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2005 DIGILAW 344 (HP)

Kushal Kumar v. Parveen Kumari

2005-09-14

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J. 1. This appeal under Section 28 of the "Hindu Marriage Act, 1956 is directed against the judgment and decree passed by the learned District Judge, Una in H.M.A. Petition No. 65 of 1999 whereby he has dismissed the petition for grant of divorce filed by the appellant-husband. 2. Briefly stated the facts of the case are that the husband, Kushal Kumar, married Smt. Parveen Kumari, respondent No. 1-wife, according to Hindu rites on 5.3.1991. Out of of the wedlock two daughters, namely Alka and Priya were born. The petitioner serves in the Indo Tibet Border Police, lie was posted at Srinagar in the year 1988. Respondent No. 1 was residing in the marital home at village Rajli Banyala. Those facts are not disputed. 3. According to the petitioner during the period when he remained at Srinagar, he visted his matrimonial home from 12.6.1998 to 12.8.1998 when he was on annual leave and thereafter he visited respondent No. 1 from 25.5.1999 to 30.5.1999 only. The husband further avers that when he came to his native village on 12.10.1999 he was surprised to find that the wife was in an advanced stage of pregnancy. A male child was born on 11.11.1999. Therefore, the petitioner avers that the wife has voluntarily sexual intercourse with some other person (respondent No. 2) as a result of which a male child was born to respondent No 1. Allegations of cruelty were also made. 4. The wife in her reply admitted the fact that the marriage had taken place. According to her all the three children including the male child were born from the loins of the husband. Though the wife admitted that the husband was posted at Srinagar, according to her he used to visit the house casually (?) The allegations with regard to having had sexual intercourse with some other person were denied. It would also be pertinent to mention that the alleged, paramour was impleaded as a respondent only after the evidence had been recorded and after his name was impleaded, no evidence was led. The trial court framed issues and recorded evidence of the parties. 5. The learned District Judge came to the conclusion that the husband had failed to prove that the child was not born from his loins. The trial court framed issues and recorded evidence of the parties. 5. The learned District Judge came to the conclusion that the husband had failed to prove that the child was not born from his loins. Relying upon Section 112 of the Evidence Act it was held that the husband has failed to prove that the child is not his. The lower court has also held that the certificate of leave, Ex. PW-3/A produced by the husband is incorrect and does not reflect the correct position with regard to the leave obtained by the husband and that this also shows that the husband may have been visiting his village without taking leave. The court also held that the petition was not in accordance with the rules and dismissed the petition. 6. The husband has filed this appeal before this Court. Before taking up the appeal for consideration on merits, it would be pertinent to mention a few facts. Notice of the present appeal was issued to the respondent-wife on 3rd July, 2003. Mr. N.K. Thakur, Advocate, put in appearance on behalf of the wife. The appeal was admitted on the said date. Thereafter the husband filed an application being CMP No. 200 of 2005. This application was filed under Section 151 C.P.C. and the prayer made was that to determine the paternity of the male child born to the respondent-wife, a D.N.A. test be carried out so that the controversy would be narrowed. Notice of this application was issued by this Court on 10.4.2005 and the counsel appearing for the respondent-wife sought three weeks' time to file reply. Reply on her behalf was filed in this Court on 2nd May, 2005. This reply is purported to be drafted and signed at Shimla on April 28, 2005 and is duly supported by the affidavit signed by the wife. This affidavit has also been attested at Shimla on 28th April, 1995. Thereafter the matter was adjourned. On 27th May, 2005 this Court passed an order directing the husband and the respondent-wife to remain present in court on 23rd June, 2005. This order was passed in view of the submissions of the parties that the matter may be settled out of court instead of entering into any unsavoury controversy. On 23rd June, 2005 despite the fact that the wife had been directed to be present, she did not remain present. Mr. This order was passed in view of the submissions of the parties that the matter may be settled out of court instead of entering into any unsavoury controversy. On 23rd June, 2005 despite the fact that the wife had been directed to be present, she did not remain present. Mr. Thakur, learned Counsel appearing on her behalf, stated that he had full instructions on her behalf. On the basis of the discussions held with the husband and Mr. N.K. Thakur, this Court came to the conclusion that there appears to be a reasonable chance that the matter can be mutually settled between the parties. Thereafter at the request of learned Counsel for the parties, the matter was listed on 15th July, 2005 on which date both, the husband and the wife, were directed to remain present in court. On 15th July, 2005 the wife was again not present in court. She was then directed to be present on 26th July, 2005. On 26th July, 2005 Mr. Thakur made a statement that he had sent letters to the respondent-wife informing her about the orders passed by the court, but she has not responded. The matter was adjourned to 27.7.2005 on which date Mr. Thakur again repeated that he has received no instructions from the respondent-wife. Thereafter a notice under Order 5 Rule 3 C.P.C. was issued to the respondent-wife directing her to be present in person in the court on 24.8.2005. In the said notice it was made specifically clear that in case she is not present in person despite the order of the court the matter will be disposed of in her absence. On the next date, i.e. 24.3.2005 Mr. Thakur stated that he has no instructions to appear on behalf of the respondent-wife. Therefore, the petition filed under Section 24 by the respondent-wife was dismissed in default. Since the wife was not present despite repeated orders she was proceeded ex parte and arguments in the main appeal were heard. 7. The main controversy in the case is whether the male child born to the respondent-wife is the child of the husband or not. To decide this controversy it is necessary to refer to the statements of the witnesses. 8. PW-1, Dr. 7. The main controversy in the case is whether the male child born to the respondent-wife is the child of the husband or not. To decide this controversy it is necessary to refer to the statements of the witnesses. 8. PW-1, Dr. Mohinder Singh, states that the wife, Parveen Kumari, was admitted in his nursing home on 11.11.1989 and a male child was born to her on the same date at 12.10 p.m. According to him it was a full term normal delivery. 9. PW-2 is Dr . B.K. Sharma. He states that he is running a private diagnostic center at Nangal since 1992. According to him he had examined the respondent-wife on 1.9.1999 and thereafter issued a report, Ex.P-2 which is signed by him. On being shown the document Ex.P-2, he states that the same has been tampered at two places. He states that as per film Ex. P-3 and as per his original remarks on the repeat the period of gestation of the foetus was 26 weeks and one day when he examined the petitioner. The figure 26 has been tempered and changed to 16. He states that he cannot give the name of the husband of Parveen Kumari examined by him. According to him the tampering was done after he had issued the certificate. He has also denied the suggestion that film, Ex.P-3 is not relatable to the report, Ex. P-2.; 10. PW-3 is one Chanan Ram, Constable in Indo Tibet Border Police. He has produced the leave record of the petitioner for the period 12.6.1998 to 27.12.1999 which has been exhibited as Ex.PW-3/A. In cross-examination he stated that if any official without sanction proceeds on leave, he can be court martialled. 11. PW-4 is the husband himself. According to him in 1998 he had visited his house on 12.6.1998 and stayed there till 12.8.1998 and thereafter joined his duties. According to him thereafter he went to his village only on 25.5.1999 when he stayed there upto 30th May, 1995. According to him the wife never visited Srinagar during this period. He then states that he visited his house on 12th October, 1999 when he observed that the wife was pregnant. He states that she was not pregnant from him. On 11.11.1999 she grave birth to a male child in the nursing home. According to him the wife never visited Srinagar during this period. He then states that he visited his house on 12th October, 1999 when he observed that the wife was pregnant. He states that she was not pregnant from him. On 11.11.1999 she grave birth to a male child in the nursing home. When he had enquired from his wife how she had become pregnant, she informed him that she had got her ultra sound done at Sutlej Diagnostic Centre and then she had handed over the report, Ex.P-2. Since he was suspicious that the child was not his, he went to the doctor who had conducted the ultra sound, who told him that the cutting on the said report had not been made by him. The husband states that the child born on 11.11.1999 is not his. He also states that he has never condoned this act of the wife. In cross-examination he has been questioned with regard to his memory and he has been asked the various dates fixed in the case and he has given correct answers with regard to the dates fixed in the case. He states that in 1999 he had visited his house thrice. He also admits that he had accompanied his wife when she gave birth to the male child on 11.11.1989. He has denied the suggestion put to him that he in connivance with the doctor has prepared the ultra sound report, Ex.P-2. 12. RW-1 is the wife. She states that her husband used to visit the village 5 to 7 times a year and he used to come home on annual leave, casual leave, earned leave, medical leave. She states that the husband used to visit his native village every 2-3 months and that every time he visited the house he would have sexual intercourse with her. She states that in addition to visiting the house on leave the husband used to come on furlough. She states that in the year 1998 her husband visited the village 5 to 7 times. She also states that similarly in the year 1999 her husband came on several occasions on various types of leaves as mentioned above. She has admitted the birth of male child, but according to her he is the son of the petitioner. In cross-examination she has admitted that she had got the ultra sound done before the child was born. She also states that similarly in the year 1999 her husband came on several occasions on various types of leaves as mentioned above. She has admitted the birth of male child, but according to her he is the son of the petitioner. In cross-examination she has admitted that she had got the ultra sound done before the child was born. According to her this ultra sound was got done by the husband and if there is any mistake, then the husband in connivance with the doctor has got prepared this false report. In cross-examination she admits that the husband came home on 12.6.1998 till 12.8.1998 and thereafter he came on 25.5.1999 till 30.5.1999. Then she volunteers that he had come before that also. She has admitted that in the year 1998 she had lodged an FIR against the husband. In cross-examination she admits that before the child was born, she used to visit Dr. Suresh regularly. She also admits that Dr. Suresh had asked her to get the ultra sound done at Nangal. She also admits that on 1.9.1999 he had got the ultra sound conducted when her sister-in-law (brother's wife) was accompanying her. She admits that when the ultra sound was conducted the husband was not with her. According to her the husband had written a letter to her that she should get the ultra sound conducted. She admits that Exts. P-2 to P-3 relate to her ultra sound. She has, however, denied the suggestion that two cuttings in Ex. P-2 have been made by her. According to her this ultra sound report was with the husband and he may have made cuttings in the same. She has denied the suggestion that from August, 1998 to May, 1999 the husband never visited the village. She has also denied the suggestion that the male child born to her is not from the loins of the husband. 13. When the entire evidence and the documents placed on record are gone through carefully, it is clear that it was the wife who had got the ultrasound done. At that time her husband was not present. When she got ultrasound done on 1.9.1999, the gestation period of the foetus was shown to be 26 weeks and 1 day, i.e. 183 days. This would take the date of conception to 1st or 2nd March, 1991. The male child was born on 11.11.1999. At that time her husband was not present. When she got ultrasound done on 1.9.1999, the gestation period of the foetus was shown to be 26 weeks and 1 day, i.e. 183 days. This would take the date of conception to 1st or 2nd March, 1991. The male child was born on 11.11.1999. The normal period of a healthy delivery is 280 days This will take the date of conception back to 4th February, 2001. Even if some leeway is made on either side, the conception took place sometimes in January, February or March, 1999. 14. The case of the husband is absolutely clear and unambiguous that after going back from has annual leave on 12th August, 1999, he visited his village only on 25th May, 1999. If this version is accepted to be correct then obviously the child born to the wife on 11.11.1999 is not that of the husband. When a husband during the validity of the marriage asserts that the child born to his wife is not his, then it is for him to prove that he did not have any access to his wife. Reference in this behalf may be made to Section 112 of the Indian Evidence Act which reads as follows : 112. Birth during marriage, conclusive proof of legitimacy,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. 15. It is thus clear that the burden of proof is on the husband. The husband has tried to discharge this burden by examining various witnesses and by his- own evidence. He in his evidence has clearly stated that he visited his house after August, 1998 only on 25th May, 1999. Though a general suggestion was put that he had in between visited the house, no specific suggestion was put to him that he had visited his house and had sexual intercourse with the wife in the months of January, February or March, 1999. Though a general suggestion was put that he had in between visited the house, no specific suggestion was put to him that he had visited his house and had sexual intercourse with the wife in the months of January, February or March, 1999. Even the wife in her statement docs not state that the husband had visited her and had sexual intercourse with her during these three months. When the husband had made specific averment with regard to the dates when he had visited the house, the general assertion of the wife that he used to come in between also cannot be accepted at its face value. 16. One must keep in view the fact that the husband is a member of the Indo Tibet Border Police. This is an armed force. The measure of discipline in such like forces is much greater than in other jobs. He was posted in Srinagar. His native village is in Una. The husband could not have visited the native village without leave. Even to travel from Srinagar to Una, it will take more than 24 hours. The travelling time from Srinagar to Una and back itself is about 48 hours. In these circumstances the wife should have summoned the record from the office of the husband to show that he had taken leave in the months of January, February or March, 1999. 17. Another factor which has to be taken into consideration while considering the evidence of the wife is with regard to the ultrasound. Initially the suggestion put to PW-2 Dr. B.K. Sharma and to the husband is on the lines that the wife had never got ultrasound done and that the doctor in connivance with the husband had issued the tampered ultrasound certificate. The wife when she. appeared in the witness box clearly admitted that in fact she had got this ultrasound done. She also admitted that she was under regular treatment of one Dr. Suresh, who had asked her to get ultrasound done. Therefore, there is no question of the husband taking her to get the ultrasound done. Admittedly the husband was not with her when she got the ultrasound done. The question then arises as to who changed the figures 26 weeks to 16 weeks. The ultrasound report was in possession of the wife. Therefore, there is no question of the husband taking her to get the ultrasound done. Admittedly the husband was not with her when she got the ultrasound done. The question then arises as to who changed the figures 26 weeks to 16 weeks. The ultrasound report was in possession of the wife. The version of the husband that when he asked her how she had become pregnant she had given the report which would show that she had been pregnant for about 16 weeks. This way she was trying to convince the husband that she had got pregnant when he had visited the matrimonial home in May, 1999. There is no reason why the husband should have made the tampering in the ultrasound report. The only person who could have tampered the ultrasound report and who had reason to do so was the wife. It is thus clear that the wife had tampered with the ultrasound report and, therefore, she wanted to hide something. 18. Another factor which goes against the wife is that when the husband moved the application in this Court for getting the D.N.A. test done, she just stopped coming to the court. She in fact did not reply to the letters of her counsel. The obvious inference is that she wants to avoid the D.N.A. test being conducted on the child. If the entire evidence is considered together, it is clear that the male child born to the respondent-wife in November, 1999 is not from the loins of the husband. She obviously, therefore, had sexual intercourse with some other person. This person may or may not be respondent No. 2. There is no evidence to connect respondent No. 2. However, the fact remains that she has had sexual intercourse with some person, other than the husband. This act of hers has not been condoned. The husband, is, therefore, entitled to a decree of divorce. 19. In view of the above discussion the appeal is allowed. There is no evidence to connect respondent No. 2. However, the fact remains that she has had sexual intercourse with some person, other than the husband. This act of hers has not been condoned. The husband, is, therefore, entitled to a decree of divorce. 19. In view of the above discussion the appeal is allowed. The judgment of the learned District Judge, Una in H.M.A. Petition No. 65 of 1999, decided on 4.6.2003 is set aside and the petition under Section 13 of the Hindu Marriage Act filed by the husband is allowed and the marriage between the husband, Kushal Kumar and the wife, Parveen Kumari is dissolved and a decree of divorce is granted to the husband on the ground that after the solemnization of the marriage the wife has had voluntarily sexual intercourse with some person, other than the husband. 20. The appeal is allowed in the aforesaid terms with no order as to costs. Decree sheet be drawn up accordingly.