Showing posts with label article 44 of constitution. Show all posts
Showing posts with label article 44 of constitution. Show all posts

Sunday, 16 August 2020

Kerala HC: Court can not draw presumption of legitimacy of a child under Sec. 112 of Evidence Act unless the marriage of his parents is declared valid

It is fundamental and axiomatic that valid marriage must be proved before the presumption under Sec. 112 can be invoked. Proof of valid marriage is sine qua non for invocation of the presumption under Sec. 112. Whatever the period of their cohabitation, however loyal and committed the partners may be to each other and however convincing the evidence of their faithful cohabitation may be, the presumption under Sec. 112 cannot be invoked or drawn unless solemnization of valid marriage is proved. Proof of valid marriage is the bedrock on which the presumption under Sec. 112 is built.

32. Such a presumption cannot obviously have any role or play before the validity of the marriage is established. To establish the validity of such a marriage, the presumption under Sec. 112 cannot obviously be invoked. In a case like the instant one where the validity of the marriage is assailed on the ground that the wife was pregnant through another on the date of marriage, this presumption cannot have any play at all. It would be a classic instance of putting the cart before the horse, if this presumption were to be invoked for ascertaining the validity of the marriage itself. We have, in these circumstances, no hesitation to agree with the learned Counsel for the appellant that the presumption under Sec. 112 cannot be invoked in a case where the very validity of the marriage is in question. Only after the validity of the marriage is considered and decided, the presumption under Sec. 112 can be invoked. To decide whether the marriage is valid or not, the presumption under Sec. 112 cannot obviously be invoked.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal Nos. 75 of 2008 & 31 of 2010

Decided On: 13.04.2012

 Rajesh Francis  Vs.  Preethi Roslin

Hon'ble Judges/Coram:
 Mr. Justice R. Basant &Mr. Justice K. Surendra Mohan

Citation: MANU/KE/0523/2012,2012 SCCONLINE Ker 5356
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