dissenting:
I do not object to the majority’s heralding of the presumption of legitimacy as it applies to a child conceived during a marriage nor do I gainsay their extension of the presumption to cases where a child is conceived before, but born during, a marriage when the status of the child is raised by strangers to the parent-child relationship. What I do find incorrect is that the majority’s application of the presumption to an annulment sought under W.Va. Code, 48-2-1 [1969] which provides:
All marriages ... when, at the time of marriage, the wife, without the knowledge of the husband, was with child by some person other than the husband ... are voidable and shall be void from the time they are so declared by a judgment order of nullity.
The majority fails to discern that different standards of proof can apply to different issues based on the same facts. When the status, legitimate vel non, of a child born in lawful wedlock is contested by strangers (e.g. siblings or other relatives) then the presumption of legitimacy should apply to protect the child; however, in an annul*280ment proceeding the status of the parties to the marriage is the issue and the status of the child is declared one of the grounds for annulment — an issue to be determined by a preponderance of the evidence.
While the majority does not expressly apply the presumption of legitimacy to the annulment in this case, they do so implicitly by affirming the lower court’s holding. The lower court did not clearly differentiate between its holding that child support was due and that the annulment was denied when it said:
[I]n absence of a presumption that the child is legitimate by reason of the fact that it was born in lawful wedlock, this Court would be of the opinion that the evidence tends to prove the child was conceived substantially earlier ... and by a male other than the defendant.
I think it should be made clear that no presumption of legitimacy applies when an annulment is sought under the above quoted provision of W.Va. Code, 48-2-1 [1969]. Consequently this case is wrong. Our law does not contemplate a man supporting a child not his own merely because it is a nice idea arbitrarily to relieve the Department of Welfare of this burden. While W.Va. Code, 48-2-2 [1969] provides that all marriages are presumed valid and any invalidity must be clearly proven, this does not amount to a presumption that any grounds a petitioner asserts are presumed to be false; it means only that he must clearly prove his grounds. For instance, an annulment may be procured upon clear proof by a petitioner that his marriage partner was afflicted with venereal disease when the marriage was solemnized, but no one has ever proffered a presumption that people being married do not suffer from venereal diseases. It is the purest form of irony for the Legislature to provide a litigant with grounds for annulment while the judiciary with a trick of legerdemain snatches them away under the guise of a presumption.
In the present case, I find that the husband clearly proved that his wife, without his knowledge, was with *281the child of another man at the time of their marriage. The wife testified that the only incident of sexual intercourse between the parties before their marriage on August 22, 1975 occurred on August 6, 1975 while the husband denied any premarital sexual relations. At that point the lower court was entitled to believe either testimony, but when overwhelming proof in the form of medical testimony was presented to the effect that the time of conception would necessarily have been considerably before August 6, 1975 then the husband’s allegations about the child’s not being his own become clearly more believable than those of his spouse and the husband has met his burden of clear proof. For that reason I would reverse the decision of the lower court and instruct it to enter a decree granting the husband an annulment.