Dissenting Opinion by
Hoffman, J.:I agree with President Judge Ervin that testimony of husband or wife as to nonaccess should not be barred' *439where it will not bastardize the child-
The time has come, however, for a thorough, critical reevaluation of the general rule. I need not here consider the questionable, historical basis for this doctrine. Its origin and development have been carefully explored and analyzed in 7 Wigmore, Evidence § §2063, 2064 (3rd Ed. 1940)'... Moreover, regardless of the historical justification for the rule, it has, concededly, through repeated citation, become ah established part of the substantive' law of evidence of this Commonwealth. Nonetheless, the' very harsh consequences which arise out of its application demand that we subject it yet again to Careful- scrutiny.
Various theories have been advanced in support of the doctrine. Some courts have suggested that it is indecent, unseemly, or immoral for husband or wife to testify as to nonaccess. Yet, we permit women to testify as to their own adultery. Cairgle v. American Radiator and Standard Sanitary Corporation, 166 Pa. Superior Ct. 621, 74 A. 2d 721 (1950), aff’d., 366 Pa. 249, 77 A. 2d 439 (1951). We permit women to testify in divorce actions as to desertion by their husbands despite the fact that children may have been born in the interim. To hold that a woman’s testimony as to her husband’s nonaccéss is indecent, while testimony as to her own adultery or as to her husband’s desertion is not, is hypocritical and flies in the teeth of common sense.
A second argument repeatedly advanced by - our courts is that the legitimacy of the child is a matter of great significance, and that, consequently, th¿ child should'not be'baétardized by'the testimony of his'parents. The application of this artificial rule,' however, tends only to suppress thé truth and exclude competent evidence.' ' If the legitimacy of children is of such paramount importance, we should similarly not permit the testimony of third persons in this regard, Yet, wé per*440mit the introduction of testimony by strangers while excluding the testimony of husband and wife who are, obviously, in the best position to know and disclose the truth. It is a strange rule of evidence which requires that courts, which are otherwise so zealous in the search for truth, ignore and suppress the most important evidence of all, while relying on the testimony of outsiders.
In this regard, reference should also be made to § 21 of the Uniform Reciprocal Enforcement of Support Law, Act of May 10, 1951, P.L. 279, § 21, 62 P.S. § 2043.21, which contains no such limitation. It provides: "Laws attaching a privilege against the disclosure of communications between husband and wife are inapplicable to proceedings under this act. Husband and wife are competent witnesses to testify to any relevant matter including marriage and parentage."
It appears, therefore, that our legislature, in enacting the Uniform Reciprocal Enforcement of Support Law in this Commonwealth, was not of the opinion that the testimony of husband or wife as to access seriously subverted our public policy. Moreover, there would appear to be no justification for a rule which allows the nonresident defendant husband to testify as to nonaccess, but denies that right to the resident husband.
The most important reason for the abandonment of this rule of evidence is to be found in its harsh, social consequences. The rule has always been envisioned as a method whereby husbands will be prevented from avoiding their responsibility to support their children. Thus, in People ex rel. Cullison v. Dile, 347 Ill. 23, 179 N.E. 93 (1931), the Supreme Court of Illinois suggested that the rule was salutary because the husband might otherwise be relieved of the support of the child and that burden would then fall upon the public. I can perceive no justification in a rule which would *441require that an individual support a child not his own, regardless of the benefits which may accrue to the public funds. Cf. Ventresco v. Bushey, 159 Me. 241, 191 A. 2d 104 (1963).
In point of practical fact, however, the doctrine has often worked to the detriment of the public welfare. Judges who regularly pass on support cases recognize that in a multitude of instances, the doctrine, rather than serving as a sword against the husband has been converted into a shield for the actual father. Particularly among the uneducated lower classes living in the midst of our large urban centers, the marital and family framework has been disrupted in an unusually high percentage of cases. Husbands often separate from or leave their wives, without seeking a divorce, and their whereabouts become a matter of conjecture. Subsequently, these wives often give birth to children, after having lived for an extended period with another man, who is clearly the father. Yet the courts, in many instances, find themselves unable to impose a duty of support on the actual father, because the presumption of access cannot be overcome, however remote the possibility might be. Consequently, the duty of support falls upon our public welfare agencies. To compound the unfairness of this situation, if the separated husband ever falls subject to the court’s jurisdiction, he becomes liable for support because he too cannot overcome the presumption of access and legitimacy.
This unfair situation has often induced lower courts to take unorthodox action to avoid the harsh consequences of the rule. Thus, in a recent case, a judge of the County Court of Philadelphia found that the mother had failed to overcome the presumption of access. Nonetheless, the court sought to impose a support order on the obvious father by holding that the man stood "in loco parentis" to the child. See Commonwealth ex rel. Morgan v. Smith, 209 Pa. Superior *442Ct. 364, 228 A. 2d 6 (1967) (Per Curiam: Order affirmed, HOFFMAN, J., filed a dissenting opinion, in which MONTGOMERY, J., joined; allocatur granted and appeal allowed, June 12, 1967).
I can find no justification or morality in a rule wbicb tends to absolve the rightful father of his duty of support, while imposing- such an obligation upon an innocent husband merely because of his marital relationship. -While I do not suggest that we relax the strict standards of proof required in overcoming the presumption of legitimacy, our courts, in making this determination, should-not be denied access to the most significant testimony of all, nor should the parties most directly concerned be denied the opportunity to present their cases directly to the court. . If -decency and morality are considerations, they suggest that the husband and wife be permitted-to testify, not that they be silenced by an arbitrary and hypocritical rule of evidence.