Judgment:
S. Padmanabhan, J.
1. Appeal is by plaintiffs 1 and 2. They are mother and minor son. Respondent is the defendant. I will be referring to them as wife, son and husband. After the marriage on 13-6-1966, husband left for Singapore on 23-8-1966. There he met with a serious accident causing extensive damage to the brain as well as other injuries and paralysis involving unconsciousness also for a few days. By treatment, he had only partial cure. For better treatment, he came to Trivandrum by flight on 7-7-1969. He was under treatment in the Medical College and Ayurveda College Hospitals, Trivandrum. Son was born on 31-1-1970, within 209 days from 7-7-1969, on which date alone the husband could have had marital intercourse with wife after 23-8-1966. These facts are not in dispute.
2. Wife says that on 7-7-1969 itself husband went and lived with her at Varkala till 14-7-1969 enjoying sex with her for these days and then only went for treatment to Trivandrum. Husband's case is that he came with knowledge of the adulterous life and pregnancy of the wife and he was physically incapable of sex also. He would contend that the wife never joined him in the airport or anywhere else and after coming over here, he was only at his sister's residence at Trivandrum except during the periods when he was in the hospitals. Son was full grown on birth is not a matter in serious dispute. Claim for maintenance was thus met by him. Paternity of child was disowned.
3. Husband sued the wife for judicial separation on grounds of adultery and desertion, which were denied. Those grounds were found against for want of proof and the petition was dismissed. Decision was confirmed by a Division Bench of this Court under Ext. A5. Main contention in the suit for maintenance was bar of res judicata on account Ext. A5 in denying paternity of son. Trial court decreed the suit. But the decision was reversed in appeal and the suit dismissed.
4. Section 40 of the Evidence Act deals with the relevency of judgments in personam, which operates as res judicata between parties and their previes on matters decided, whereas Section 41 deals with relevancy of judgments in rem which bind all men and not only parties and their previes. That is on account of the conclusiveness and it does not rest on the ground of res judicata. The four kinds of judgments in rem under Section 41 are those rendered in exercise of probate, matrimonial, and insolvency and admiralty jurisdictions. The relevancy and conclusiveness of proof under Section 41 is only of the fact of conferment or taking away or declaration of any legal character or to the entitlement of any specific thing, not against any specified person, but absolutely against the whole world. The judgment must be the final judgment of a competent court in exercise of the said jurisdiction. The facts constituting the reasons for the decision are not conclusive evidence. Ext. is relevant only for the purpose that the marital relation did not cease, but it continues.
5. Further, one of the essential conditions for the operation of the bar of res judicata is that the matter directly and substantially issue in the suit in which the bar is raised was directly and substantially in issue in the former suit also and heard and finally decided. The matter directly and substantially in issue in this suit is whether the husband is the father of the son and in deciding that issue whether the conclusive presumption of paternity under Section 112 of the Evidence Act on account of the subsistence of marriage is rebutted by proof of non-access during the period when the son could have been begotten. That was not an issue at all in Ext. A5.
There the issue was only whether judicial separation could be ordered on grounds of adultery or desertion. That was only for deciding whether judicial separation has to be ordered or not and not for deciding paternity which was foreign to the scope of enquiry there. What was decided there is only that judicial separation cannot be ordered and hence the decision is conclusive only on the point that relationship continued. A finding that adultery is not proved cannot bar the denial of paternity on proof of non-access. Let us hypothetically visualise the converse and think of a situation in which adultery was found and judicial separation ordered. Even when presumption of paternity will continue and it could be rebutted only on proof of non-access. For the purpose of that case, adultery was only taken as not proved. Even if the finding was that there was no adultery, if non-access is established, paternity could be disowned. Therefore, bar of res-judicata is not there. A finding that adultery is not proved or even that it was disproved and there was no adultery cannot foreclose a contention of non-access even if that finding may have a ratiocinative value.
6. The presumption under Section 112 of the Evidence Act is applicable not only during the subsistence of the marriage, but also if the child is born within 280 days of the dissolution provided the mother remains unmarried. The only way of rebutting that conclusive presumption is by proof of non-access. If non-access is conclusively established, even without proof of sexual connection with somebody else pregnancy could be presumed to be the result of such a connection which is not capable of easy knowledge and proof. The case in hand has to be considered in this legal background in the light of the presumption under Section 114 of the Evidence Act regarding existence of facts likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
7. The fact that the husband had a serious accident at Singapore resulting in brain damage and paralysis is not in dispute. It is proved by the evidence of the husband as DW 3 supported by Exts. B2 to B4 medical certificates from Singapore where he was under treatment. The evidence of DWs 2 and 3 show that the husband was taken in stretcher from the aeroplane and removed to the hospital. Sexual incapacity was spoken to by DW 3 and supported by DW1, who treated him in the Ayurveda College Hospital at Trivandrum. It is true that there is an element of artificiality in the evidence of DW1 when he said that he tested the sexual capacity of DW3 (husband) and found it impaired. That is not supported by Ext. B1. But regarding the general condition of the husband, his evidence is in tune which with DWs 2 and 3 Exts. B2 to 4.
8. It is clear that the husband was in seriously impaired health when he reached Trivandrum necessitating removal in stretcher and treatment in two hospitals for a pretty long time. There is absolutely no reason to disbelieve DWs 2 and 3 when they say that the husband has no occasion to be with the wife to enjoy sex. Evidently he was not in a fit condition to enjoy sex also. In support of the case that the husband lived with the wife and enjoyed sex, we have only the evidence of the wife was PW1. That is highly artificial and it is disproved by the evidence of DWs 2 and 3. Their evidence that the husband had knowledge of the sexual vagaries and pregnancy of the wife and hence he had no contact with her is probabilised by her own evidence. Admittedly, she never met the husband in the airport or in the hospital. Her evidence that she went to the hospital but was kept out by the sister-in-law appears to be artificial. With that there is the evidence that a full grown child was delivered without any medical care and attention within 209 days of the possible date of sexual connection, which itself is highly improbable. Such a delivery and the normal growth of the child may be legally possible, but not probable.
9. Calculated from the possible date of generating access for a matrimonial intercourse, which itself is next to impossibility, a full growth child was born within 209 days. The conduct of the husband and wife and the attendant circumstances establish beyond doubt that there was no possibility of sexual union between them resulting in pregnancy. Non-access is clearly established. Pregnancy must definitely have been from some other source for which a possibility was also spoken to by the husband. The word 'access' can be explained as an indicia of a opportunity for marital intercourse. The word only means no more than opportunity of intercourse. It must be shown that no such opportunity occurred down to a point of time near to the birth when the child could have been begotten, as to render the paternity impossible. Unless it is shown that the parties to the marriage had no 'generating access' even the fact that the woman was living in open adultery will not rebut the presumption of legitimacy. In this case, all these conditions are established and non-access is clear beyond doubt. Evidence of PW 1 to the contrary is not only improbable, but impossible also. Though for reasons different from those assigned by the appellate Judge I hold that the presumption of paternity is disproved by non-access. Liability to maintain the child is not there.
10. The wife has deserted the husband and she is not discharging her matrimonial obligations even at the time of adversity. She is a teacher and is having sufficient income to maintain herself. The evidence is that the husband became an invalid and dependant and he lost whatever the earned for his treatment and existence. The claim of the wife for maintenance is also not justified. What she claimed is only a token maintenance to establish her claim. Refusal of her claim is also justified.
Second appeal is dismissed, without costs.