Burden of proving non-access is on the person who disputes the paternity

Under Section 112 of the Evidence Act, burden of proving non-access is on the person who disputes the paternity. Though it is a negative aspect it is well settled that the person who is bound to prove non-access should prove the same by positive evidence. His own interested denial cannot be accepted as sufficient to discharge the burden of establishing access. The Appellant has not discharged satisfactorily the burden of proving that he had no access to the first Respondent. This is normally sufficient to draw the presumption of legitimacy available under Section 112 of the Evidence Act in this case and to hold that the second Respondent is the son of the Appellant.IN THE HIGH COURT OF KERALA

S.A. 897/86

Decided On: 25.09.1991

Appellants: Hamza
Vs.
Respondent: Sara and Anr.

Hon'ble Judges/Coram:
T.V. Ramakrishnan, J.

Evidence Act, 1872 (Central Act I of 1872) Section 112 - Presumption regarding legitimacy of child born during the subsistence of marriage--Section superseded the Mohammadan law of presumption of legitimacy--Section 340 of the Book on Mohamedan Law by Mulla not applicable to India.

The putative father, the Appellant, filed the suit for a declaration that he is not the father of the second Defendant (second Respondent) and for consequential other reliefs. In the plaint it was admitted that he married the 1st Defendant on. 11th June 1981, that the 2nd Defendant was born on 22nd December 1981. The marriage was dissolved by Appellant by Talak on 27th December 1981. He alleged that the 1st Respondent was six months pregnant at the time of marriage, that the fact was suppressed from him and he came to know about it only later, that he had no access to the 1st Respondent 'before the marriage and as such the 2nd Respondent is not his son. The 1st Defendant specifically asserted that the Appellant had sexual intercourse with her prior to the marriage, that she became pregnant as a result, that the marriage was conducted mainly for the purpose of formalising the relationship they had prior to the marriage. The trial court dismissed the suit. The dismissal was confirmed in appeal. Hence the Second Appeal. Dismissing the appeal;

Held:

There is no dispute about the fact of marriage between the. Appellant and the first Respondent on 11th June 1981 and the further fact of the birth of the second Respondent on 20th December 1981 during the subsistences of the marriage between the Appellant and first Respondent.

The courts below have found that the oral evidence of P.W. 1 is totally unreliable and untrue. On the other hand the evidence of D.W. 1 was found to be both reliable and probable. Further it was found to be corroborated by circumstantial evidence in the case and was acted upon to find that the Appellant was fully aware of the fact that the first Respondent was pregnant even before marriage as a result of the sexual intercourse which he had with her prior to the marriage as spoken to by her. Further, the courts below have also found as a matter of fact he has had every opportunity to have sexual intercourse with her prior to the marriage and she became pregnant as a result of such intercourse.

The provision contained in Section 340 of the book on Mohamedan Law by Mulla (19th Edn.), identically similar to or the same as the provision contained in Section 112 of the Evidence Act. Of course, under the commentary to Section 340 of the book, the principle referred to by the courts below in the judgment under appeal has also been given separately under the heading "Presumption of legitimacy under the Mohamedan Law". The very fact that the provision contained in Section 340 of the book on Mohamedan Law by Mulla is identical with the provision contained in Section 112 of the Evidence Act would show that the provision regarding presumption of legitimacy now applicable to Muslims in India is the same provisions contained in Section 112 of the Evidence Act and the special rules of presumption applicable under Mohamedan Law are not applicable now.

Evidence Act, 1872 (Central Act 1 of 1872) Section 112 - Presumption regarding paternity--Burden of proof is heavy on the person who asserts non-access--Evidence of the mother requires corroboration as a rule of prudence.

Held:

Under Section 112 of the Evidence Act, burden of proving non-access is on the person who disputes the paternity. Though it is a negative aspect it is well settled that the person who is bound to prove non-access should prove the same by positive evidence. His own interested denial cannot be accepted as sufficient to discharge the burden of establishing access. The Appellant has not discharged satisfactorily the burden of proving that he had no access to the first Respondent. This is normally sufficient to draw the presumption of legitimacy available under Section 112 of the Evidence Act in this case and to hold that the second Respondent is the son of the Appellant.

The principle that uncorroborated evidence of the woman concerned in the matter of paternity of her child cannot be considered as a statutory requirement. It can only be accepted as a rule of prudence.

JUDGMENT

T.V. Ramakrishnan, J.

1. The paternity of the second Respondent (second Defendant) is in dispute in this appeal. The putative father, the Appellant filed the suit out of which the appeal arises for a declaration that he is not the father of the second Respondent and for a consequential injunction to restrain the Respondents from taking steps for getting maintenance from him for the second Respondent. First Respondent who was the wife of the Appellant was the first Defendant in the suit. Both the courts below found against the Appellant and have dismissed the suit concurrently.

2. In the plaint the Appellant admitted the fact of his marriage with the first Respondent on 11th June 1981 and also the fact of birth of the second Respondent on 22nd December 1981 while the marriage was subsisting. The Appellant has dissolved the marriage with the first Respondent by Talak on 27th December 1981. According to the Appellant the first Respondent was pregnant by six months even at the time of marriage and that fact was suppressed from him at the time of marriage. He came to know about it only later. It is his further case that he had no access or opportunity for sexual intercourse with the first Respondent prior to the marriage and as such second Respondent is not his son. In the circumstances, the Appellant has filed the suit with the prayers already indicated.

3. First Respondent on her behalf and on behalf of second Respondent, her minor son, denied specifically the claim of the Appellant that he was not aware of the fact that she was pregnant at the time of marriage. It was specifically asserted that the Appellant had sexual intercourse with her prior to the marriage and that she became pregnant as a result of such sexual intercourse. According to her the marriage was conducted mainly for the purpose of formalising the relationship they had even prior to the date of marriage. In the circumstances it was contended that the marriage is fully valid and the second Respondent is the son of the Appellant.

4. On the side of the Appellant, apart from producing Exts. A-1 to A-11, the Appellant alone was examined as P.W. 1 to establish the case set up in the plaint. First Respondent gave evidence as D.W. 1 and also caused the production of Exts. X-1 to X-4 documents.

5. On an elaborate consideration of the oral and documentary evidence the trial court totally disbelieved the case of the Appellant and believed the case of the first Respondent which resulted in the dismissal of the suit. The trail court specifically found that the evidence of P.W. 1 is totally unbelievable and untrue. On appeal the learned Judge confirmed the findings of the trail court and dismissed the appeal.

6. Arguing the appeal, the learned Counsel for the Appellant has raised the following contentions. The appellate court has clearly went wrong in applying the principles contained in Section 340 of the book on Mohamedan Law by Mulla to the case on hand and holding that the second Respondent is the son of the Appellant. The principle contained in Section 340 of the book on Mohamedan Law is to be treated as superseded by the provisions contained in Section112 of the Evidence Act and as such should not have been applied to the facts of the case. In the facts and circumstances of the case, the burden of proving non-access prior to the marriage has been satisfactorily discharged by the Appellant by examining himself as P.W. 1 and on such discharge of burden of proving non-access, it was up to the Respondents to prove by positive evidence that the Appellant had access to the first Respondent prior to the marriage. Except the interested testimony of the first Respondent no independent evidence is available on record to establish that the Appellant had access to the first Respondent prior to the marriage. The uncorroborated testimony of the first Respondent regarding access prior to the date of marriage should not have been accepted and acted upon by the courts below. No adverse inference should have been drawn against the Appellant from the fact that the marriage between himself and first Respondent was conducted without informing even near relations in a secret manner, since the marriage in question was the 3rd marriage of the Appellant and the second marriage of the first Respondent. The said circumstance ought to have been accepted as sufficient to explain the reason why the marriage was conducted without much publicity, and without informing even the close relatives. The dissolution of the marriage by Talak on 27th December 1981 is itself sufficient to disown the paternity of the second Respondent even without Talak in the form of Li'an. The courts below have not considered the significance and importance of Ext. A-3 letter and its implications on the respective contentions of the parties. The marriage between the Appellant and first Respondent was at a time when the first Respondent was having pregnancy and as such the marriage itself is invalid under Mohamedan Law. Lastly it was also contended that appreciation of the evidence and the findings of fact entered by the courts below are perverse and illegal and as such unsustainable in Law.

7. A little more facts may be necessary to appreciate properly the contentions raised by the parties in the appeal. The Appellant and first Respondent are residents of two villages lying not too far away in one and the same District. They were in the locality at all relevant times. The Appellant and the first Respondent were aged about 30 and 20 years respectively in 1981 and were known to each other even before their marriage on 11th June 1981. The Appellant had admittedly gone to the house of the first Respondent at least in connection with the marriage of the neice of the Appellant with the brother of the first Respondent which took place in 1976 or 1977. The said marriage was subsisting at the time of the trial of the suit. According to the Appellant he had never gone to the house of the first Respondent after the marriage of his neice. But according to the first Respondent the Appellant used to go to her house very frequently and used to meet and talk to hey and persuade her to have sexual intercourse with him since he was having no issues in the two marriages he had earlier. She had specifically stated that on a particular day when all other male members have gone out of the house, the Appellant had sexual intercourse with her from her room itself. The first Respondent had also married once earlier and was a divorcee at the relevant time. According to the Appellant he married the first Respondent at the instance of the brother of the first Respondent who had married his neice and that he has not informed even his mother and sister about the marrige even though he was living with them at the relevant time and they knew about the marriage only a week after the marriage and that too from some neighbours. The first Respondent has denied the said allegations and has stated that the marriage was one in which the near relations of both parties have participated though it was one conducted on a moderate basis without much publicity, mainly because the marriage itself was one conducted to formalise the sexual intimacy which they were having prior to their marriage on 11th June 1981. It has also come out in evidence that the second wife of the Appellant and her people were highly against the marriage of the Appellant with the first Respondent from the very beginning. After the marriage they were trying to dissolve the marriage by sending Talak letters written by themselves without the knowledge and consent of the Appellant as evidenced by Ext. X-1. It is also clear from Ext. X-2 letter dated 17th July 1981 admittedly written by P.W. 1 that he had not sent Ext. X-1 letter though it purports to be a letter written and signed by him for the purpose of divorcing the first Respondent and that Ext. X-1 is a creation of the relatives of his second wife and that he does not want to divorce the first Respondent. It is also in evidence that as per Ext. X-3, dated 17th August 1981 he has given his consent for. subjecting the first Respondent to a medical examination to ascertain whether she is pregnant with a view to remove the doubt felt by the mosque people and they told him after medical examination that the first Respondent is one and a half month pregnant and that their is nothing objectionable in the marital relationship in question. Thereafter also marriage continued and was dissolved by Talak only on 27th December 1981 after the birth of the second Respondent. The Appellant has a further case that after the delivery of the second Respondent from St. Sebastian's Hospital, Cherupuzha, the first Respondent's father has sent Ext. A-3 letter to him through the brother of the first Respondent informing him that the first Respondent has delivered prematurally a baby boy and requesting him not to create any confusion and promising him that all matters can be settled amicably. According to the Appellant Ext. A-3 is a letter deliberately written by the father or some other persons interested in the first Respondent to hide her illicit pregnancy and make the Appellant believe that the first Respondent has delivered prematurally and that she was not pregnant at the time of his marriage with her. This in short are the facts and circumstances with reference to which the case was considered by the courts below.

8. From the above analysis of the facts and circumstances of the case, it is clear that there is no dispute about the fact of marriage between the Appellant and the first Respondent on 11th June 1981 and the further fact of the birth of the second Respondent on 20th December 1981 during the subsistence of the marriage between the Appellant and first Respondent. The dispute between the parties is only about the correctness of the allegations of the Appellant that the fact of pregnancy of the first Respondent was suppressed from him at the time of marriage and that he had no access to the first Respondent prior to the marriage or at the time when the second Respondent could have begotten. First Respondent has totally denied the above allegations of the Appellant and has asserted that the Appellant had access to her and has had actual sexual intercourse even, prior to the marriage. She became pregnant out of such intercourse and the Appellant was fully aware of her pregnancy at the time of marriage. In fact the marriage was thought of just to formalise their otherwise close relationship. There cannot be much dispute about the fact that points which arose for consideration by the courts below out of the pleadings noted above are pure questions of fact bound to be decided by the courts below based upon an appreciation of the oral and documentary evidence in the case taking note of all other relevant facts and circumstances either admitted or proved in the case. Both parties to the suit have adduced evidence in support of their respective contentions. The courts below especially the trial court has elaborately discussed the evidence and the relevant facts and circumstances either admitted or proved in the case and have entered findings against the Appellant on both the points. Thus the courts below have found that the oral evidence of P.W. 1 is totally unreliable and untrue. On the other hand the evidence of D.W. 1 was found to be both reliable and probable. Further it was found to be corroborated by circumstantial evidence in the case and was acted upon to find that the Appellant was fully aware of the fact that the first Respondent was pregnant even before marriage as a result of the sexual intercourse which he had with her prior to the marriage as spoken to by her. Further, the courts below have also found as a matter of fact he has had every opportunity to have sexual intercourse with her prior to the marriage and she became pregnant as a result of such intercourse. These findings entered by the courts below are findings based upon the appreciation of the evidence in the case and cannot be considered as either perverse of based on no evidence. In these circumstances, there is no merit in the general contention of the learned Counsel for the Appellant that the findings of fact entered by the courts below are perverse and illegal and this Court should reappreciate the evidence in the case and enter fresh findings on all the disputed questions of fact.

9. I may now consider the other contentions raised by the learned Counsel for the Appellant and indicated by me earlier. It is true that both the courts below have while arriving at the conclusion that the Appellant is the father of the second Respondent, referred to and relied upon one of the principles of presumption of legitimacy under Mohamedan Law which is to the effect that "a child born after 6 months from the date of marriage is presumed to be legitimate, unless putative father disclaims the child by Li'an". Courts below have also referred to Section 340 of the book on Mohamedan Law by Mulla as the section which deals with the above principle. Reference to Section 340 of the book seems to be an obvious mistake.

The provision contained in Section 340 of the book on Mohamedan Law by Mulla (19th Edn.) is to the following effect;

Legitimacy: when Conclusively presumed,--The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, 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.

This provision is identically similar to or the same as the provision contained in Section 112 of the Evidence Act. Of course, under the commentary to Section 340 of the book, the principle referred to by the courts below in the judgments under appeal has also been given separately under the heading "Presumption of legitimacy under the Mohamedan Law". The very fact that the provision contained in Section 340 of the book on Mohamedan Law by Mulla is identical With the provision contained in Section 112 of the Evidence Act would show that the provision regarding presumption bf legitimacy now applicable to, Muslims in India is the same provisions contained in Section 112 of the Evidence Act and the special rules of presumption applicable under Mohamedan Law are not applicable now. Further, the High Court of Allahabad has actually held that Section 112 of the Evidence Act supersedes the Mohamedan Law of presumption of legitimacy in the decisions reported in Sibt Mohammad v. Md. Hameed MANU/UP/0128/1926 : A.I.R. 1926 All. 589 and Mt. Sampatia Bibi v. Mir Mahboob Ali A.I.R. 1936 Allahabad 528. In the said decisions it has been categorically held that the provisions in Section 112 of the Evidence Act would apply to all person and no exception is made in the case of Muslims. The Privy Council has also applied the provisions contained in Section 112. of the Evidence Act to draw the presumption of legitimacy in the case of muslims in the decision reported in Ismail Ahmed v. Momin BibiMANU/PR/0003/1940 : A.I.R. 1941 P.C. 11. Thus it can now be safely held that the special rules of presumption of legitimacy under the Mohamedan Law relied upon by the courts below in this case has been superseded by the provision in Section 112 of the Evidence Act and is not applicable to Muslims in India. Accordingly, the application of the rule of presumption of legitimacy under Mohamedan Law to the facts of the case on hand cannot be justified in law. However, this error committed by the courts below may hot have any effect on the ultimate decision reached by the courts below since the trial court has specifically Considered the case applying the requirements of Section 112 of the Evidence Act as well in paragraph 9 of the judgment and the appellate court has confirmed the said judgment in appeal in its entirety.

10. The contention that the marriage of the Appellant with the first Respondent is void since the first Respondent was pregnant at the time of marriage and that fact was deliberately suppressed from him, cannot be upheld. Both the courts below have not accepted the case of the Appellant that the fact of pregnancy was deliberately suppressed from him and that he was not aware of the pregnancy of the first Respondent at the time of marriage. These are factual findings on pure questions of fact and I do not find any justification for interfering with the said findings in this second Appeal. If that be so, the marriage between the Appellant and first Respondent cannot be held to be void on the ground of deliberate suppression of a material fact and that the consent obtained for marriage was not free.

11. Further, the marriage cannot also be held to be void on the ground that the first Respondent was pregnant at the time of marriage since the concurrent findings of the courts below is to the effect that the Appellant was really responsible for the pregnancy of the first Respondent. In the plaint there is not even an allegation that the first Respondent was leading an immoral life or that she was having illicit connection with any other person before her marriage with the Appellant. Of course, in the evidence, that too in cross-examination, P.W. 1 has made an attempt to establish that first Respondent became pregnant as a result of her connection with one Shaukathali, still of her Karanavan. Both the courts below have specifically considered the said case and disbelieved the evidence of the Appellant in that regard. In fact both the courts below taking note of the relationship existing between the Appellant and the first Respondent and taking note of the close familiarity and the opportunities they were having to come in contact with each other, have come to the conclusion that the first Respondent became pregnant as a result of sexual intercourse with the Appellant. According to the principles of Mahomedan Law, marriage of a Mahomedan male with a Mahomedan female pregnant by whoredom alone can be considered as illegal and as having no legal consequences among the Muslims following Hanafi Law see Amino v. Hassan Koya 1985 K.L.T. 596. In the light of the specific findings in this case to the effect that the Appellant was having opportunities for access or sexual intercourse with the first Respondent prior to the marriage and in the absence of any allegation that the first Respondent was leading an immoral life prior to her marriage with the Appellant, it cannot be held that the first Respondent was pregnant by whoredom. Hence the said contention fails and is rejected.

12. The most important question remaining to be considered in the appeal is as to whether the finding of the courts below that the Appellant was having access to the first Respondent is in the sense of having opportunities for intercourse with her prior to his marriage with her, is justifiable or not. In this connection the learned Counsel has contended that even though the burden of proof regarding non access under Section 112 of the Evidence Act is on the Appellant, he has satisfactorily discharged the same by denying the existence of such opportunities as P.W. 1 and it was then up to the first Respondent to have proved access by independent evidence. The first Respondent has failed to discharge such burden by adducing independent evidence. The uncorroborated testimony of the first Respondent cannot and should not have been accepted and acted upon to find that the Appellant had access to the first Respondent. In answer to the above contentions, the learned Counsel for the Respondents has submitted that the burden to prove non access is heavily on the Appellant and his denial by itself may not be sufficient to discharge the said burden. Both the courts below have chosen to reject the evidence of P.W. 1 as totally unreliable and untrue. The very, fact that the Appellant and first Respondent were living in the same District and were relatives known to each other closely even before their marriage would be sufficient to establish the fact that the Appellant was having opportunity to have access or intercourse with the first Respondent. In this connection it was pointed out that the Appellant himself has admitted that he had been to the house of the first Respondent in connection with the marriage of his niece with the brother of the first Respondent. In the facts and circumstances of the case, his denial cannot be accepted as sufficient to discharge the burden of proving non access. Evidence to establish non access should be clear and positive. Such evidence must clinchingly show that access or opportunity for intercourse was practically impossible during the relevant time.

13. Under Section 112 of the Evidence Act, which is admittedly the provision with reference to which the question has to be decided, burden of proving non access is on the person who disputes the paternity. Though it is a negative aspect it is well settled that the person who is bound to prove non access should prove the same by positive evidence. His own interested denial cannot be accepted as sufficient to discharge the burden of establishing access. This is especially so when, as in this case, parties are well known and related to each other and are living in the very same locality during all the relevant time. In this connection it is apposite to refer to the following observations of Poti, J. (as he then was) in the decision reported in Parameswaran Nair v. Janaki Amma MANU/KE/0021/1972 : A.I.R. 1972 Ker. 80:

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 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....

In the circumstances, I do not find any merit in the contention that the Appellant has not discharged satisfactorily the burden of proving that he had no access to the first Respondent. This is normally sufficient to draw the presumption of legitimacy available under Section 112 of the Evidence Act in this case and to hold that the second Respondent is the son of the Appellant.

14. However, in this case both the courts below have appreciated the oral evidence of both the Appellant and the first Respondent and has categorically found that while the evidence of P.W. 1 is totally unreliable and untrue, the evidence of the first Respondent can be safely relied upon to find that the Appellant had sexual intercourse with the first Respondent prior to the marriage. While coming to such a conclusion, both the courts below have relied upon various circumstances such as the existence of close relationship between the parties, opportunities to have close familiarity with each other, possibility of the Appellant meeting the first Respondent in her house and the conduct of the Appellant as reflected in Ext. X-2 letter admitted to have been sent by him as circumstances corroborating the evidence of D.W. 1. In the circumstances, the contention of the learned Counsel for the Appellant that the uncorroborated evidence of the first Respondent should not have been accepted as sufficient to find that the Appellant had sexual intercourse with her prior to the marriage cannot be accepted as justified. As pointed out by this Court in Parameswaran Nair v. Janaki Amma MANU/KE/0021/1972 : A.I.R. 1972 Ker. 80.

The principle that uncorroborated evidence of the woman concerned in the matter of paternity of her child cannot be considered as a statutory requirement. It can only be accepted as a rule of prudence. Again the observation of Poti, J. (as be then was) in Parameswaran Nair's caseMANU/KE/0021/1972 : A.I.R. 1972 Ker. 80 is relevant and can be extracted here usefully:

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 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....

After an elaborate discussion of the various aspects of the matter, the learned Judge has further observed:

...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 this case both the courts below have accepted and acted upon the evidence of the first Respondent as true and reliable to hold that the Appellant was having access to the first Respondent at the time when second Respondent could have begotten. As I have already found that concurrent findings of the courts below on the question of access at the relevant time does not call for any interference, the said contention also fails and is rejected.

15. Yet Anr. contention raised by the learned Counsel for the Appellant is based upon Ext. A-3 letter said to have been sent by the father of the first Respondent to the Appellant on the date on which the first Respondent has delivered the second Respondent. It has been pointed out that no objection was taken against the production and marking of Ext. A-3. As D.W. 1, the first Respondent has stated that the does not know anything about Ext. A-3 letter. It is a letter purported to have been written by the father of the first Respondent on 20th December 1981 from the hospital where the first Respondent has delivered the child. Courts below found that there is no reliable evidence to prove that it is a letter written by the father of the first Respondent. According to the Appellant it is a letter written by the father of the first Respondent and sent through his son who has married the niece of the Appellant. Both the courts below have chosen not to believe the case of the Appellant in this regard also. While reaching such a conclusion, the courts below have also taken note of the contents of the letter which runs counter to the specific and very consistent case of the first Respondent that she was pregnant even before the marriage on 11th June 1981 and that she has delivered a full grown baby. In the light of the said finding the courts below were, in my view, justified in not relying upon Ext. A-3 as a genuine letter written by the father of the first Respondent. Hence the contention based on Ext. A-3 also fails and is rejected.

16. I do not think that the inference drawn by the courts below from the fact that the marriage in question was conducted secretly is totally unjustifiable. As such on that ground no interference with the conclusions reached by the courts below is called for. Similarly, the contention that the Talak effected on 27th December 1981 is sufficient to disclaim the paternity of the second Respondent cannot also be accepted as valid. The effect of Talak is only to dissolve the, marriage and it has no effect on the paternity of the child born prior to the date of Talak. This is especially so in view of the fact that the principle of Mahomedan Law regarding legitimacy whereby a putative father was allowed to disclaim the paternity of a child born after six months of marriage by pronouncing Li'an itself stands superseded by the provisions contained in Section 112 of the Evidence Act. There is thus no merit in the said contention also.

In the result, I do not find any justification for interfering with the concurrent conclusions reached by the courts below on the questions in dispute between the parties on any of the points raised in the appeal. The appeal accordingly fails and it is dismissed with costs.

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