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2006 DIGILAW 1534 (PNJ)

Lakhbir Kaur v. Bikkar Singh

2006-04-19

HEMANT GUPTA

body2006
Judgment HEMANT GUPTA and j. JJ. 1. The wife has filed this appeal against the judgment and decree passed by the learned Additional district Judge,hoshiarpur whereby the marriage has been dissolved between the parties on the ground that the appellant has sexual intercourse with another person other than the spouse under Sec.13 (1) (i) of the Hindu marriage Act. 2. The marriage between the parties was solemnised on July 26,1991 and a female child was born out of the wedlock on April 22,1994. As per the case of the respondent, he worked at Dubai and left India on February 28,1994 and came back India only on October 13,1996. However, the appellant gave birth to a male child on April 10,1995 i. e.13 months and 13 days after the departure of the husband for Dubai. It was thus alleged that the appellant has given birth to a child when the husband has no occasion of physical contact with the appellant during the period from February 28,1994 to October 13,1996. 3. The appellant wife has controverted the allegations and stated that the child born on April 10,1995 was conceived from the loins of the respondent and that he had been visiting India in the year 1994,1995 and 1996. In the written statement itself she has stated that she is ready to undergo D. N. A. Test to determine the paternity of the child born on April 10,1995. 4. The learned trial court passed a decree for dissolution of marriage primarily relying upon the entries in the passport Exs. P-4 and P-5 to the effect that the respondent left India on February 28,1994 and came back to india only on October 13,1996. The learned trial court was influenced by the fact that the present appellant has failed to make the payment of the expenses within the time allowed by the court for D. N. A test and,therefore, for the negligence of the wife regarding non payment of charges, the husband cannot be blamed. 5. The learned trial court was influenced by the fact that the present appellant has failed to make the payment of the expenses within the time allowed by the court for D. N. A test and,therefore, for the negligence of the wife regarding non payment of charges, the husband cannot be blamed. 5. Before adverting to the respective stands of the parties on the merits of the controversy, it will be relevant to point out that this court while considering an application for ad-interim maintenance under Sec.24 of the Hindu Marriage Act, passed an order on April 29,2002 directing the respondent to file an affidavit as to whether he is agreeable for the D. N. A. test to be carried out and that he shall incur expenditure for the test. 6. Subsequently, the learned counsel for the respondent sought time to comply with the order on May 15,2002. However, the respondent had not complied with the order till 29th May 2002 and,therefore, the court sought the presence of the respondent through bailable warrants. However, on July 24,2002, Sh. G. S. Savra, who was representing the respondent sought the permission of the court to withdraw from the case and he was allowed to do so. However, Mr. Vishal Sharma,advocate who appeared for the respondent stated that the respondent has left for dubai on April 16,2002. Thereafter, this court decided the application for grant of maintenance pendente lite and litigation expenses on September 5,2002. 7. I have heard learned counsel for the parties and have gone through the record of the case. Ex. P-4 is a photo copy of the passport, which was valid till February 26,1996. However, the last entry which can be identified in the said passport is that of february 28,1994 i. e. of immigration at Indra Gandhi international Airport, New Delhi departure. However, Ex. P-5 is a passport, which is valid till January 20,2006. However, the complete photocopy is not on record. It has departure stamp of October 11,1996 from Dubai at page 18 and that of a arrival stamp at page 32 at indra Gandhi international Airport, New Delhi of October 13,1996. Pages 20 to 31 of the said passport are not on record. 8. However, the complete photocopy is not on record. It has departure stamp of October 11,1996 from Dubai at page 18 and that of a arrival stamp at page 32 at indra Gandhi international Airport, New Delhi of October 13,1996. Pages 20 to 31 of the said passport are not on record. 8. Thus, the finding recorded by the trial court that the respondent had not visited India after he left for Dubai on February 28,1994 till his arrival on October 13,1996 is not supported by evidence on record. On the other hand the wife has clearly stated that the respondent has visited India in the years 1994,1995 and 1996. The passport entries are not complete. The trial court has primarily relied upon the entries in the passport to return a finding that the passport entries conclusively proved the lack of physical contact between the parties for 13 months and 13 days , which is not complete and thus not reliable. 9. The stand of the wife from the stage of the written statement itself was that she was ready to undergo d. N. A. test. She moved an application on November 18,1998 for directing the respondent to share the expenses. The court passed order on January 19,1999 to the effect that she shall bear the expenses of the D. N. A. test. 10. Subsequently, the wife moved another application on february 27,1999 to the effect that the testing laboratory at Hyderabad has asked the parties to be present at hyderabad in view of the fact that blood sample should reach within 12 hours of taking the sample. The said application was declined by the trial court by observing that the respondent wife is unnecessarily delaying the proceedings and has not taken any steps to comply with the earlier order. The trial court further ordered that if within the next 60 days the respondent wife failed to get the blood sample of the husband tested from Hyderabad centre within 60 days then the order passed by the court on January 19,1999 will come to an end. The court ordered that if the petitioner is to be physically present at hyderabad, his expenses will be deposited by the respondent within one month. 11. The court ordered that if the petitioner is to be physically present at hyderabad, his expenses will be deposited by the respondent within one month. 11. Subsequently, wife moved another application on june 8,1999 whereby she averred that she has got the tickets booked for journey from Delhi to Hyderabad by dakshan Express for June 21,1999. The appellant also booked tickets for journey from Jallandhar to New Delhi by amritsar New Delhi Express for June 21,1999. However, shri T. S. Sohi, learned counsel for the husband stated that he could not contact his client as he would come in court on the date fixed i. e July 20,1999. The court then directed the wife to take dasti summons for serving the husband at his residence after taking Process Server from dasuya. Thus, it is apparent that the appellant has taken all possible steps for D. N. A. test but it is the respondent who has failed to get the D. N. A. test conducted. She has complied with the directions given by the trial court by making the journey arrangements. The conduct of the respondent was one of avoiding the D. N. A. test on one or other pretext. However, it is clear from the interim order passed by this court that the respondent was given opportunity to get the D. N. A. test at Hyderabad but instead he left for Dubai. Thus it is apparent that the respondent is avoiding the D. N. A. test. 12. Thus it is apparent that the wife was always ready and willing for getting the D. N. A. test to determine the paternity of the child. She has taken all possible steps to facilitate such test but the husband has avoided the test. The onus to prove adultery was on the husband and,therefore, in the absence of test it is the husband who will fail in seeking the dissolution of marriage on the ground of adultery 13. In view of the above, the findings recorded by the learned trial court are not sustainable as they suffered from material illegality and irregularity. Consequently, I set aside the judgment and decree passed the trial court and allow the present appeal and dismiss the petition for dissolution of marriage.