JUDGMENT Devinder Gupta, J.—The appeal was admitted for hearing on the following question of law : "Whether from the facts of the case, appellant No. 2 can be presumed to have begotten at a time when appellant No. 1 and respondent No. 1 had access to each other?” 2. The facts, in brief, are that a suit was filed on 18th April, 1983 by Brij Lai, plaintiff-respondent, claiming a decree for declaration that Ram Nath defendant-appellant is not his son. Consequential relief was also prayed by him restraining the defendants-appellants from proclaiming Ram Nath as his son. It was alleged by the plaintiff that his marriage with appellant Satya Devi was solemnised in the year 1962-63. After marriage, the relations remained cordial only for a couple of months but thereafter the wife deserted him and started living in her fathers house in village Morton, Illaqa Anantpur, Tehsil Sarkaghat District Mandi. The plaintiff belongs to village Sedhot in the same Illaqa, It k also alleged that a petition seek dissolution of marriage by divorce under section 13 of the Hindu Marriage Act was preferred by him, in which ex-parte decree of divorce was granted, which was later on set aside on wifes application and again after contest, decree of divorce was granted but ultimately when the appeal was preferred by the wife, the matter was patched-up in the High Court during the pendency of the appeal. The decree, as passed by the District Court was set aside and petition for divorce was dismissed. As such, reconciliation took place on 9th July, 1981, 3. It is also alleged that after July 1981, the wife resided in his house for 20/25 days and thereafter again she deserted him in the month of September 1981. Thereafter, she never visited the wifes house and even the wife did not visit or stayed with him, The plaintiff alleged that on 15th January, 1983, Rani Nath was born to Smt. Satya Devi. Where after, she approached Gram Panchayat Sedhot for getting the birth of the child recorded in the record of the Panchayat. The plaintiff opposed such a move of his wife, since according to him, Ram Nath born to Smt. Satya Devi on 15th January, 1983 was not his legitimate child. He had , no access to his wife at any time when the child might have been begotten. The plaintiff opposed such a move of his wife, since according to him, Ram Nath born to Smt. Satya Devi on 15th January, 1983 was not his legitimate child. He had , no access to his wife at any time when the child might have been begotten. He was serving in the IndoTibetian Border Police and was posted in Delhi. He came on leave during the year 1982 only twice, namely, from 23rd January, 1982 to 2nd February, 1982 and from 3rd June, 1982 to 27th July, 1982 and even during this period, he had no access to his wife and thus the decree prayed for was claimed by him. 4. The suit was contested by Smt, Satya Devi and claimed that Ram Nath was the legitimate child of the plaintiff, born to her during the subsistence of a valid marriage. Besides denying the other allegations, the wife claimed that the plaintiff used to come on leave and used to meet her at village Bahroo, where she was residing. Even the distance between village Sedhot and Morton was stated by her to be about 21cms. whereas the distance between Sedhot and Bahroo, according to her, was only 1/2 Km. It was claimed by her that the plaintiff had access to her and Ram Nath was begotten out of the loins of plaintiff. The court guardian contested the suit on behalf of Ram Nath, who also took up the similar stand, as was taken by the wife. 5. The trial Court dismissed the plaintiffs suit, holding that Ram * Nath is the legitimate son of the plaintiff. Feeling aggrieved, the plaintiff preferred an appeal. During the pendency of the appeal, an application under Order XLI, Rule 27 of the Code of Civil Procedure was moved by the plaintiff seeking to adduce additional evidence. Notice on this application was given to the appellants but the record of the lower appellate court discloses that no orders were passed on the same and it remained pending. The lower appellate court proceeded to allow the appeal and set aside the judgment and decree passed by the trial Court and decreed the plaintiffs suit holding that the plaintiff had no access during the relevant time when Ram Nath might have been begotten. The lower appellate court proceeded to allow the appeal and set aside the judgment and decree passed by the trial Court and decreed the plaintiffs suit holding that the plaintiff had no access during the relevant time when Ram Nath might have been begotten. It was also held that Ram Nath cannot be said to be the plaintiffs child, since the plaintiff had been serving in the I. T. B, P. and that he had no access to Smt. Satya Devi after September 1981 and thus it was concluded that Ram Nath is not born to Satya Devi from the loins of the plaintiff. It is this judgment and decree, which is under challenge in this appeal. I have heard the learned Counsel for the parties and also gone through the record, 6. Learned Counsel for the appellants have vehemently contended that the lower appellate Court lost sight of the provisions of section 112 of the Evidence Act. There is a presumption available in law, which remained unrebutted, since the plaintiff had failed to lead any evidence worth the name that the parties to the marriage had no access to each other at the time when Ram Nath could have been begotten. Learned Counsel for the plaintiff has tried to support the judgment and decree passed by the lower appellate Court. 7. At the very outset, learned Counsel for the appellants has conceded that the application moved by the plaintiff-respondent, which remained undecided by the lower appellate Court be allowed and that he also dispenses With the formal proof of the documents sought to be produced on record. In view of the statement of the learned Counsel for the appellants, and even otherwise also, in the facts and circumstances of the case, I consider it to b? a fit case for allowing the application of the plaintiff-respondent, which had been filed under Order XLI, Rule 27 of the Code of Civil Procedure, on 11th December, 1986. It is also otherwise necessary aod considered fit for the effective decision of the rights of the parties. 8. The application accordingly is allowed. The document sought to be produced on record by the respondent are to be used against the appellants, who are vitally affected. It is also otherwise necessary aod considered fit for the effective decision of the rights of the parties. 8. The application accordingly is allowed. The document sought to be produced on record by the respondent are to be used against the appellants, who are vitally affected. Learned Counsel for the appellants, however, states that he dispenses with the formal proof of the documents and states that he has no objection in case the same are taken in evidence. The documents, namely, copies of the leave certificate of respondent and a certificate issued by the Medical Officer Incharge, Referral Hospital. Sarkaghat, are thus ordered to be taken on record as Exs. PX, PY and PZ and to be read in evidence. 9. The lower appellate Court came to the conclusions, arrived at by it, by taking into consideration the fact that the wife did not reside with the husband after September 1981 and that the husband remained away at the place of his posting and came on leave only during such period from which it is not possible to conclude that the appellant might have been conceived during that period, even if it be held that the plaintiff had access to his wife. The court further held that assuming that the plaintiff had access from 3rd June, 1982 to 24th July, 198 , even in that case, the appellant cannot be said to be born out of the loins of the plaintiff, since the birth took place within 220 days. According to the lower appellate Court, normal delivery takes place after completion of 280 days and it was not the case of the wife that premature delivery had taken place. Thus, it was held that since the birth took place within 240 days from that date by which the plaintiff might have had access to his wife, the appellant cannot be said to be the legitimate child of the plaintiff. The lower appellate Court also made reference to a decision of the Supreme Court in Smt. Dukhtar Jahan v. Mohammed Farooq, AIR 1987 SC 1049. 10. The lower appellate Court also made reference to a decision of the Supreme Court in Smt. Dukhtar Jahan v. Mohammed Farooq, AIR 1987 SC 1049. 10. The lower appellate Court, in fact, totally lost sight of the provisions of section 112 of the Evidence Act, which says that when any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred eighty days after its dissolution, it will be conclusive proof that he is the legitimate son of that man, unless, it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Section 112 thus refers to the point of time of birth as the deciding factor and not the time of conception. The time of conception becomes relevant only to see whether the husband had no access to the mother of the child. Birth during the continuance of marriage is the conclusive proof of legitimacy unless non-access at the time when the child could have been begotten is proved. It is an undisputed fact that Ram Nath was born to Smt. Satya Devi during the continuance of her marriage with the plaintiff. Thus in view of section 112, there is a conclusive proof of legitimacy, subject to the proof of non-access that the plaintiff had no access to Smt. Satya Devi at any time when the appellant could have been begotten. The plaintiff admits having come on leave from 23rd January, 1982 to 2nd February, 1982 and from 3rd June, 1982 to 24th July, 1982. Admittedly, he came to the village and stayed in his house. The petition for divorce had been dismissed, in view of reconciliation, which took place amongst husband and wife. They admittedly lived together thereafter for sometime. The mere fact that both of them had thereafter been residing separately in close proximity at a distance, which according to the plaintiff is about 5 Kms. but according to the wife either 1/2 Km. or Kms. 2 will, be insufficient to prove non-access. Non-access had to be proved by the plaintiff like any other physical fact and could have been proved by direct or substantial evidence of unambiguous character, which has not been done in this case. but according to the wife either 1/2 Km. or Kms. 2 will, be insufficient to prove non-access. Non-access had to be proved by the plaintiff like any other physical fact and could have been proved by direct or substantial evidence of unambiguous character, which has not been done in this case. In the instant case, both the Courts below have concurrently found that the plaintiff had an occasion to have an easy access to his wife on both the occasions, when he admittedly came to the village on leave, namely, 23rd January, 1982 to 2nd February, 1982 and 3rd June, 1982 to 24th July, 1982. There is neither any material on record, nor has been brought to my notice from which it may be possible even to infer that the husband had no occasion to have an access to his wife. !!• The lower appellate Court assumed that despite the fact that the plaintiff had access to his wife, during the second spell of his leave, it is not possible to record a finding that the child is the legitimate child, since the birth took place in about seven months thereafter These reasonings of the lower appellate court are also not capable of acceptance, for the reasons, which are now being noticed. 12. The Supreme Court in Dukhtar Jahans case (supra) took notice of the Combined Text Book of Obstetrics and Gynaecology by Sir Gugald Baird 7th Edition at page 162 in coming to the conclusion that giving birth to a viable child after 28 weeks duration of pregnancy is not biologically an improbable or impossible event. The following passage was quoted from the aforesaid text book by the Supreme Court: "In the case of Clark y Clark, (1939)2 All ER 59 an extremely small baby, born alive 174 days after last possible date when intercourse with the husband could have taken place, and which survived, was held to be legitimate. While it is most unusual for babies of this weight or gestation period to survive it does occasionally happen." In Dukhtar Jahans case (supra), birth of a child took place in about seven months time from the date of the marriage and the child was claimed to be fully grown at the time of birth. While it is most unusual for babies of this weight or gestation period to survive it does occasionally happen." In Dukhtar Jahans case (supra), birth of a child took place in about seven months time from the date of the marriage and the child was claimed to be fully grown at the time of birth. Invoking the aid of section 112 of the Evidence Act and the aforementioned quoted portion from the Combined Text book of Obstertrics and Gynaecology, it was held that the child was the legitimate child of the parties to the marriage. In the said case, the case of the parties was that the child was not born prematurely, 13. In the instant case, there is an additional factor in favour of the appellant. The plaintiff himself has produce on record certificate Ex. PZ, issued by the Medical Officer Incharge of the Referral Hospital, Sarkaghat, certifying that Satya Devi, defendant-appellant had on 15th January, 1983 delivered a premature male child. The exact period, if taken when the plaintiff will be deemed to have had an access to his wife would work out to 226 days, namely, 7-1/2 months. 14. In Rangaswamy and others v. Smt. Nagamma, AIR 1973 Mys 178, it was held, on reference having been made to Modis Medical Jurisprudence and Toxicology 14th Edition that ordinarily a period of 10 days 9 months, after the date of last menstruation is taken as a period of gestation ol a normal baby, but on account of existence of certain individual factors, woman give birth to children some times earlier than 280 days. In the said case, birth of a child on 240th day, after sexual intercourse, was held to be not unnatural. 15. In Modis Medical Jurisprudence and Toxicology by N. J. Modi, Twentieth Edition, at page 328, the author has recorded instances that children born at or after 210 days or 7 calender months of uterine life are viable, i. e. are born alive and are capable of being reared. 16. 15. In Modis Medical Jurisprudence and Toxicology by N. J. Modi, Twentieth Edition, at page 328, the author has recorded instances that children born at or after 210 days or 7 calender months of uterine life are viable, i. e. are born alive and are capable of being reared. 16. The lower appellate Court did not correctly apply the ratio of the judgment in Dukhtar Jahans case {supra) to the facts of the instant case, where admittedly the plaintiff have had an occasion to have access to his wife, atleast between 3rd June, 1982 to 24th July, 1982 and thus the birth taking place on 226th day from the first day on which he could have an access to his wife has to be held to be valid one and child born to be the legitimate one and it has to be held that the presumption attached to the legitimacy has not been successfully rebutted by the plaintiff. 17. In view of the above observations, questions of law formulated deserves to be answered in the affirmative and the appeal deserves to be allowed by setting aside the judgment and decree of the lower appellate Court. 18. Resultantly, the appeal is allowed. The judgment and decree passed by the lower appellate Court is quashed and set aside and that of the trial Court is restored. The respondent will bear the costs of the appellants in this appeal. Appeal allowed.-