In a second appeal regarding paternity and age (SPC) (pending suit filing). The court upheld the lower appellate court's finding that the appellant failed to prove non-access to the mother, dismissing the appeal against the birth registration order.
Second Appeal rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO.118/2004
Shri Manuel Francisco da Costa major of age, married, businessman, resident of House No.390, Near Railway Station, Curchorem, Goa. ........ Appellant. V/s. 1. Smt. Valdemira Senhorina do Rosario Noronha alias Mira D'Costa major of age, resident of House No.43, St. Joaquim Road, Borda, Margao, Goa. 2. Miss Linda Presca da Costa, Spinster, resident of House No.43, St. Joaquim Raod, Borda, Margao, Goa. ........ Respondents.
Mr. A.F. Diniz, Advocate for the appellant.
CORAM : A.P. LAVANDE, J.
DATE : 13 th April, 2005 P.C.
By this second appeal, the appellant challenges Judgment, Order and Decree dated 25.9.2004, passed by IIIrd Addl. District Judge, Margao, Goa, dismissing the Regular Civil Appeal No.104/2000 /III, filed
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by the appellant against the Judgment, Order and Decree dated 27.4.2000, passed by the IInd Addl. Civil Judge, Sr. Division, Margao in Special Civil Suit No.229/97 /II.
On the basis of the pleadings, the trial Court framed the following issues :
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absence of any such evidence, the question of invoking presumption under Section 112 does not arise. According to the learned Counsel, the lower appellate Court has erred in placing reliance on the birth certificate of defendant No.2 which has been produced by defendant No.1. According to the learned Counsel, admission by defendant No.1 herself in Special Civil Suit No. 37/89 clearly establishes that there was only one issue and that defendant No.2 was not born to her. According to the learned Counsel, even in the second suit bearing Special Civil Suit No.21/91, the defendant No.1 did not mention about the birth of defendant No.2. According to Mr. Diniz, the lower appellate Court being final Court on question of facts, has failed to consider all the material evidence on the record and, therefore, the appeal has to be admitted on the substantial questions of law formulated by him in the Memo of Appeal.
Counsel. I have perused the Judgments passed by both the Courts below. The lower appellate Court while dismissing the appeal, has primarily relied upon Section 112 of the Evidence Act and relying upon the said Section, has held that the plaintiff had failed to discharge the burden placed on him by leading evidence that he had no access to defendant No.1 during the relevant time. At this stage, it is pertinent to note that even in the plaint filed by the plaintiff, the date, month and the
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year in which the defendant left the plaintiff and went to Bombay has not been mentioned. This was important in view of the fact that the burden of proving non- access of the plaintiff to defendant No.1 was on the plaintiff and, in the absence of any such pleadings in the plaint, the finding given by the lower appellate Court that the plaintiff had failed to prove the non- access cannot be faulted. The lower appellate Court has considered the other oral evidence led by the parties as well as the documentary evidence by way of birth certificate (Exhibit DW.1/A) of defendant No.2 which was produced which shows that defendant No.2 was born on 10.8.1976. According to the lower appellate Court, the said birth certificate clearly shows the plaintiff as the father and defendant No.1 as the mother. It is pertinent to note that the birth was not registered after the filing of the suit. The fact that the birth was registered in the year 1976 itself clearly proves that defendant No.1 is the mother of defendant No.2 and the plaintiff is the father of defendant No.2. By no stretch of imagination it can be accepted that in the year 1976 defendant No.1 registered the birth of an orphan child showing the plaintiff and defendant No.1 as father and mother respectively. As stated above, the plaintiff has not averred in the plaint that he had no access to defendant No.1 at the relevant time prior to 10.8.1976. That being the position, the finding given by both the Courts below that the plaintiff had failed to prove that defendant No.2 was not child of the plaintiff and defendant No.1, cannot be faulted.
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ssm
1 issue framed by the court
Whether the appellant has established that the appellant is not the father of the respondent.
1 provisions across 1 enactments
Manuel Francisco da Costa major of age, married, businessman
Valdemira Senhorina do Rosario Noronha alias Mira D'Costa
Linda Presca da Costa
A.P. Lavande
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
