proved, no evidence will be allowed to show that the child is not the' child of the husband, that is to say, the presumption to be drawn becomes an irrebuttable one.
7. The English cases show by way of illustration what the kind of evidence is that is required to rebut the very strong presumption of legitimacy (The Aylesford Peerage Case (1886). 11 A.C. 1) there although the husband arid the wife/during the critical period when the child must have been conceived, were living at different houses though in the same city, the Court held that the facts proved sufficiently rebutted the presumption of legitimacy. I may also refer to Hitherington v. Hitherington (1887) 12 P. 112, where the Court went so far as to say that the presumption by reason of certain facts became reversed. Then again in Morris v. Davis (1837) 5 C. L. & F. 163 the husband and the wife lived within such distance as afforded them opportunities of sexual intercourse. It was held by the House of lords that the presumption in favour of the legitimacy was rebutted by reason of the facts there established. I have already referred to a judgment of a Bench of this Court in Mayandi Asari v. Sami Asari : AIR1932Mad44 . There is undoubtedly, as I have said, a presumption in favour of. the legitimacy of a child born in lawful wedlock, but the Court has in each case to weigh the evidence and answer the question: Has that presumption been rebutted by proper evidence that such access did not take place between the husband and the Wife at the time when the child must have been conceived, as by the laws of nature is, necessary, for the man to be, in fact, the father of the child? This is essentially a question of fact and must be dealt with as any other question of fact is. Section 112 says that the legitimacy shall be presumed, 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. Is it incumbent on the person who seeks to rebut the presumption to prove non-access, in the sense, that there were no opportunities of access? Does it mean that he is bound to show that the husband and the wife were, during the critical period, living at such distant places that access was physically impossible and that nothing short of such proof will avail him To take a concrete case, if it is shown, for instance, that the husband and the wife live, say, in the, City of Madras, no proof, however convincing or conclusive, can rebut the presumption (if the Lower Court's view is correct), as, exhypothesi there being opportunities of access, the Court has no other alternative than to assume, in the teeth of the positive evidence to the contrary, that there was in fact, what is known as generating access. To take yet another instance, supposing the husband and the wife are residing in adjacent villages and it is proved that the wife is living in open adultery with a stranger, is the husband to be precluded from showing that he had no access to or intercourse with his wife? A view that leads to such startling results, I must confess, I am unable to take. Indeed, the very fact that in numerous English cases, where opportunities (of varying degree) of access have been shown to exist, eminent Judges have, after a careful scrutiny of the evidence, held that non-access has in fact been made out, demonstrates beyond a shadow of doubt, that such a view cannot possibly be right. Although I have already fully dealt with this question twice in the judgments delivered* by me, I have been tempted to deal with it again at this length, owing to the misapprehension I find, that prevails in regard to the effect of this section.
8. In the result, the second appeal is allowed and the suit is dismissed with costs throughout.