AIR 1982 ALLAHABAD 335 ::(1982) All WC 564

Allahabad High Court

Hon'ble Judge(s): K. P. Singh , J

Evidence Act (1 of 1872) , S.112— Legitimacy of child - Amongst Hindus of Eastern U.P. married couple do not have access to each other before Bidai or Gauna - Child born before Gauna cannot be presumed to be legitimate unless parties are shown to have had access before marriage or Gauna. If a child is born during the continuance of a valid marriage, there is a conclusive presumption that the child is the legitimate issue of the couple but if it is shown that the couple had no access to each other at a time when the child could be begotten the legitimacy of the child cannot be presumed. Amongst the Hindus in eastern U.P. when no Bidai takes place at the time of marriage and the girl remains with the parents for Gauna ceremony, the parties to the marriage have no access to each other as contemplated by the word "access" in S.112 unless there is evidence to the contrary. Therefore, a child born before Gauna cannot be presumed to be the legitimate child of the man to whom the child's mother was married unless it is shown that the parties to the marriage had access to each other before marriage or Gauna. AIR 1927 Mad 361, AIR 1930 Mad 194, AIR 1937 Lah 266, AIR 1954 SC 176 and AIR 1971 SC 2352; Rel. on: AIR 1942 Oudh 143, Dist.(Para 5 7 8) .....