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2009 DIGILAW 794 (MP)

Poorti @ Usha Sharma v. Vinay Kumar

2009-07-09

A.K.SHRIVASTAVA, A.P.SHRIVASTAVA

body2009
JUDGMENT A.P. Shrivastava, J. -- 1. Appellant/defendant (wife) has preferred this appeal under section 28 of the Hindu Marriage Act, 1955 (for short "the Act, 1955") against the judgment and decree of divorce dated 30.4.2008 passed by the Additional District Judge, Ambah, district Morena in Civil Suit No.67-A/06 HMA whereby the petition filed by the respondent/plaintiff (husband) under section 13 of the Act, 1955 is allowed. 2. The undisputed facts are that marriage of the appellant and the respondent was solemnized on 22.11.2004 at Ambah as per the Hindu rites. The appellant has remained with the respondent for eight days during the period of solemnization of the marriage. On 22.2.2005, the respondent came on leave and remained till 22.4.2005 with the appellant. The respondent again came on leave on 12.10.2005 and remained with the appellant till 5.11.2005. 3. The case of the respondent is that he moved a petition before the trial Court under section 13 of the Act, 1955 on the ground that he was married with the appellant on 22.11.2004 and remained with the appellant for eight days during the solemnization of the marriage. He is in service in BSF and therefore could not get the appellant at the place of posting. On 22.2.2005, the respondent came on leave and remained up to 24.4.2005. The respondent again came on leave on 12.10.2005 and remained with the appellant upto 5.11.2005. On 19.5.2006, the appellant gave birth to a male child in Gupta Nursing Home, Ambah. When on 15.7.2006 the respondent came on leave in the village, then he came to know that the appellant has given birth to a male child. The respondent alleges that the child did not belong to him while it has been born with the sexual intercourse with any other person and falls within the purview of adultery as mentioned in sub-clause (1) of section 13 of the Act, 1955. Earlier to this, on 1.5.2006, the appellant underwent from ultrasound X-ray and in the ultrasound report, the pregnancy of 38-39 weeks has been shown and as he has denied the paternity of the child. Hence, divorce petition was filed by the respondent. 4. The appellant filed the written statement denying the allegations of the respondent except the admitted facts which are mentioned as aforesaid. Hence, divorce petition was filed by the respondent. 4. The appellant filed the written statement denying the allegations of the respondent except the admitted facts which are mentioned as aforesaid. According to the appellant, she has remained for ten days at her in-laws house with plaintiff and discharged her all matrimonial duties. The appellant and respondent are the residents of one village Hingaoli and the house of both the families are also situated nearby town Ambah therefore whenever plaintiff used to come in village Hingaoli or Ambah, appellant was having always free access and remained with the defendant and the defendant performed her all matrimonial duties. It is denied that the appellant refused to discharge her matrimonial duties. It is pleaded that the appellant became pregnant from the sexual intercourse with the respondent and gave birth to a male child on 19.5.2006. The allegations of adultery are false and have been made with the collusion of the parents of the respondent with a view to get rid of from the defendant. It is also denied that ultrasound was conducted on 1.5.2006. The ultrasound report of the pregnancy is concocted with the collusion of respondent, his brother and parents. 5. On the basis of the pleadings, the trial Court framed issues, evidence was recorded and on the affirmative finding on issue No.1 regarding illicit relation with other person, petition for divorce under section 13 of the Act was allowed. 6. Being aggrieved by the impugned judgment, it is submitted that the decree of divorce as granted by the lower Court is illegal and without jurisdiction and has been passed against the settled principles of law. 7. It is contended that the respondent is though in service but was regularly coming from time to time and having cohabitation with the appellant and child was born is of the respondent. The allegation of adultery made by the respondent is not proved. 8. Regarding paternity of child, section 112 of the Evidence Act is attracted which lays down as under : "S.112. Birth during marriage, conclusive proof of legitimacy. The allegation of adultery made by the respondent is not proved. 8. Regarding paternity of child, section 112 of the Evidence Act is attracted which lays down as under : "S.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." 9. In this case, the main question for decision before us is that whether the presumption available under section 112 of the Evidence Act has been disapproved by the respondent by legal evidence. 10. In the definition of section 112 of the Evidence Act, the word "conclusive proof" has occurred which has been defined under section 4 of the Evidence Act that when one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. 11. As the decree of divorce is granted on the ground of adultery as contained in sub-rule 1 of section 13 of the Act, 1955, we will consider the factual and legal aspect of the impugned order. 12. In this case, the marriage of the appellant with the respondent is an admitted fact and this is also an admitted fact that the birth of the child has taken place on 19.5.2006. As per the plaint allegation, after the marriage the respondent visited the village during the period of leave and his last visit before the birth of the child was between 12.10.2005 to 5.11.2005 and the child was born on 19.5.2006 although the ultrasound report dated 3.5.2006 EX.P-1 is denied by the appellant. But as per the report on 3.5.2006, the pregnancy of the appellant was of 38-39 weeks and the child was delivered on 19.5.2006. 13. But as per the report on 3.5.2006, the pregnancy of the appellant was of 38-39 weeks and the child was delivered on 19.5.2006. 13. The contention of the respondent is that the child was born due to illicit relations of the appellant with some other person because when he came home on leave prior to the birth of the child as stated above the appellant was living with her parents and had not cohabited with him. In affidavit, the respondent admitted those facts which are admitted in the pleadings but also stated that after the marriage he carne on leave from 24.2.2005 to 24.4.2005 and when the appellant complained of pain in the stomach, thereafter, she was aborted on 15.3.2005 at Vidyawati Hospital and Research Centre, Morena. The report is EX.P-2. It is also stated on affidavit that he came home on leave again to his village from 14.10.2005 to 3.11.2005. During that period appellant had not lived with him. This is the crucial date for deciding the appeal because according to the respondent he returned to duty on 3.11.2005 and on 14.7.2006 when he again came on leave he learnt about the birth of a male child and the son is not born with the respondent. 14. Rambabu Sharma (PW2), the father of the respondent was also examined. He also stated the similar fact which has been stated by the respondent. But in para 6 of his cross-examination he categorically stated that he has not seen his daughter-in-law with some other person and not blamed for her character. 15. On the other hand, the appellant also filed an affidavit and apart from the admitted fact she denied that she was living separately and also stated that the appellant and the respondent are both belong to the same village. She used to live with the respondent when he used to come on leave and admitted that she performed all the material rites with the respondent. She states that the abortion took place but it was with the consent of the respondent. Further, she stated that the child was born in presence of the family members of the respondent and it was begotten by cohabitation with the respondent and not with any illicit relationship with any other person. In cross-examination, she stated that she got pregnant between 9-10 October, 2005 and it was due to cohabitation with the respondent. Further, she stated that the child was born in presence of the family members of the respondent and it was begotten by cohabitation with the respondent and not with any illicit relationship with any other person. In cross-examination, she stated that she got pregnant between 9-10 October, 2005 and it was due to cohabitation with the respondent. She deposed that neither the sonography was performed nor had signed the document Ex.P-6 which is related to the sonography. 16. To resolve such type of controversy, provisions of section 112 of the Indian Evidence Act have been made which lay down that the law presumes strongly in favour of legitimacy of off-spring, as it is birth that determines the status of a person. This section embodies the rule of law that a child born during the continuance of a valid marriage or during two hundred and eighty days (i.e. within the period of gestation) after its dissolution shall be conclusive proof that it is legitimate unless it is proved by clear and strong evidence that the husband and wife did not or could not (e.g. for absence, want of opportunity, illness, impotency, etc.) have any access any time when the child could have been begotten. 17. Section 112 is based on the well known maxim pater est quem nuptioe demostrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid and that every person is legitimate. Marriage on affiliation may be presumed, the law in general presuming against vice and immorality. It is rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. (Goutam Kundu v. State of West Bengal and another, reported in AIR 1993 SC 2295 ). 18. It is rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. (Goutam Kundu v. State of West Bengal and another, reported in AIR 1993 SC 2295 ). 18. Counsel for the appellant relied on a decision rendered by the apex Court in the case of Banarsi Dass v. Teeku Dutta (Mrs) and another, reported in (2005)4 SCC 449 , in which it is observed by the apex Court that conclusiveness of presumption under section 112 cannot be rebutted by DNA test. Proof of non-access between the parties to marriage during the relevant period is the only way to rebut that presumption. It was also observed that presumption under, that a child born during lawful wedlock is legitimate, and that access occurred between the parents is rebuttable. Burden to rebut that presumption lies on the person questioning the legitimacy. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. 19. Counsel for the appellant also relied on Smt. Dukhtar Jahan v. Mohammed Farooq, reported in AIR 1987 SC 1049 , in this case the legitimacy of a child was discussed. It is held that on the sole ground that the child had been born in about 7 months' time after the marriage it could not be concluded that the child should have been conceived even before the marriage. Giving birth to a viable child after 28 weeks' duration of pregnancy is not biologically an improbable or impossible event. The refusal of the claim for maintenance for the child was therefore improper. It was also against the rule of evidence contained in S.112 of the Evidence Act. The wife was a rustic and illiterate woman and as such her opinion that the child was not born prematurely could suffer from error of judgment. Counsel for the appellant also relied on Devesh Pratap Singh v. Smt. Sunita Singh, reported in 1999(11) MPJR 154, Manjeet Singh v. Meena @ Manpreet Kaur and others, reported in 2001(II) MPWN 143=2001(2) MPU 455, and Mangilal v. Saligram and others, reported in 2009(1) JLJ 13 . 20. Counsel for the appellant also relied on Devesh Pratap Singh v. Smt. Sunita Singh, reported in 1999(11) MPJR 154, Manjeet Singh v. Meena @ Manpreet Kaur and others, reported in 2001(II) MPWN 143=2001(2) MPU 455, and Mangilal v. Saligram and others, reported in 2009(1) JLJ 13 . 20. Regarding the scope of section 112 of the Evidence Act, learned counsel for the appellant relied on Dhedu Sheoram v. Mst. Malhanbai Dheru, reported in AIR 1966 MP 252 , in which it is held as under : "4. As the child was born and begotten at a time when the marriage between the appellant and the respondent was subsisting, section 112, Evidence Act is attracted. It is an irrebuttable presumption of law in a civilized nation that a person born during the continuance of a valid marriage between his mother and a man is the legitimate child of that man. Pater est quem nuptioe demonstrant (he is the father whom the marriage indicates). It is a rule of prudence and is also in accordance with the rule of natural justice that a child born of a marriage must be deemed to be legitimate and it throws on any person, who is interested in making out the illegitimacy, the whole burden of proving it. The presumption contemplated under section 112, Evidence Act, is a conclusive presumption of law, the only thing which can displace it is proof of a particular fact mentioned in it, that is, non-access between the parties to the marriage at a time when the child could have been begotten. The person alleging illegitimacy must conclusively establish that the husband had no opportunity of intercourse with the wife, at a time when according to the ordinary course of nature, the child must have been begotten. Non-access may be proved by means of such legal evidence as is admissible to prove a physical fact, but every presumption has to be made in favour of the legitimacy of the child, who is found to have been born in lawful wedlock and the onus of proving non-access or that of illegitimacy is heavy on the party who alleges it. The law requires positive proof of a negative fact, i.e., non-access between the parties to the marriage. The mere fact that they were living apart in different houses is insufficient to establish non-access. The law requires positive proof of a negative fact, i.e., non-access between the parties to the marriage. The mere fact that they were living apart in different houses is insufficient to establish non-access. The presumption of legitimacy is one of the strongest presumptions of which the law is cognizant." 21. On the other hand, learned counsel for the respondent supported the judgment of the trial Court and it is submitted that the trial Court accepted the petition of the respondent on the ground of adultery. In this regard, he relied on Rajendra Agrawalv. Smt. Sharda Devi, reported in 1993 JLJ 649 = AIR 1993 MP 142 . He further relied on Smt. Didde Sundara Mani and another v. Didde Venkata Subbarao and another, reported in 2005 CriLJ 3618. 22. In this case, it is the admitted position that the respondent carne to village by taking leave from 24.10.2005 to 3.11.2005. Although he denied that in this period the appellant was living with him but this fact was rebutted by the appellant in her statement and she stated that she lived with the respondent and also performed her marital rights alongwith the respondent and during this period the child was conceived and she delivered a male child on 19.5.2006. The statement of the respondent that when he came to village on 19.7.2006 he knew about the delivery of a male child does not appear to be correct because as per the material available on record the appellant was taken for ultrasound by the brother of the respondent on 3.5.2006. It is difficult to accept this contention because the ultrasound was conducted by the brother of the respondent and he cannot do so without the consent of the respondent. Further, letter Ex.D-1 which was addressed by the respondent to the appellant on 23.4.2006 happily worded and it shows no controversy between the parties. 23. It is an admitted position that the respondent was serving in BSF where strict discipline in comparison to other services is required and it is difficult to leave without the permission of the authorities but the respondent has not categorically proved the daily attendance register nor other documents which could show that he never left the place of duty. The documents Ex.P-3 and P-4 are not duly proved. More the less, the leave which was shown in the documents is admitted by the parties. 24. The documents Ex.P-3 and P-4 are not duly proved. More the less, the leave which was shown in the documents is admitted by the parties. 24. From the above discussion and the reading of section 112 of the Evidence Act, it appears that there is a conclusive presumption that a child born during the wedlock is the son of the husband. The presumption can be dispelled only by proof of non-access. Sectionl12, 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 cohabitation. In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana, reported in AIR 1954 SC 176 , the term access has been defined by the apex Court and it has been held that access does not imply actual cohabitation. It means no more than "opportunity of intercourse". It is a rebuttable presumption of law under section 112, Evidence Act that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. Thus, following is the position as to permissibility of blood test to prove paternity. (1) That Courts in India cannot order blood-test as a matter of course; (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained; (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act; (4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman; (5) No one can be compelled to give sample of blood for analysis. Gautam Kuntuv. State of West Bengal and another, reported in AIR 1993 SC 2295 . 25. Therefore, looking to the evidence adduced by the parties and finding recorded by the trial Court regarding issue No.1, it appears that it is not based on legal evidence but is based on presumption. The respondent could not rebut presumption regarding non-access with the appellant. State of West Bengal and another, reported in AIR 1993 SC 2295 . 25. Therefore, looking to the evidence adduced by the parties and finding recorded by the trial Court regarding issue No.1, it appears that it is not based on legal evidence but is based on presumption. The respondent could not rebut presumption regarding non-access with the appellant. Hence, the finding of the impugned judgment and decree is hereby set aside and the appeal is allowed accordingly. The application filed by the respondent-husband under section 13 of the Hindu Marriage Act is hereby dismissed. No order as to costs.