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2008 DIGILAW 1337 (MP)

RAMROOP RATHORE v. RAJKUMARI

2008-11-18

A.P.SHRIVASTAVA, ARUN MISHRA

body2008
Judgment ( 1. ) APPELLANT who is the husband of the respondent filed this appeal under Section 19 of the Family courts Act, 1984, against the impugned judgment and decree dated 14-12-2000 passed by the VIIth Additional District Judge in Civil Suit No. 218a/99 HMA by which the petition under Section 13 of the Hindu Marriage Act filed by the appellant has been dismissed. ( 2. ) IT is not in dispute that the marriage of the appellant with the respondent took place on 11-7-1994. ( 3. ) THE appellant filed a petition for dissolution of marriage on the ground that after eight days of the marriage, the respondent left the house of the appellant. On 3-9-1999, appellant along with father-in-law and relatives went to take her back from his in-laws house. But the respondent refused to come with him as she did not like the appellant. Appellant also got information that the respondent is having illicit relationship with other man and also having a child of one year old. Appellant filed the petition for dissolution of marriage mainly on the ground that the respondent is not willing to live with him and she is having illicit relationship with the other man and also gave birth to a child due to illicit relationship of the respondent. ( 4. ) RESPONDENT in her written statement denied the allegation of the appellant and it is pleaded that she was deserted by the appellant on 24-8- 1998 on account of non-fulfillment of the demand of dowry. ( 5. ) THE trial Court framed the issues and after taking evidence dismissed the petition of the appellant on the ground that it is not established that the parties are living separately for more than five years and further it is also not proved that the respondent was having illicit relationship with other man and also conceived an illegitimate child. The trial court held that due to non-fulfillment of the demand of dowry, the respondent was deserted by the appellant. ( 6. ) BEING aggrieved, the impugned judgment has been challenged on the ground that the trial Court has not appreciated the evidence adduced by the parties properly and decided the issues against him. ( 7. ) ARGUMENTS at length heard. ( 8. ( 6. ) BEING aggrieved, the impugned judgment has been challenged on the ground that the trial Court has not appreciated the evidence adduced by the parties properly and decided the issues against him. ( 7. ) ARGUMENTS at length heard. ( 8. ) RAMROOP (P. W. 1) in his statement admitted that the marriage with the respondent was performed on 11-7-1994 and thereafter she remained with him only for eight days and thereafter she never came to his house although during the period of six years he tried to take her back to him but the respondent refused to live with him. ( 9. ) THE other witnesses Lacchiram (P. W. 2) and Mahendra Singh (Gurjar (P. W. 3) supported the version of the appellant in para 7 of the judgment the trial Court observed that the appellant has not examined his father or near relative and examined Lacchiram (P. W. 2), a distant relative and Mahendra singh Gurja (P. W. 3) who is a farmer who was working with the appellant. It is also observed by the trial Court that regarding desertion, it is not established by evidence adduced by the appellant that when and how many times he went to take the respondent to his house. ( 10. ) IN rebuttal, respondent Rajkumari (D. W. 1) stated that after the marriage, she remained with the appellant for nine days and thereafter used to come to the house of the appellant till 24-10-1999. On 24-10-1999, she was ousted from the house of the appellant due to non-fulfillment of the desire of dowry. She also stated that she was willing to live with the appellant but he did not take her back to his house. Other witnesses namely Ramnath (D. W. 2) supported the version of the respondent. ( 11. ) UNDER the Indian Evidence Act, 1872, s. 112, there is a presumption in favour of legitimacy of a child born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried. The presumption can only be rebutted if it is shown by competent evidence that the parties to the marriage had no access to each other at any time when the child could have been begotten. The presumption can only be rebutted if it is shown by competent evidence that the parties to the marriage had no access to each other at any time when the child could have been begotten. The Apex Court in Gautam Kundu v. State of W. B. reported in AIR 1993 SC 2295 held that in view of section 112, Evidence Act there is a conclusive presumption that a child born during wedlock or within 280 days from the date of termination of matrimonial tie or death of husband of lady is the son of the husband or ex-husband as the case may be. The presumption can be dispelled only by proof of non access. Section 112, Evidence Act requires the party disputing the paternity to prove non-access in order to dispel the presumption. "access" and "non-access" mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual co-habitation. ( 12. ) IN the light of the above discussion and the evidence adduced by the parties, it is apparent that the testimony of Ramroop (P. W. 2), Rajkumari (D. W. 1) and Kusum (D. W. 3) are material in this case. The testimony of Ramroop (P. W. 1) is not credible on the point that after marriage, the respondent remained with the appellant only eight days and the marriage was not consumed while the testimonies of Rajkumari (D. W. 1)and Kusum (D. W. 3) are more reliable. According to Rajkumari (D. W. 1), she remained, nine days with the appellant after marriage and she visited the residence of her husband till 24-10-1999 when she was ousted from the house of the husband. As per testimony of Ramroop (P. W. 1), he visited the house of the respondent on 3-9-1999 to take her back to his house but she refused and he knew that she has also delivered a child for which denied his paternity. But this fact is not proved by the evidence and from perusal of the evidence of both the sides, the presumption under Section 112 of the Evidence Act will go against the appellant. ( 13. ) THEREFORE, the finding recorded by the trial Court is affirmed regarding dismissal of the petition of dissolution of marriage filed by the appellant because it is based on legal evidence. Hence, no interference is called for. Appeal is devoid of merits and consequently it is hereby dismissed. ( 13. ) THEREFORE, the finding recorded by the trial Court is affirmed regarding dismissal of the petition of dissolution of marriage filed by the appellant because it is based on legal evidence. Hence, no interference is called for. Appeal is devoid of merits and consequently it is hereby dismissed. No order as to costs. Appeal dismissed.