Louis

This appeal concerns the application of Evidence Code section 621 which became effective January 1, 1967, and reads as follows: “Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is conclusively presumed to be legitimate.” The section is a reenactment of Code of Civil Procedure section 1962, subdivision 5 (repealed as of January 1, 1967) of identical language, except that the earlier statute carried the word “indisputably” instead of “conclusively.” The meaning remains unchanged.

These sections have repeatedly been construed by our appellate courts. “Cohabiting” has the settled meaning of living together as husband and wife (Kusior v. Silver, 54 Cal.2d 603, 612-613 [ 7 Cal.Rptr. 129 , 354 P.2d 657]), and, absent impotency of the husband, where a child is conceived during such cohabitation, by whatever male seed, a conclusive presumption that the child is legitimate, and the husband its father, attaches. The husband is the legal father even though biologically the fact may be otherwise. (Jackson v. Jackson, 67 Cal.2d 245 [ 60 Cal.Rptr. 649 , 430 P.2d 289 ]; Kusior v. Silver, supra; Keaton v. Keaton, ante, p.…