Kerala HC Holds Child Born Within Four Months of Marriage Entitled to Equal Share in Father’s Property

The Kerala High Court, by its judgment dated 19.12.2025, has held that a daughter born within four months of her parents marriage is entitled to an equal share in her deceased father’s property, setting aside a preliminary decree which had excluded her from inheritance.

The Court ruled that statutory presumptions under the Indian Evidence Act, 1872, read with oral and documentary evidence on record, conclusively established her legitimacy and paternity.

The judgment was delivered by a Division Bench comprising Justice Sathish Ninan and Justice P. Krishna Kumar while allowing a Regular First Appeal filed by the widow and children of a deceased man challenging a partition decree passed by the Sub Court, Chavakkad.

The appeal arose from a suit for partition concerning properties left behind by Krishnan, who died intestate in December 2012.

The dispute centred on whether the second plaintiff, a daughter born on 12.05.2001, within four months of the marriage between her mother and Krishnan, could be treated as his legitimate child and thereby entitled to a share in his estate.

While the widow and three children claimed equal entitlement as Class I heirs, Krishnan’s mother contested the paternity of the second plaintiff, arguing that the child could not have been conceived within the marriage and denying any premarital relationship between the couple.

The trial court had accepted the defence version and held that the plaintiffs failed to establish the paternity of the second plaintiff. Consequently, it ordered partition only among the widow, two other children, and Krishnan’s mother, excluding the second plaintiff altogether.

The said finding was challenged before the High Court.

The appellants, before the High Court relied on oral testimony, documentary records and statutory presumptions. The evidence included testimony from the father of the first plaintiff, who deposed that Krishnan had acknowledged responsibility for the pregnancy even before the marriage and had consistently treated the second plaintiff as his daughter throughout his life.

The witness further stated that Krishnan had openly affirmed his paternity in the presence of his parents when objections were raised prior to the marriage.

The High Court found fault with the trial court’s rejection of this testimony on the ground that it was not direct evidence.

The Bench held that statements made by a deceased person regarding relationships by blood are relevant and admissible under Section 32(5) of the Evidence Act, provided they were made before the dispute arose and the person had special knowledge of the relationship. Since Krishnan was deceased, his statements acknowledging the child could be proved through a witness who had heard them.

The Court also placed reliance on Section 50 of the Evidence Act, which makes conduct reflecting opinion on a relationship a relevant fact. It noted that Krishnan’s conduct, acknowledging the child, supporting her documentation, and treating her as his daughter, constituted strong evidence of his belief regarding paternity. The Bench relied on settled legal principles laid down by the Supreme Court of India to explain that such conduct can be proved through witnesses who observed it.

In addition to oral evidence, the High Court took note of documentary materials including the child’s passport and Krishnan’s pension records, which identified the second plaintiff as his daughter.

While these documents had initially been marked tentatively before the trial court, the High Court permitted the production of originals at the appellate stage, finding them relevant to the issue in dispute.

Significantly, the Court emphasised the conclusive presumption under Section 112 of the Evidence Act, which provides that a child born during the subsistence of a valid marriage is presumed to be legitimate unless non-access between the spouses at the relevant time is strictly proved. The Bench clarified that the presumption is not defeated merely because conception may have occurred prior to marriage; What is required to rebut the presumption is proof that the spouses had no access to each other at any time when the child could have been begotten.

The Court found that the defendants failed to discharge this burden. The oral testimony of the first defendant was found to be a bare denial unsupported by cogent evidence. On the other hand, the plaintiffs had affirmatively established access and acknowledgment. The trial court, the Bench observed, committed a manifest error in refusing to apply Section 112 solely on the ground that the child was conceived before marriage.

Holding that the second plaintiff was a legitimate daughter, the High Court ruled that she was entitled to an equal share along with the other Class I heirs. Accordingly, the appeal was allowed, and the preliminary decree was modified to direct partition of the relevant properties into five equal shares, allotting one share each to the widow, all three children, and Krishnan’s mother. 

Case Title: Sujatha Krishnan & Ors. v. Radha Mohandas & Ors.

Bench: Justice Sathish Ninan and Justice P. Krishna Kumar

Date of Judgment: 19.12.2025