D. K. SETH, J. Mr. Diwakar Rai Sharma, learned counsel for the appellant in connection with the second appeal in sisted passing of an interim order staying the operation of the decree of dissolution of marriage dated 24-2-1999 passed in Marriage Petition No. 735 of 1986 by the learned Additional Civil Judge, Senior Division, Aligarh since been affirmed by judgment and decree dated 30-11-1999 passed by learned Additional District Judge, XIth Court, Aligarh in Appeal No. 26 of 1999. Shri Devendra Dahma, learned counsel appearing for the respondent op posed to grant interim order. In the cir cumstances, both the learned counsel were heard on the question as to whether any interim order should be granted in connec tion with the said appeal or not. It was also suggested by Mr. Devendra Dahma to hear the appeal here and now. According to him, it can be decided on the basis of the material placed before this Court. Whereas Mr. Sharma, on the other hand, contended that this cannot be decided without the records since it involves cer tain questions which requires reference to the record. However, both the learned counsel addressed the Court on the merit of the case on the basis of the judgment of both the Courts below. 2. Mr. Sharma has assailed the judg ments on the ground that the proof with regard to pregnancy before marriage with some person other than husband should be beyond all reasonable doubt and that the plaintiff had failed to prove the same and that the evidence of Dr. Manju Gupta Medical Officer of the Government Maternity Home where the child was born though produced the register but yet two of the pages arc missing and as such the same could not be relied upon. He further contended that the plaintiff did not dis charge his onus with regard to the question as to whether the husband used to visit the wife before the marriage and he had as sailed the finding of the learned appellate Court that even if the husband visited the house of the wife before marriage the same would have been illegal and as such could not be recognised. Thus the appellate Court had proceeded virtually on a wrong presumption, which is an erroneous view, giving rise to substantial question of law. He also contends that the full born baby can take birth even after 7 months. Thus the appellate Court had proceeded virtually on a wrong presumption, which is an erroneous view, giving rise to substantial question of law. He also contends that the full born baby can take birth even after 7 months. Simply health of the baby cannot be a ground that he is supposed to be not pre-mature. He further contends that the learned Court below had not properly dealt with the in gredients under Section 12 (ii) (b) of the Hindu Marriage Act in order lo ascertain the situation. According to him the finding is perverse and as such it should be inter fered with. He further contended that hus band had condoned the act of the wife by a notice calling upon her to live with her husband. This notice was sought to be brought on record byway of amendment to the written statement at the appellate stage at the time of argument which was rejected on the same day and the judgment was delivered without any opportunity to the wife to challenge the said order and therefore, this order has also been chal lenged in this appeal. If the act was con doned in that event the appeal could not be maintained. 3. Mr. Dahma, learned counsel for the respondent points out from the two judgments that it was purely a finding of fact and that there is no infirmity on those findings. According to him the date of birth having been found 30-8-1996 the question of giving birth of full born baby after 7 months cannot be of any relevance. The observation of the learned appellate Court with regard to the illegality or con nection before marriage between husband and wife is an obiter and had no relevance since it is not based on any finding to the extent that there was any relation between the parties before the marriage. Though he had contended that the observation made by the learned appellate Court cannot be sustained in law, but still then unless there is a finding that there was a relation before marriage, the said observation cannot af fect the merit of the decision. He further contends that this appeal does not involve any question of law since it is purely a finding of fact on the basis of belief and disbelief. He further contends that this appeal does not involve any question of law since it is purely a finding of fact on the basis of belief and disbelief. Even on the basis of such materials this Court can come to a dif ferent finding still then this Court cannot interfere with the finding unless it is per verse on the basis of material which were relied upon by the learned Courts below. He further contends that the appellant sought the amendment after the argument was over, therefore, it was rightly dis missed. If it was a case of condonation in that event, it was open to the wife appel lant to incorporate the same in the written statement or even sometime before the arguments in the appeal had commenced. On these grounds he prays that the appeal should be dismissed. 4. I have heard learned counsel for the parties at length. 5. I would record appreciation of the manner in which Mr. Divakar Rai Sharma had argued this case. He had raised such questions, which really raised substantial question of law. But unless those questions have relevance or nexus with the material placed before the Court, it cannot be said that those are involved in this case. In the present case, the trial Court had discussed the evidence of Dr. Manju Gupta as well as records of the Government Hospital. He had taken also note of missing of two pages of the register while noting that Serial Number of birth register are not missing and are consecutive. Both the Courts below had come to a finding that there was nothing on record to cast any doubt on the question of records maintained by the Government Hospital supported by the oral evidence of the Medical Officer who was examined and who had proved those documents, the Medical Officer has also supported the said documents in her oral evidence. At the same time, the trial Court had disbelieved the oral evidence on be half of the wife to the extent that all the witnesses were related to her except one neighbour who had also come without being called upon and alleged to have per formed the duty of mid- wife which she had left for last 4-5 years. Her evidence was discussed. Her evidence was discussed. It was observed that she could not remember any of the other persons in whose case she had attended delivery of child as mid- wife though she had attended 20 such deliveries in the neighbaurhood. On the said ground the learned trial Court has disbelieved her evidence. Thus the fact remains that it was a question ol belief and disbelief on the basis of certain materials. Even this Court is of a different view on the basis of such material still then this Court cannot interfere with the same unless the findings are perverse. On the basis of the material the Court could have come to one or other finding and had come to a par ticular finding. Unless perversity is shown, the said finding cannot be interfered with. 6. In the present case the date of birth of the baby was found 30-8-1986 while the marriage had taken place on 13-3-1986. Thus the child had taken birth within 5 months and few days after the marriage. Since the Courts below have come to a conclusive finding that the child was horn on 30-8-1986, all other contentions looses its relevance of significance. If the finding of fact that the child was taken birth on 30- 8-1986 cannot be interfered with then other question need not be gone into. 7. So far as the question of relation between the parties before marriage is concerned, it is alleged in the written state ment that there was relation between the parties before marriage but no issue on that fact was framed. It was incumbent on the defendant to suggest an issue on that fact. If such issue was not framed, in that event, it was open to the wife-defendant to ask for framing of such issue even on ap pellate stage such prayer can be made for framing additional issues. But such plea has never been taken. There is nothing on record to show that there was any relation between the parties before marriage. The contention of Mr. Sharma that the burden was upon the plaintiff is misplaced. But such plea has never been taken. There is nothing on record to show that there was any relation between the parties before marriage. The contention of Mr. Sharma that the burden was upon the plaintiff is misplaced. Inas much if the plaintiff is called upon to prove this question to show that there was any relation with his wife before marriage it could have been said by him that he had no relation before marriage, which is a negative proof which a person cannot be called upon the prove. Whereas it was the wife to plead such fact and such fact was positive proof which was required to be proved by the wife. She does not appear to have discharged from the said burden and as such it cannot be said that the burden/onus was shifted on the plaintiff with regard to proof of this question. 8. So far as the amendment is con cerned, the amendment was sought for after the argument was over and as such it was rejected and the judgment was pronounced. In his usual fairness Mr. Sharma contented that the question of condonation of act of the wife was com municated long before the appeal was filed. Therefore, either it should have been incorporated in the written statement or by way of amendment in the written statement before the trial Court or before the lower appellate Court before the argument was commenced. The very fact that such plea was taken only after the argument in the appeal was over shows that the wife had made out a case in desperation. Thus I do not find any reason to accept the contention of Mr. Shar ma that the learned appellate Court has failed to exercise its jurisdiction as such it can be gone into under Section 105 of the Code in this appeal. If such contention was pleaded in that event it ought to have decided on the basis of issue to be framed. The wife had never insisted framing of such an issue in the suit nor it was alleged in the written statement. Only when the argument in the appeal had commenced, this plea was taken which shows that the wife defendant was neither serious nor diligent with regard to this question. 9. The wife had never insisted framing of such an issue in the suit nor it was alleged in the written statement. Only when the argument in the appeal had commenced, this plea was taken which shows that the wife defendant was neither serious nor diligent with regard to this question. 9. So far as the question of proof with regard to Section 12 (ii) (b) of the Hindu Marriage Act is concerned both the Courts below had examined the said question and had concurrently come to a finding that it was presented and was properly proved. Admittedly the suit was filed within one year from the date of discovery of the act. Not only that the suit was filed on 8-12-1996 which is less than one year from the date of marriage. Thus it does not appear that there was any infirmity on that ques tion. 10. So far as the health of the baby which was admitted to be full born baby is concerned it might be that after 7 months there may be full born baby but that ques tion of 7 month is of no relevance as soon the dale of birth is accepted as of 30-8-1986 and the marriage had taken place on 13-3-1986. Since it is a finding of fact with regard to the acceptance of the date of birth as 30-8-1986, it is no more necessary to go into that question. 11. Apart from the above arguments made by Sharma, he has not advanced any more point nor he had contended that there are any other material on which this question can be decided otherwise or which might support him. Except the allegation of condonation of act he has not referred to any document cither on record or outside which might have a different impact on the findings by both the Courts below. Since it is a con current finding of fact, it is not open to this Court to interfere with the same. At the same lime question of law which were urged were found attractive but ultimately not to be involved in this case on the basis of the material that are placed before this Court. It is not alleged that there might be any other material, which could form a different opinion. Therefore, 1 do not find any reason that interim order should be granted. It is not alleged that there might be any other material, which could form a different opinion. Therefore, 1 do not find any reason that interim order should be granted. At the same time I also do not find that there is any merit in the appeal. In such circumstances let the application for interim order as well as the appeal be dismissed. 12. However, there will be no order as to cost. Appeal dismissed. .