JUDGMENT : S.C. Mohapatra, J. - Deiendant No. 1 is appellant in a suit against a preliminary decree for partition. 2. Parties are related to each other according to the following genealogy : Jogeswar | ----------------------------------------------------------- | | | | Narahari Ramachandra Udayanarayan Karunakar | | | Sundarmohan | ------------- | | | | ----------------- | Debendra Gadadhar | | | ' Budha (D. 5) Kanduru Damodar | (D.4) (D. 2) (D. 3) | --------------------------------------------- | | | | | Bipin Padmalochan Khiramani Pankamani Laxmi D. 1 Pradyumna D.6 D.7 D.8 Saraswati (P.1) Subhash (P. 2) 3. Case of plaintiff is that as widow and son of Padmalochan, they are the successors to the share of Padmalochan and accordingly pray for partition. Case of defendant No. 1 who filed a separate written statement and contested the suit is that although plaintiff No. 1 married his brother Padmalochan, such marriage was before plaintiff No. 1 attained puberty and the spouses did not lead a conjugal life.. After such marriage, plaintiff No. 1 was always staying in her father's house. She was never brought to the matrimonial house either by Pradyumna or other members of the family. His brother Pradyumna had no access to plaintiff No. 1 after she attained puberty for birth of the son plaintiff No. 2 and as such he is not son of Pradyumna. Other defendants have filed separate written statement with which we are not much concerned in this case. 4. Considering evidence on record trial Court came to the conclusion that plaintiff No. 1 is married to Pradyumna and plaintiff No. 2 is their son. On that basis, preliminary decree having been passed, this appeal has been filed. 5. Main dispute in this appeal is legitimacy of plaintiff No. 2 since there is no dispute that plaintiff No. 2 was born to plaintiff No. 1 during life time of Pradyumna. Section 112 of the Evidence Act provides that any person born during continuance of a valid marriage between his mother and another man, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. In this case marriage between Pradyumna and plaintiff No. 1 was in or about the year 1957 and Pradyumna died in the year 1969. Between 1957 and 1969 plaintiff No. 2 was born in or about the year 1962. If no other evidence, is available, conclusive proof is that plaintiff No. 2 is son of Pradyumna and plaintiff No. 1. 6. Since fatherhood is the conclusive proof and exception is non-access between husband and wife during that period, heavy onus lies on him who challenges the legitimacy. To dicharge this onus, defendant No. 1 asserted that as per custom in a child marriage, the girl is brought to her matrimonial home after the marriage caremony and then left in the parental home after seven days to come back to the matrimonial home after attaining puberty. Accordingly, plaintiff No. 1 who did not attain puberty was left in her paternal home never to come back to the matrimonial home of her husband. Even if the said story is accepted, it would not lead to the conclusion that husband and wife had no access. Section 112 does not require that the access to each other would be in matrimonial home only, though the same is ussal in our society. In this case, parental home of plaintiff No. 1 is hardly at a distance of two to three miles from the matrimonial home. In absence of better materials, it cannot be said on the materials available that plaintiff No. 1 had no access to her husband remaining two to three miles away from each other even if case of defendant No. 1 is accepted that she did not come back to the matrimonial home after attaining puberty. If the story of defendant No. 1 would have been true, birth of illegitimate child by a married woman having no access to her husband would have created uproar in their society. Since it would have been a stigma on both the families, they would not have become silent for such a long period. There is no acceptable evidence in this regard. Conduct of defendant No. I remaining silent for all the period, makes the story made out by defendant No. 1 unbelievable. 7. In this context if case of plaintiffs is examined, it becomes believable. Their case is that plaintiff No. 1 resided in the matrimonial home where plaintiff No. 2 was born. There is no acceptable evidence in this regard. Conduct of defendant No. I remaining silent for all the period, makes the story made out by defendant No. 1 unbelievable. 7. In this context if case of plaintiffs is examined, it becomes believable. Their case is that plaintiff No. 1 resided in the matrimonial home where plaintiff No. 2 was born. On death of husband, plaintiff No. 1 with the child was driven out of the family. Defendant No. 3 one of the brothers of Pradyumna supports case of plaintiffs. When legitimacy of a man is questioned, he who supports illegitimacy is to prove the same because apart from Section 112 of the Evidence Act. normal rule is legitimacy and illegitimacy is exception. 8. From the aforesaid discussion and for the reasons recorded by trial Court which is acceptable, I am satisfied that plaintiff No. 2 is son of Pradyumna. 9. If some precedents are examined, their approach is justified. In Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana. In has been held that absence of access depends upon absence of opportunity for marital intercourse. Presumption of legitimacy being highly favoured by law, prooof of non-access must be clear and satisfactory. In Ammathayee Ammal and Another Vs. Kumaresan and Others, wife was residing about a furlong away from her husband's house. Wife in her deposition stated that she was residing with her husband and the child is her husband's son. Taking the circumstances and evidence of mother into consideration, it was held that rebuttal evidence is not sufficient to proovenon access. In Perumal Nadar (Dead) by Lrs. Vs. Ponnuswami both the spouse's were residing in the same village separately long before birth of the child. It was was held that legitimacy of the child would not be disbelieved unless husband is able to prove non-access. 10. Since main ground of challenge by defendant No. 1 fails and it is found that plaintiff No. 2 is son of Pradyumna, plaintiffs are entitled to a share in the family property. 11. In result, there is no merit in this appeal which is accordingly, dismissed with costs. Final Result : Dismissed