There are three sections in the Act which deal with conclusive proof, viz., Ss. 41, 112 and 113. The contents of these sections are discussed below.
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1. Judgments in probate and other jurisdictions (S. 41):
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A final judgment, order or decree of a competent Court, in the exercise of its.
(i) Probate,
(ii) Matrimonial,
(iii) Admiralty, or
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(iv) Insolvency jurisdiction
Not against any specified person, but absolutely (i.e., in rem)
Is conclusive proof—
(a) That any legal character
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(i) Which it confers, accrued at that time when such judgment, decree or order came into operation;
(ii) Which it declares any such person to be entitled to, accrued to him at the time when such judgment, decree or order declares it to have accrued to him;
(iii) Which it takes away from any person, ceased at the time from which such judgment, decree or order declared that it had ceased or should cease;
(b) That anything to which it declares any person to be entitled was his property at the time from which such judgment, decree or order declares that it had been or should be his property.
[S. 41 has already been discussed above.]
2. Birth during marriage conclusive proof of legitimacy (S. 112):
The fact that any person was born—
(1) During the continuance of a valid marriage between his mother and any man, or
(2) Within two hundred and eight days after its dissolution (the mother remaining unmarried), is 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.
Scope of Section 112:
Evidence that a child is born during wedlock is sufficient to establish its legitimacy, and shifts the burden of proof to the party seeking to establish the contrary.
Sections 41, 112 and 113 (discussed later) are the only sections which deal with matters which are to be regarded as “conclusive proof”. No rule of the kind can be based on considerations of evidence, because enquiry is altogether excluded.
The basis of the rule contained in S. 112 seems to be that it is undesirable to enquire into the paternity of a child whose parents have access to each other. This section refers to the point of time of the birth of the child as the deciding factor, and not to the time of conception of that child; the latter point of time has to be considered only to see whether the husband had no access to the mother.
The presumption as to paternity in this section arises only in connection with the offspring of a married couple. The section applies to the legitimacy of the children of married persons only. On the birth of a child during marriage, the presumption of legitimacy is conclusive, no matter how soon the birth occurs after the marriage.
Under the section, a child born in wedlock should be treated as the child of the father who was at the time of its birth, the husband of the mother, unless it is shown that he had no access to the mother at the time of its conception, irrespective of the question whether the mother was married or not at the time of the conception.
The presumption contemplated by this section is a conclusive presumption of law, which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when, according to the ordinary course of nature, the husband could have been the father of the child. (Venkateswarlu v. Venkatnarayan, A.I.R. 1954 S.C. 176)
The word “access” means effective access as is shown by the use of the words “when he could have been begotten”, and physical incapacity to procreate amounts to non-access within the meaning of this section. (Bhagwan Bakhsh v. Mahesh Bakhsh, A.I.R. 1935 P.C. 199)
In a case decided by the Kerala High Court, the facts were interesting: A wife had become pregnant after her husband had undergone a vasectomy operation. The husband alleged that she had conceived because of illicit intercourse, and claimed to be entitled to a decree for divorce on this ground.
The success of the operation was not proved before the Court. Nor was any case made out by the husband that he had no sexual intercourse with the wife during the period when she could have conceived. Also, the allegation of illicit relations was not repeated by the husband on oath when in the witness box.
Taking all these circumstances into consideration, the Court held that the presumption would be that the husband was the father of the child. No decree for divorce was, therefore, passed in his favour. (Chandramathi v. Pazhetti Balan, A.I.R. 1982 Ker. 68)
The Calcutta High Court has held that the paternity of a child born during lawful wedlock cannot be decided by a blood group test, in view of the provisions of S. 112. (Tushar Roy v. Sukla Roy, 1993, Cri. L.J. 1659)
The principle of this section does not apply to the case of a paramour, and the presumption can be rebutted when the mother of child is not the wife, but a mistress, and it would be open for the mistress to prove that the real father of the child born during the period of her concubinage is different from the paramour.
A wife can be examined to prove non-access of her husband during her married life, without independent evidence being first offered to prove the illegitimacy of the children. She is a competent witness to prove access or non-access by her husband.
In a leading case, Russell v. Russell (1924 A.C. 687), it has been laid down that neither the declarations of the wife, nor her testimony that the child was the child of a man other than her husband are admissible, nor of the husband that he was not the father of the child.
The Allahabad High Court has held that the English rule that such evidence is inadmissible because it is evidence which tends to bastardize the child is not applicable to the Courts in India; there is nothing in the Indian Evidence Act which renders this evidence inadmissible.
In a suit for divorce by the husband on the ground of the wife’s adultery, alleged to be established by the fact of her having given birth to an illegitimate child, evidence by the husband of non-access to the wife, at any time when the child could have been begotten is admissible, and an admission by the wife that the child is illegitimate is also admissible in evidence.
3. Cession of Territory (S. 113):
A Notification in the Official Gazette that any portion of British territory has, before the commencement of Part III of the Government of India Act, 1935, been ceded to any Native State, Prince or Ruler is conclusive proof that a valid cession of such territory took place at the date mentioned in such Notification.
