Child Born Within Four Months Of Marriage Entitled To Inheritance; Sec 112 of Evidence Act Raises Conclusive Presumption of Legitimacy: Kerala HC [Read Order]

Kerala: The Kerala High Court has held that a child born within four months of marriage is entitled to an equal share in her father’s property, ruling that Section 112 of the Indian Evidence Act raises a conclusive presumption of legitimacy. This presumption can be rebutted only by proving non-access between spouses at the time the child could have been conceived, and such access is not limited to the post-marital period.

The Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar delivered the judgment on December 19, 2025, while allowing an appeal filed by Sujatha Krishnan and her children, challenging a preliminary decree that had excluded the second plaintiff from partition of properties on the ground that she was born too soon after the marriage to be considered legitimate.

The case arose from a suit for partition of properties belonging to Krishnan, who died intestate on December 10, 2012. The first plaintiff is his widow, the first defendant is his mother, and plaintiffs 2, 3, and 4 are the children. The sole issue in controversy was whether the second plaintiff, born on May 12, 2001—within four months of the marriage solemnized on February 4, 2001—was the biological child of Krishnan.

The plaintiffs contended that although the second plaintiff was born within four months of marriage, she was nonetheless Krishnan’s biological child, as the first plaintiff and Krishnan were in a relationship even prior to their marriage and the child was conceived during the course of that relationship. They asserted that upon Krishnan’s death, the properties devolved equally upon all plaintiffs and the first defendant under the rules of intestate succession.

The defendants denied the paternity claim, contending that the second plaintiff was not Krishnan’s daughter and disputing any premarital relationship. They argued that it was an arranged marriage with no occasion for access prior to marriage and that even the engagement had not taken place when the child would have been conceived.

The trial court held that the plaintiffs failed to establish the paternity of the second plaintiff and directed partition only among plaintiffs 1, 3, and 4 and the first defendant, excluding the second plaintiff.

The High Court examined whether the evidence on record was sufficient to sustain the plaintiffs’ claim. The plaintiffs examined the first plaintiff’s father as PW-1, who deposed that at the time of marriage, the first plaintiff was already pregnant. He stated that when Krishnan’s parents learned of the pregnancy and opposed the marriage, Krishnan categorically asserted that he was responsible for the pregnancy and would proceed with the marriage, thereby silencing their objections.

PW-1 further deposed that from birth, Krishnan consistently acknowledged and treated the second plaintiff as his daughter, which found reflection in official records including her passport, pension payment order, and Employees’ Provident Fund passbook. Despite extensive cross-examination, nothing material was elicited to discredit his testimony. Significantly, there was no cross-examination regarding the statement attributed to Krishnan, although the alleged premarital relationship was vehemently disputed.

The trial court had discarded PW-1’s testimony on the ground that it was not direct evidence. The High Court held this approach to be erroneous and examined the evidentiary value of PW-1’s oral account under Sections 32(5) and 50 of the Indian Evidence Act, 1872.

Under Section 32 of the Evidence Act, written or verbal statements made by a deceased person regarding certain matters are themselves relevant facts. Statements relating to the existence of any relationship by blood, marriage, or adoption are relevant, provided the person making such statements had special means of knowledge and the statements were made before the dispute arose.

The Court held that since Krishnan was deceased, the verbal statements made by him—having special means of knowledge of his relationship by blood with the child at the time when the child was conceived, much prior to the commencement of the dispute—constituted a relevant fact under Section 32(5). When such statements were deposed to by PW-1, who directly heard them, they were admissible in evidence. The Court relied on Kolangarath Padmanabhan v. Kambarath Omana, which sets out the essential conditions for attracting Section 32(5).

The Court further held that such evidence is an exception to the hearsay rule and is substantive in nature. Accordingly, the trial court erred in discarding PW-1’s testimony on the ground that it was not direct evidence.

The High Court also found that PW-1’s evidence revealed another element lending credence to the plaintiffs’ case. He spoke not merely of Krishnan’s statements but also of his conduct reflecting his opinion regarding the second plaintiff’s paternity. This was relevant and admissible under Section 50 of the Evidence Act, which provides that when a court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct of a person having special means of knowledge is relevant.

When PW-1 described how Krishnan silenced his parents’ objections and thereafter treated the second plaintiff as his daughter, it revealed Krishnan’s opinion, as expressed through conduct, regarding the child’s paternity. The Court observed that Section 50 refers not merely to opinion but also to the belief or conviction manifested through conduct indicative of such relationship.

The Court relied on the Supreme Court’s decision in Dolgobinda Paricha v. Nimai Charan Misra, which clarified that conduct, as an external and perceptible fact, may be proved either by the person whose opinion is relevant or by another person acquainted with the conduct expressing such opinion.

The Court held that Krishnan’s opinion, as expressed through his conduct and spoken to by PW-1, was clearly relevant and carried significant probative value, enabling the Court to conclude that the second plaintiff was indeed Krishnan’s daughter.

The Court also considered documentary evidence. The passport of the second plaintiff showed that she was a minor at the time of issuance, and the plaintiffs submitted that a minor could obtain a passport only upon an application signed by both parents. The Pension Payment Order issued to Krishnan also listed the second plaintiff. Though these documents were initially marked tentatively as photocopies, the High Court permitted the production of originals under Order XLI Rule 27 of the Code of Civil Procedure.

Most significantly, the Court reiterated that the law leans strongly in favour of the legitimacy of a child born during the subsistence of a valid marriage. It was undisputed that the second plaintiff was born after the marriage between the first plaintiff and Krishnan. Even where the birth occurred within four months of marriage, Section 112 of the Evidence Act raises a conclusive presumption of legitimacy, unless it is proved that the parties had no access to each other at the time when the child could have been begotten.

The Court emphasized that Section 112 does not confine access to the post-marital period alone. The provision becomes inapplicable only upon proof of non-access “at the time when the child could have been begotten.” Reliance was placed on Kamti Devi v. Poshi Ram, wherein the Supreme Court held that the presumption may extend even to a child born on the very next day of a valid marriage.

The Court held that the burden of proving non-access squarely rests on the party seeking to rebut the statutory presumption. The defendants’ evidence—consisting solely of the oral testimony of the first defendant as DW-1—was insufficient to discharge this burden. DW-1 merely made a bald assertion of non-access, which stood contradicted by the plaintiffs’ affirmative evidence establishing access between the spouses.

The Court concluded that the trial court committed a manifest error in holding that Section 112 could not be invoked merely because the child was conceived prior to marriage. Once it was established that the second plaintiff was Krishnan’s legitimate daughter, she was entitled to an equal share in the property along with the other Class I heirs.

Allowing the appeal, the High Court modified the preliminary decree and directed partition of the plaint schedule properties by metes and bounds into five equal shares, allotting one share each to the plaintiffs and the first defendant. The judgment clarifies that the presumption of legitimacy under Section 112 extends to premarital access between spouses and that the conduct and statements of a deceased father, proved through competent witnesses, constitute admissible evidence of paternity under the Evidence Act.

Case Title: Sujatha Krishnan & Ors. v. Radha Mohandas & Ors.
[R.F.A. No. 290 of 2019]

[Read Order]