Child born four months of marriage entitled to equal share in property: Kerala High Court

The woman subsequently moved the high court, which said, “Once it is found that the child is the legitimate daughter of the late man, she is entitled to an equal share in the properties along with the other Class I heirs,” the court observed.

The court emphasised that the law strongly favours the legitimacy of a child born during the subsistence of a valid marriage.

The bench added that even when the birth occurred within four months of the marriage, Section 112 (birth during marriage, conclusive proof of legitimacy) of the Evidence Act raises a conclusive presumption as to the legitimacy of the child, unless it is proved that the parties to the marriage had no access to each other at any time when the child could have been begotten.

“For the applicability of Section 112, it is not a prerequisite that the period of access should be confined to the post-marital period,” the court noted.

Decision

The court ordered that the trial court order be modified to the extent of partitioning properties into five equal shares and allotting one such share each to the children, widow and the mother of the late man.

“The trial court thus committed a manifest error in discarding the plaintiffs’ claim by holding that Section 112 of the Evidence Act could not be invoked merely because the child was conceived before the marriage,” the court added.

Background

The plea filed against the trial court’s order for the partition of the plaint schedule properties into four equal shares among the four people. It includes two children, the widow, and the mother of the late man.

However, the trial court excludes a child of the man, who was born within four months of their parents’ marriage, and that became the sole issue of controversy, whether the petitioner is also the child of the late man.

The properties originally belonged to the man, who died intestate in December 2012.

Arguments

Appearing for the petitioner, advocates R Sreehari, Sachin Vyas, and P B Krishnana argued that the woman and the late man were in a relationship even before their marriage, and that the child was conceived in the course of such a relationship.

Appearing for the respondents, advocate Ashok Kumar, Bindu Sreedhar, and Asif N argued that there was no occasion for the late man and the widow to have had access to each other before their marriage, particularly since it was an arranged marriage.

It was further asserted that, at the relevant time when the child could have been conceived, even the engagement between the parties had not taken place.