Kerala HC: The modern concept of access and non-access for drawing presumption of legitimacy of the child as per S 112 of Evidence Act

When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Sec. 112. All we intend to note now is that even in a case where the presumption under Sec. 112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence - direct, indirect, circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period.

45. Access cannot be decided in a vacuum. Access on the date when the child could have been begotten has to be ascertained. Science and technology now permits the courts to precisely ascertain the date on which the fertilization of the sperm and ovum could have taken place. It is perfectly permissible even in a case where the presumption under Sec. 112 is sought to be drawn for the court to consider all evidence to ascertain the date on which the child in question could have been begotten. The age of the foetus can be authentically ascertained today with the help of scientific inputs. It is not necessary any more to rely merely on the oral evidence of the mother (or any one else) about the date of the LMP to ascertain the gestational age of the foetus. The period/date on which the child was begotten can be authentically and specifically ascertained. We repeat that access or non-access has to be considered with specific reference to the time when the child could have been begotten. 

46. That takes us to the last contention. The larger question is raised as to what is "access". At a time when science and technology had not developed as to enable courts to ascertain scientifically (and not on the basis of oral evidence) whether the child was born on account of the sexual intercourse between a man and his wife, the expression "access" was used in Sec. 112 of the Evidence Act. "Access" in Sec. 112 as understood hitherto is certainly "the possibility of and the opportunity for sexual intercourse between the man and woman". No better and acceptable evidence on that aspect could be authentically secured in yester years and hence access in Sec. 112 was always understood to mean the opportunity for or the possibility of sexual intercourse between the spouses. But should the expression "access" be understood in such vague, general and non-specific terms any more, is a question which courts will have to consider seriously. By access what is really meant is the accessibility of the ovum for the sperm. That is the only way to understand the expression "access" in a modern knowledge society where authentic ascertainment as to whether sperm from a man had caused fertilization of the ovum of the woman is scientifically possible.

The D.N.A test result can certainly be accepted as evidence of access or non access of the man to the woman, relevant to the context. It is not necessary hence to squander the advantage of such authentic scientific expert evidence even while considering the play of Section 112 of the Evidence Act. It is possible in the light of the modern scientific developments to understand the expression "access" in Section 112 as possibility of access of the sperm to the ovum. 

50. We find ourselves faced with similar dilemma as Justice Ormrod in [(1966) 1 All ELR 356] cited by Sri C.S. Dias, the learned Amicus Curiae. We extract the same below:

When as I think in these days, it is possible to enable the courts to do justice on a footing of fact and not to do injustice on a basis of presumption, I should myself greatly hope that no difficulties will ever be put in the way of a child's blood being supplied for blood grouping. I know that it is a sad thing to bastardise a child, but there are graver wrongs; and this is a matter which I am sure all those concerned will approach with great caution, because there is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact. That is the first thing.

51. We do also feel that the first concern of any court must certainly be to avoid injustice being done on the basis of a legal presumption when justice can be done on the basis of fact. No court should consider itself a prisoner to the language of a statutory provision or precedents of a bygone era when interpretation consistent with the current legally cognizable inputs and realities can help the court to render justice, to the satisfaction of the judicial conscience. We are hence tempted not to consider ourselves prisoners to the interpretation of Section 112 which was accepted in the yester years and feel persuaded to understand the expression 'access' in a more meaningful, effective, vibrant and contextually relevant manner to enable the courts to do justice.

It is hence that we think that a realistic understanding of the expression 'access' would help courts to dispense better quality justice. Access, we agree, must be reckoned as the possibility/opportunity of the sperm to access the ovum and not merely physical proximity of the spouses or their mere opportunity to have sexual intercourse.If such access is contra indicated conclusively by the D.N.A test, that can certainly be reckoned as evidence of non access which will help the husband to walk out of the Padmavyuha of Section 112 through the only exit door of non access recognised under Section 112.

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

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Whether drawing inferences form established facts is a point of law?

As has been held by this Court, the issue of subletting can be established on the basis of legitimate inference drawn by a court. In P. John Chandy and Co. (P) Ltd. v. John P. Thomas MANU/SC/0382/2002 : (2002) 5 SCC 90, while dealing with a controversy under the rent legislation arising under the Kerala Buildings (Lease and Rent Control) Act, 1965, it has been ruled that drawing inference from the facts established is not purely a question of fact. In fact, it is always considered to be a point of law insofar as it relates to inferences to be drawn from finding of fact. We entirely agree with the aforesaid view. When inferences drawn do not clearly flow from facts and are not legally legitimate, any conclusion arrived at on that basis becomes absolutely legally fallible. Therefore, it cannot be said that the High Court has erred in exercise of its revisional jurisdiction by substituting the finding of fact which has been arrived at by the courts below. Therefore, we have no hesitation in holding that the High Court has not committed any illegality in its exercise of revisional jurisdiction under the obtaining facts and circumstances.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4189 of 2014 (Arising out of SLP (Civil) No. 29888 of 2010)

Decided On: 28.03.2014

S.F. Engineer Vs.  Metal Box India Ltd. and Anr.

Hon'ble Judges/Coram:

Anil R. Dave and Dipak Misra, JJ.

Citation: AIR 2014 SC 2189

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Whether court can do inquiry in to facts in execution proceeding in respect of decree or award?

 Thirdly, all the objections referred above ought to have been raised by the respondents before the Arbitrator or/and Additional District Judge under Section 34 of the Act but certainly none of them could be allowed to be raised in execution once the award became final and attained finality as decree of the Civil Court.

31. In other words, having regard to the nature of objections, it is clear that such objections were not capable of being tried in execution proceedings to challenge the award. It is for the reason that they were on facts and pertained to the merits of the controversy, which stood decided by the Arbitrator resulting in passing of an award. None of the objections were in relation to the jurisdiction of the Court affecting the root of the very passing of the decree.

If the executing Court had probed these objections then it would have travelled behind the 18 decree, which was not permissible in law. An inquiry into facts, which ought to have been done in a suit or in an appeal arising out of the suit or in proceedings under Section 34 of the Act, cannot be held in execution proceedings in relation to such award/decree.

SUPREME COURT OF INDIA

Punjab State Civil Supplies Corporation Ltd. & ANR. Vs. M/s. Atwal Rice & General Mills represented by its Partners

[Civil Appeal No.8943 of 2017 arising out of SLP (C) No.1552/2015]

Dated:11 July 2017

Abhay Manohar Sapre, J.

R. BANUMATHI] J

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Bombay HC: Party has to plead facts only,not evidence

I have considered the submissions of the learned Counsel as also

gone through the records. On perusal of the impugned Judge, the contention of

Shri J. E. Coelho Pereira, learned Senior Counsel that there is an admission by

non-traversal in the pleadings has not been examined by the learned Judge whilst

passing the impugned Judgment. This would have to be examined by the learned

Judge in conjunction with the other evidence adduced by the parties. Having failed

to do so, I find that the learned Judge has misconstrued the pleadings of the parties

to hold that the Appellant has failed to establish his right to the suit property. It is

well settled that a party has to only plead facts and not evidence. In the present

case, there is a specific averment by both the parties in the pleadings claiming that

they are in possession of the suit property. The evidence adduced by the

respective parties on that count cannot be brushed aside on a spacious ground that

these averments were not found in the pleadings of the parties. This aspect would

have to be examined in the context of the evidence and the pleadings of theparties. In such circumstances, I find that the learned Judge was not justified to

discard the evidence of Pw. 2, Pw.3, Dw.2, Dw.3 and Dw. 4 whilst coming to the

conclusion that the Appellant has failed to establish his right to the suit property.

Having regard to the facts and circumstances of the case and consideraring that

the learned Judge has not examined the matter in accordance with law, I find it

appropriate, in the interest of justice, to quash and set aside the impugned

Judgment passed by the Lower Appellate Court and direct the learned Judge to

decide the Appeal afresh after hearing the parties in accordance with law.

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 82 OF 2007

Pedro do Rosario Fernandes alias Pedro Antonio Miguel Vs  Mr. Wilfredo Xavier Jose Monteiro,

 Coram :- F. M. REIS, J

Date : 17thJanuary, 2014.

Citation: 2016(2) ALLMR844

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Whether relief granted by supreme court on special facts exercising power under Art. 142 amounts to precedent?

 One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Art. 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Art. 142. Be that as it may.

Supreme Court of India

Indian Bank vs Abs Marine Products Pvt. Ltd on 18 April, 2006

Bench: Dr. Ar. Lakshmanan, R. V. Raveendran

   Citation;(2006)5 SCC72

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Whether decision which centered round its own facts can be precedent in another case in which facts are different?

In P.G.I, of Medical Education and Research, Chandigarh v. Raj Kumar [(2001) 2 SCC 54], Baneriee,
J, on the other hand was of the opinion:
"The learned Counsel appearing for the respondents, however, placed strong reliance on a later decision
of this Court in PGI of M.E. and Research Chandigarh v. Vinod Krishan Sharma wherein this Court
directed payment of balance of 60% of the back wages to the respondent within a specified period of
time. It may well be noted that the decision in Soma case has been noticed by this Court in Vinod Sharma
case wherein this Court apropos the decision in Soma case observed:
"A mere look at the said judgment shows that it was rendered in the peculiar facts and circumstances of
the case. It is, therefore, obvious that the said decision which centered round its own facts cannot be a
precedent in the present case which is based on its own facts."
We also record our concurrence with the observations made therein.
Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts andcircumstances of each case and no straight-jacket formula can be evolved.

IN THE SUPREME COURT OF INDIA
Civil Appeal No. 7304 of 2005 [Arising out of S.L.P. (C) No. 14945 of 2004]
Decided On: 08.12.2005

U.P. State Brassware Corpn. Ltd. and Anr. Vs. Udai Narain Pandey

Hon'ble Judges: S.B. Sinha and P.K. Balasubramanyan, JJ.


Equivalent Citation: AIR2006SC586, 2006(1)AWC667(SC), [2006(108)FLR201], JT2005(10)SC344, (2006)ILLJ496SC,
(2006)1SCC479, 2006(2)SLJ327(SC)

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Whether plea of limitation can be decided as per principle of law divorced from facts?

Mr. Nariman, learned senior counsel appearing for the
appellant put heavy reliance on the decision in the case of
Ramesh B. Desai vs. Bipin Vadilal Mehta, (2006) 5 SCC
638, for the proposition that a plea of limitation cannot be
decided as an abstract principle of law divorced from facts
as in every case the starting point of limitation has to be
ascertained which is entirely a question of fact.
A plea of
limitation is a mixed question of law and fact.
In our
considered opinion, in the aforesaid decision this Court was
considering the provision of Order XIV Rule 2, CPC.
While
interpreting the provision of Order XIV Rule 2, this Court was
of the view that the issue on limitation, being a mixed
question of law and fact is to be decided along with other

issues as contemplated under Order XIV, Rule 2, CPC.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7732 of 2011
Foreshore Co-operative Housing Society Limited

versus
Praveen D.Desai (Dead) thr. Lrs. and others

Citation;2015(3) MHLJ 315 SC

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Whether court can investigate fact while deciding application under O 7 R 11 of CPC on ground of limitation?

Order 7 Rule 11(d) of CPC has limited application. It must be shown that the suit is barred under any law and such conclusion must be drawn from averments made in the plaint. No amount of evidence can be looked into. If the law by which the defendant claims rejection of the plaint on the ground of limitation such fact should be manifest from a reading of the plaint and does not call for any investigation into any fact at all. In order to find out whether the suit is barred by limitation under Article 58 or 59 of the limitation Act, 1963, the same has to be manifest from a reading of the plaint and no amount of evidence can be looked into.

Calcutta High Court

Sharmila Shetty & Anr vs Hemendra Barooah Benevolent And ... on 9 September, 2014

Author: Soumen Sen

Citation; AIR 2015(NOC)510 Cal

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Importance of facts of case in ascertaining ratio decidendi of case

Every settled principle of law has to be
rationally understood with reference to the facts of the case in
which such principle of law is stated. In other words, facts make
the law and this should always be kept in mind while applying the
principles stated and reasoning in support thereof.
A little
difference in the facts or additional facts may make a lot of
difference in the precedential value of a decision. (U.P. SEB vs

Pooran Chandra Pandey, (2007) (11) SCC 92) Ratio decidendi can
act as the binding or authoritative precedent and reliance placed
on mere general observations or casual expression of the Court is
not of much avail. (Girnar Traders vs State of Maharashtra,
(2007) (7) SCC 555).
CRIMINAL APPEAL NO. 315 OF 2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR
Rajeshwar s/o Hiraman Mohurle
(In Jail)
Vs
The State of Maharashtra



CORAM : SWATANTER KUMAR, C.J. AND
A.P. LAVANDE AND SMT. VASANTI A.
NAIK, JJ.

JUDGMENT PRONOUNCED ON : 10TH JUNE 2009
JUDGMENT (PER SWATANTER KUMAR, C.J.)
Citation;2009(5)AIR BOMR165

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Opinion versus fact in suit for defamation

The most misunderstood concept in defamation law is the distinction between fact and opinion and its relation to liability.  Most people (very smart ones included) mistakenly believe that only facts are actionable as defamation.  But in California opinions are actionable as well if they can ". . . reasonably be understood as declaring or implying actual facts capable of being proved true or false."

 This is the way it works:  a court will examine the totality of the circumstances starting with the alleged defamatory statement itself to determine whether the statement is factual or implies a fact that can be proven false.  If the answer is yes, the statement may be actionable assuming the other elements of a libel or slander claim are met.  If not, it’s over.

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