JUDGMENT 1. - This is an appeal by the husband Mohanlal under section 28 of the Hindu Marriage Act (No. XXV of 1955) for short 'the Act') against the judgment dated October 19, 1979 of the learned District Judge, Bikaner by which he dismissed the petition for dissolution of marriage by a decree of divorce under section 13(1) of the Act. For the sake of convenience, the husband-appellant and the wife-respondent will hereinafter be referred to as 'the husband' and 'the wife' respectively in this judgment. 2. The husband filed a petition under section 13 (1) of the Act October 13, 1972 for dissolution of marriage by a decree of divorce on August 13, 1972 in the Court of District Judge, Bikaner. It was stated by him that he was married with the wife in November, 1965 and, thereafter, they resided at Bikaner as wife and husband. A girl was born in January, 1979 out of this wedlock. According to the husband, the wife has been residing at her parents' house preceding four years from the date of presentation of the petition. It was stated that the husband and the wife met HINDI MATTER 235385 A. last on December 24, 1971 and thereafter they did not meet. An averment was made in para 7 of the petition that the wife is pregnant and its duration is of five months. In para 8 of the petition, it was stated that for the last seven months, prior to the filing of the petition, the husband and wife neither met HINDI MATTER B. nor cohabited. The words used in puss are : HINDI MATTER C. It was alleged that the wife has been pregnant by a person other than the husband and so she is leading an adulterous life, and that as she is carrying on prostitution, she is not fit to remain as husband's wife so he is entitled to the decree for dissolution of marriage by divorce. The wife resisted the petition. She did not admit that they met last only on December 24, 1971. She also denied that in August, 1972, there was pregnancy of five months, but according to her at that time she was having pregnancy of 71/2 months duration. She denied the charge of adulterous life. The wife resisted the petition. She did not admit that they met last only on December 24, 1971. She also denied that in August, 1972, there was pregnancy of five months, but according to her at that time she was having pregnancy of 71/2 months duration. She denied the charge of adulterous life. In the additional pleas, she stated that she was suffering from serious disease and on account of that she became extremely week, that her in-laws did not get her treatment properly, but treated her with cruelty, and because of this, she was forced to go to her parents' house. 3. On November 15, 1975, following issues were framed:- 1. Whether the respondent was and is living in adultery ? 2. Has the court jurisdiction to try the petition ? 3. Relief to follow ? The husband examined himself as P. W. 1 and P. W. 2 Malchand on July 24, 1976. Thereafter, the statements of N.A.W. 1 Smt. Pushpa Devi and N.A. W. 2 Smt. Rukma Devi were recorded on November 1, 1976. The parties finished their evidence. The case was posted for arguments and the arguments were heard on February 28, 1977 and it was ordered to be put up for judgment on March 15, 1977. An application for amendment of the petition was submitted on behalf of the husband on August 10, 1977 by adding the following in para 6 of the petition : HINDI MATTER D. This application was resisted by the wife by filing reply on August 18, 1977. The learned District Judge allowed the amendment on September 23, 1977 on payment of Rs. 30 as costs. The amended petition was filed on October 3, 1977. Thereafter, the wife took time for filing reply to the amended petition. However, as no reply was filed, the right to file reply to the amended petition was closed on December 11, 1978. An additional issue was framed on December 11, 1978, which, when translated into English, reads as under : 4. Whether non-petitioner had no cohabitation with the petitioner after the first week of October, 1971. If yes, what is the effect on the petition ? The parties did not lead any evidence in support of the aforesaid additional issue nor desired to cross-examine each others' witnesses after the filing of the amended petition. Whether non-petitioner had no cohabitation with the petitioner after the first week of October, 1971. If yes, what is the effect on the petition ? The parties did not lead any evidence in support of the aforesaid additional issue nor desired to cross-examine each others' witnesses after the filing of the amended petition. The learned District Judge by his judgment dated October 19, 1979 dismissed the petition under section 13(1) for dissolution of marriage by a decree of divorce. Hence this appeal by the husband. 4. The learned District Judge has decided issue Nos. 1 and 4 against the husband. Issue No. 2 was decided against the wife. As a result of the findings on issues Nos. 1 and 4, the petition for dissolution of marriage by a decree of divorce was dismissed on October 19, 1979. 5. On September 10, 1981, when the arguments were heard in part, learned counsel for the parties stated that they want to make an attempt for exploring the possibility of settlement between the parties and that in this connection, they want to call the parties. The husband and the wife both were present on September 24, 1981 and efforts for reconciliation between them were made when the appeal was taken up for hearing. On that day, the learned counsel for the parties stated that the appeal may be adjourned for a day and may be taken up for further arguments September 25, 1981. On September 25, 1981, learned counsel for the parties stated that efforts for reconciliation have not materialised and attempt made by them in this direction has failed. 6. I have heard Mr. C. D. Moondra, learned counsel for the appellant and Mr. B.L. Purohit, learned counsel for the respondent and have carefully gone through the record. 7. Mr. C.D. Moondra, has assailed the findings on issues Nos. 1 and 4. 8. Material portion of section 13 (1) as amended by the Marriage Laws (Amendment) Act. 1916, is as under:- "Section 13. Divorce : (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party : (1) has, after the salemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (2) ......... ......... ......... ......... ......... (3) ......... ......... ........." Prior to it, clause (1) of sub-section (1) of section 13 was as follows:- "(1) is living in adultery; or" 9. A Full Bench of this Court in B.D. Charles v. Smt. Nora Benjamin, ILR (1979) 29 Rajasthan 687, held that direct proof of adultery is very rare, and that adultery can be established by circumstantial evidence and circumstance must be such as would lead the guarded discretion of a reasonable and just man to a conclusion of adultery. It is not in dispute that in October, 1972 a son was born to the wife who had died immediately after birth. In the petition dated August 13, 1972, it was stated that at the time of filing of the petition under section 13(1) of the Act for dissolution of marriage by a decree of divorce, the wife was pregnant of five months' duration and that the husband has not cohabited with her for the last seven months. The grounds that the wife is living in adultery are contained in paras 9 and 10 of the petition. A careful analysis of para 9 of the petition shows that the wife was pregnant and according to the husband, she was not pregnant by him and as such it is clear that she is leading an adulterous life From pars 10, it appears that the allegation is that the wife was leading adulterous life at her parents' house and this is her reputation. The charge regarding adultery is very serious but the question is whether the husband has been successful in discharging the burden of issue No. 1, which lay on him and which covers the subject matter of adultery. The husband as P. W. 1 has stated nothing about the adulterous conduct of his wife. What he has stated is that after October, 1971, she has no coition with the wife. The other witness is P. W. 2 Malchand, who is the father of the husband. He has not stated a word in support of the allegations that the wife was living in adultery prior to the filing of the petition. The site as N. A. W. 1 has categorically stated that her husband has levelled a false charge of adultery against her as the son who was born in October, 1971 was conceived by her husband. 10. The site as N. A. W. 1 has categorically stated that her husband has levelled a false charge of adultery against her as the son who was born in October, 1971 was conceived by her husband. 10. Having considered the statements of P. W. 1 Mohanlal and his father P.W. 2 Malchand and the denial of N. A. W. 1 Smt. Pushpa in her statement, I am definitely of the opinion that the husband has miserably failed to discharge the burden of issue No 1, which lay on him regarding the charge of adultery. The allegations about the adultery are vague and there is no direct or circumstantial evidence to warrant an inference of adultory. Issue No. 1 was, therefore, rightly decided by the learned District Judge against the husband. 11. This brings me to the examination of finding on issue No. 4. 12. In para 4 of the petition, the husband has stated that the 'Milap' was on December 24, 1971 (Poh Sudi 7 Smt. 2028) and, thereafter, they did not meet an style='font-family:Ankit' HINDI MATTER E.spanIn pars 8, it was stated that for the last 7 months preceding the date of the presentation of the petition, there was neither 'Milap' nor cohabitation between the husband and the wife. P. W. 1 Mohanlal has stated that he did not mean by 'Milap' as 'Sangam' (Sexual intercourse). By amendment, the husband has incorporated that there was no 'Sahwas' between the husband and wife after the first week of October, 1971. The husband as P. W. 1 has produced the letter (Ex. 1) which is said to have been written by the wife to the husband. According to the wife, the date A to B 27-6-72' is not written by her. So also the word ' HINDI MATTER F. written by pencil after striking out the word HINDI MATTER G. which is written in ink in the body of the letter was not written by her, through the rest of the letter according to the wife, was written by her at the threat of her mother-in-law. The material portion of that letter is as under:- HINDI MATTER H. Before scrutinising the relevant contents of the letter (Ext. 1), let me notice as to under what circumstances, the son could be born to the wife in October, 1972.Section 112 of the Evidence Act is as follows:- "112. The material portion of that letter is as under:- HINDI MATTER H. Before scrutinising the relevant contents of the letter (Ext. 1), let me notice as to under what circumstances, the son could be born to the wife in October, 1972.Section 112 of the Evidence Act is as follows:- "112. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten". According to this section, the fact that any person born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days, shall be conclusive proof that he is the legitimate son of that unless it can he shown that the parties to the marriage had no access to each other at any time he could have been begotten. Section 112 of the Evidence Act was considered in Chilukuri Vankataswarly v. Chilukuru Venkatanaryana, AIR 1957 Supreme Court 176, wherein, their Lordships observed as follows:- "It may be stated at the outset that the presumption which section 112 of the Indian Evidence Act contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature, the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy Council : vide- ' Karapaya v. Mohandi, AIR 1934 PC 49 , existence and non-existence of opportunities for marital intercourse. It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff-appellant, that non-access could be established not merely by positive or direct evidence, it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial which is relevant to the issue under the provisions under the Indian Evidence Act though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory......" (Emphasis added). 13. 13. In Raghavan Pillai v. Gourikutty Amma, AIR 1960 Kerala 119, it was laid down "The question whether the husband and the wife had access to each other is one of fact and the party interested in denying the legitimacy of the child must set up a plea of non-access and prove the same......" 14. In Mst. Mohinder Kaur v. Harinder Singh and another, AIR 1960 Punjab 169, it was observed:- "........Presumption of legitimacy being highly favoured by law, proof of non-access must also be clear and satisfactory; access and non- access connotes existence or non-existence of opportunities for marital intercourse. Onus of such non-access is always on, the party who alleges it...... " After considering Mahendra v. Sushila, AIR 1965 Supreme Court 364, in Nandkishore v. Smt. Munnibai, AIR 1979 Madhya Pradesh 45, it was observed as under:- "......Imputing unchastily to a woman is a charge of very serious nature. The charge, if established, may result in serious consequences. Not only would such a woman be condemned is the society and be lowered in eyes of her relatives and associates, but may also suffer a child, if any being called a bastered. It shall therefore be just to see for a more cogent and convincing evidence in such cases than the one which may only be sufficient to create a doubt. Indeed the Supreme Court in Mahendra v. Sushila, AIR 1965 Supreme Court 364 has under such circumstances desired that the petitioner should be allowed to succeed only if he proves beyond reasonable doubt that the respondent was pregnant by someone else at the time of the marriage. It is, however, further observed that admissions of the parties in such cases can also be considered. Needless to say that the evidence adduced by the appellant in this case does not satisfy the test laid down by the Supreme Court in the above case". It is, however, further observed that admissions of the parties in such cases can also be considered. Needless to say that the evidence adduced by the appellant in this case does not satisfy the test laid down by the Supreme Court in the above case". (Underlining is mine).It is clear from the aforesaid authorities that burden regarding non-access is on husband who has so alleged and that the evidence should be clear and satisfactory Modi, on Medical Jurisprudence and Toxicology, Twentieth Edition, under the head 'Average Duration of Pregnancy' at page 326, has stated as under:- "From the above points it is quite clear that the actual duration of pregnancy in the female is not known ; however, the average period calculated from experience is 280 or 40 weeks, or 10 lunar months. This is equivalent to ten times the normal inter menstrual period which is, usually twenty eight days. It has been observed that in woman whose menstrual period is shorter than the usual time pregnancy has terminated at the eight or ninth lunar month or even earlier, the child having attained full development. Sidney H. Weddy describes a case in which a woman, aged 10 years gave birth to a full time daughter after gestation of 210 days ten times three weeks which was her normal inter-menstrual period. The child cried lustily at birth, had a good crop of hair, was well created with vemix case can, measured twenty inches in lengh, and weighed seven pounds. The fingers and the nails were fully developed and the child sucked vigorously on being put to the breast." The learned author has further stated:- "......the circumstance taking into consideration in estimating the duration of pregnancy are the date of conception from a single coitus and the arrest of menstruation, but neither of this is reliable, a single coitus does not fix the date of conception, but merely the date of insemination." According to the husband (P.W. 1), the last 'Milap' of the husband with the wife was on December 24, 1971 and as there was no cohabitation preceding seven months from the date of the presentation of the petition and so, there was no question of conceiving child by him. By amendment, the husband has incorporated in the amended plaint that after the first week of October, 1971, there was no co-habitation and as the child born in October, 1972 could not be his. I do not purpose to examine whether the letter (Ex-1) written by the wife was written at the threat of her mother-in-law, for, there appears to be no evidence whatsoever in this connection, and the wife as N.A.W. 1 has in her statement stated that the content mentioned in the letter are correct except that the date 27.6.72' and the month 'November' C to D' were not written by her. According to the wife, after October, she had 2-3 menstruations which generally falls after 28 days. So according to the wife, she became pregnant either in December or January, 1971. The other significant fact is that when this letter was written, which according to the wife, did not bear any date, the 5th month of pregnancy has commenced. So, this letter must have been written, according to her, in May or June, 1971. 15. From the allegations made in para 6 of the original petition and even after its amendment, it is difficult to infer that the husband has no access to the wife so as to rebut the presumption arising under section 112 of the Evidence Act. In connection with issue No. 4, the husband was required to prove that he had no coitus with the wife after the first week of October, 1971. P.W. 1 Mohan Lal in his statement has stated that after October, 1971, he had no sexual meet with the wife. He has also stated that the letter (Ex-1) is written by the wife and bears her signatures. P.W. 2 Malchand, who is the father of the husband, has stated that after two days of the death of the father of the wife, she came for one day at Bikaner and went away to her parents' house the next day, that in May, 1972, when she came back, she was pregnant and that when she was shown in the hospital, it was told that she had 4th month of pregnancy. About this information, he sent letter to his son and the husband received a letter from his wife also and on being informed by the husband, who was sent to her parents' house on July 3, 1972. About this information, he sent letter to his son and the husband received a letter from his wife also and on being informed by the husband, who was sent to her parents' house on July 3, 1972. According to him, when she came in the month of May, 1972, she was running 4th month of pregnancy. N.A.W. 1 Mst. Pushpa has stated that she had coitus with her husband on December 24, 1971. She stated that after the death of her father, she went to her parents' house and after 12 days of the death of her father, she returned to Bikaner and remained there for one day and, therefore, she came back to her father's house. She got herself examined by a nurse and she was told that there is pregnancy of 21/2 months. In her cross-examination, she reiterated that the last coitus between the husband and the wife was on December 24, 1971 and that the child was born to her in the 10th month N.A.W. 2 Smt. Rukma Devi has stated that she had examined the wife and found that she was running 3rd month of pregnancy. She has also stated that she also examined the wife in the month of October, and at that time the wife was having a child of full period and after 57 days, a son was born to her, who died soon after his birth. It is significant to note that no question was put to the wife when she was examined as a witness as to what was her usual period of menstruation and when did she mestruate prior to December 24, 1971, and further as to when did she menstruate last before she give birth to a son in the month of October, 1972. The wife Smt. Pushpa as N. A. W. 1 and N.A.W. 2 Smt. Rukma Devi have stated that the child was born to the wife after completion of full period of pregnancy. Usual period for complete delivery is 280 days but it varies according to the period of menstruation of each lady and this ranges from 262 to 280 days. When she has stated about the full period. It is from the date of her last menstruation, which may be in December, 1971 or near about. Usual period for complete delivery is 280 days but it varies according to the period of menstruation of each lady and this ranges from 262 to 280 days. When she has stated about the full period. It is from the date of her last menstruation, which may be in December, 1971 or near about. Having regard to the averments made in para 6 of the petition and the statement of the witnesses of the parties and the letter Ex. 1, admittedly written and signed by the wife, it will not be unsafe to infer that the husband has failed to establish that he had no access to the wife after the first week of October, 1971. Non existence of opportunity for marital intercourse between the husband and the wife after October, 1971 has not been proved by the husband and there appears to be justification in the version of the wife that she has remained pregnant by the husband. The learned District Judge was, therefore, right in deciding issue No. 4 against the husband. The result of the discussion made hereinabove is that I affirm the findings of the learned District Judge in respect of issue No. 4. 16. No other point survives for my consideration. 17. For the foregoing reasons, there is no merit in this appeal and it is, accordingly, dismissed. In the circumstances of the case, there will be no order as to costs.Appeal dismissed. *******