Presumption of legitimacy under evidence law can be rebutted only by strong proof of non-access, not mere probabilities.

A child born during a valid subsisting marriage is presumed legitimate under Section 112 of the Indian Evidence Act, and that presumption can be displaced only by strong proof of non-access showing that conception by the husband was not possible. The required standard is higher than ordinary preponderance of probabilities, though it is not proof beyond reasonable doubt. The first appellate court's finding that the husband had no access to the wife was based on appreciation of evidence and did not raise a substantial question of law, so interference in second appeal was not warranted. The presumption of legitimacy was therefore treated as rebutted on the facts.

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Issues: (i) What is the standard of proof required for a husband to rebut the conclusive presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872 by proving non-access; (ii) whether the finding that the husband had no access to the wife and the child could not have been begotten by him could be interfered with in second appeal.

Issue (i): What is the standard of proof required for a husband to rebut the conclusive presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872 by proving non-access

Analysis: Section 112 creates a conclusive presumption that a child born during a valid subsisting marriage is legitimate, unless it is shown that the spouses had no access to each other at the relevant time. The expression non-access signifies absence of opportunity for marital intercourse, and the burden lies on the husband who seeks to displace the presumption. The required proof cannot be equated either with proof beyond reasonable doubt, which belongs to criminal jurisprudence, or with a bare balance of probabilities, which would be too light having regard to the policy against bastardising a child. The appropriate standard is a degree of proof stronger than ordinary preponderance of probabilities and sufficient to show that there was no possibility of the child being conceived by the husband.

Conclusion: The presumption under Section 112 can be rebutted only by strong proof of non-access, and not by a mere balance of probabilities.

Issue (ii): Whether the finding that the husband had no access to the wife and the child could not have been begotten by him could be interfered with in second appeal

Analysis: The first appellate court, as the final fact-finding court, evaluated the evidence and returned a finding that the husband had no access to the wife during the relevant period. That finding was based on appreciation of evidence and did not give rise to any substantial question of law. In such circumstances, interference in second appeal under Section 100 of the Code of Civil Procedure, 1908 was not warranted.

Conclusion: The finding on non-access was not open to interference in second appeal.

Final Conclusion: The appeal failed because the presumption of legitimacy was held to have been rebutted on the facts, and the concurrent legal position did not justify interference with the decree.

Ratio Decidendi: A child born during a valid subsisting marriage is presumed legitimate under Section 112 of the Indian Evidence Act, 1872, and the presumption can be displaced only by strong proof of non-access showing that conception by the husband was not possible.

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