Conclusive presumption under Indian Evidence Act protects legitimacy, modifies partition decree favoring second plaintiff.
In a significant judgment, the Kerala High Court has upheld the legitimacy of a child born within the subsistence of a marriage, setting a precedent on the applicability of Section 112 of the Indian Evidence Act, 1872. The Division Bench, comprising Mr. Sathish Ninan and Mr. P. Krishna Kumar, delivered its verdict on December 19, 2025, modifying a previous preliminary decree that excluded the second plaintiff from inheriting a share of the property in a partition suit.
The case revolved around the legitimacy of the second plaintiff, born within four months of the marriage between her mother (the first plaintiff) and Krishnan, who died intestate. The trial court had initially excluded the second plaintiff from the division of Krishnan’s properties, citing insufficient evidence to establish her paternity.
The High Court, however, emphasized the conclusive presumption of legitimacy under Section 112 of the Indian Evidence Act, unless non-access between the spouses is proven. The court found that the defendants failed to rebut this presumption, as they could not establish non-access at the time the child could have been conceived. The court stated that the law strongly favors the legitimacy of a child born during a valid marriage.
Further, the court examined oral evidence provided by the first plaintiff’s father, who testified to a pre-marital relationship between the first plaintiff and Krishnan. This testimony, supported by documentary evidence such as the passport and pension documents acknowledging the second plaintiff as Krishnan’s daughter, was deemed admissible under Sections 32(5) and 50 of the Indian Evidence Act.
The court also noted that Krishnan’s conduct, as described by the witness, demonstrated his acknowledgment of the second plaintiff as his daughter, thereby reinforcing her claim to a share in the property. The High Court criticized the trial court for discarding this evidence, highlighting its probative value in establishing paternity.
In conclusion, the High Court allowed the appeal, modifying the preliminary decree to include the second plaintiff as an equal heir. The properties in question are to be divided into five equal shares among the plaintiffs and the first defendant, affirming the second plaintiff’s right to inherit as a legitimate child.
This judgment underscores the importance of statutory presumptions in protecting the rights of children born within marriage and clarifies the evidentiary standards required to challenge such presumptions.
Bottom Line:
Legitimacy of a child born within the subsistence of marriage cannot be questioned unless non-access between spouses is proved. Conclusive presumption under Section 112 of the Indian Evidence Act, 1872 applies in favor of legitimacy of the child.
Statutory provision(s): Section 112, Indian Evidence Act, 1872; Sections 32(5) and 50, Indian Evidence Act, 1872.
Sujatha Krishnan v. Radha Mohandas, (Kerala)(DB) : Law Finder Doc Id # 2830187
