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2024 DIGILAW 261 (MP)

Rahul Sharma v. Reetu Sharma

2024-03-12

MILIND RAMESH PHADKE, RAVI MALIMATH

body2024
JUDGMENT 1. The instant appeal under section 28 of the Hindu Marriage Act, 1955 is directed against the judgment and decree dated 27.1.2010 passed by the Sixth Additional District Judge (Fast Track Court), Bhind in HMA case No.19 of 2009, whereby an application preferred under section 11 and 12 of the Hindu Marriage Act by the appellant seeking dissolution of marriage either void/voidable has been rejected. 2. Short facts of the case are that the marriage was solemnized between the appellant and the respondent on 2.5.2009 as per the Hindu religious rites and customs at village Urai Road Mihona Tehsil Lahar District Bhind. After the marriage, the respondent-wife lived with the appellant-husband till 8.5.2009. Thereafter, she went to her maternal home and returned back to her matrimonial home on 11.5.2009 and lived there only for 7 days. During that period the respondent-wife had denied the appellant the marital happiness. The respondent-wife told the appellant-husband that she is already married to one Vivek Mishra, therefore, she cannot live with him and she gave the appellant a mobile No. 9753936690 of Vivek Mishra and made the appellant talk with him on the mobile, where Vivek Mishra told the appellant about the fact of his marriage with the respondent and he threatened the appellant not to have any marital relations with the respondent, otherwise the appellant-husband would have to face the consequences. Thereafter, when the appellant called the family members of the respondent-wife and informed them about the same, they gave understanding to the respondent-wife to live with the appellant but she refused to do so. Thereafter, the respondent-wife left her matrimonial home with ornaments and other articles and went to her maternal home and since then she is living with her parents. 3. At the time of marriage on 2.5.2009 the respondent was pregnant with the child of Vivek Mishra. Therefore, the appellant- husband has filed the petition under section 11 and 12 of the Hindu Marriage Act submitting that the respondent-wife and her family had committed a fraud with him, as no physical relation took place between them and the respondent-wife was already married to other person, namely, Vivek Mishra, which is against and in contravention of the Hindu religious rites and was pregnant from him, therefore the marriage is null and void/voidable in the eye of law. Though the notices were issued to the respondent-wife by registered post, even then she has not appeared during the trial. 4. Learned trial Court on the basis of the pleadings of the appellant framed issues. On behalf of the appellant-husband he examined himself as PW-1 and got examined his father Vijayraj Sharma as PW-2 and one Ram Autar Sharma as PW-3, wherein they all supported the case of the appellant-husband. During the pendency of the case, the respondentwife gave birth to a child on 4.12.2009 in the Public Health Centre Mihona District Bhind. The learned trial Court after appreciating the evidence available on record by the impugned judgment and decree dated 27/01/2010 dismissed the said application. Aggrieved by the aforesaid, the present appeal has been filed. 5. Learned counsel for the appellant while assailing the said order had contended that the trial Court has not examined the evidence both oral and documentary in its right perspective, thus, has erred in dismissing the application. It was further submitted that even though, the father of the appellant Vijayraj Sharma (PW-2) and Ram Autar Sharma (PW-3) had supported the case of the appellant (PW-1) the learned trial Court has dismissed the application, which is per se illegal. 6. Learned counsel for the appellant has further submitted that though the notices were issued to the respondent-wife by registered post, even then she did not appear in the trial. At the time of marriage on 2.5.2009 the respondent was pregnant with the child of Vivek Mishra but learned trial Court had not appreciated the said fact and had not passed the decree declaring the marriage either to be void or voidable. Thus, on the basis of aforesaid contentions, it was submitted that the present appeal deserves to be allowed and a decree of divorce should be passed in favour of the present appellant. 7. None for the respondent, even after service of notice. 8. Since the respondent-wife was ex-parte during the trial as well as no one has appeared on her behalf in the present appeal, the analysis of the facts of the present matter is to be visualized only on the basis of statements of appellant and his witnesses. 7. None for the respondent, even after service of notice. 8. Since the respondent-wife was ex-parte during the trial as well as no one has appeared on her behalf in the present appeal, the analysis of the facts of the present matter is to be visualized only on the basis of statements of appellant and his witnesses. From the statements of AW-1 as well as from the contents of the appeal, the fact which had been alleged is that prior to marriage itself the respondent-wife had married to one Vivek Mishra and from him she became pregnant and approximately within seven months of the marriage which took place on 2.5.2009, she gave birth to a boy on 4.12.2009. The aforesaid fact of respondent giving birth to a boy at Primary Health Center, Mihona District Bhind had been brought on record by the appellant by means of a paper dated 7.12.2009, in which the aforesaid fact was mentioned. The said piece of paper was neither a certificate issued by the Primary Health Center, Mihona, nor it had been proved by producing any register, wherein the entries thereof were made, nor any doctor has been examined to prove the factum of delivery. Further, if the said piece of paper stated to be a certificate of birth of a child then whether it was issued by a competent person has also not been proved and merely stating that the birth of the child has taken place within approximately seven months of the marriage, would not indicate that the respondentwife was pregnant prior to the marriage from some other person. Even otherwise, a baby born prematurely also survives. Also, there is nothing on record to show that the son was born out of cohabitation of respondent-wife with said Vivek Mishra. In the aforesaid regard, section 112 of the Indian Evidence Act can be taken resort of, which lays down as under :-- “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. This section is based on the principle that when a particular relation such as marriage, is shown to exist, then its continuance must prima facie be presumed until the contrary is proved. Accordingly, the fact that any person was born; (a) during the continuance of a valid marriage between his mother and any man, or be within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be a conclusive proof that he/she is the legitimate child of that man, unless the parties have no access to each other at any time when it could have been begotten, any one of aforesaid facts is sufficient to establish its legitimacy and shifts the burden of proof to the party seeking to establish the contrary. 10. The legislative intent behind section 112 of the Evidence Act is that once the validity of marriage is proved, then there is strong presumption about the legitimacy of the children born from the wedlock. The presumption of legitimacy is presumption of law, not a mere inference to be drawn by a process of logical reasoning from the fact of marriage and birth or conception during wedlock. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. This legal presumption is based on the principle, ‘odiosa et honest on sun in lege price sum end’, which means that nothing odious or dishonorable will be presumed by the law. So the law presumes against vice and immorality. In a civilized society it is imperative to presume the legitimacy of a child born during continuation of a valid marriage and whose parents “have access” to each other. However, where illegitimacy seems as common as marriage and legitimacy, a presumption of legitimacy cannot be drawn and legitimacy or illegitimacy will have to be proved like any other fact in issue. In other words, the presumption of legitimacy is that a child born of a married woman is deemed to be legitimate, and the person who says it is illegitimate has the burden of proving it. Over the disputes of maternity this section has no application. 11. Thus, the fact that the boy was legitimate or illegitimate, the burden lay upon the appellant which had not been discharged by adducing proper evidence, hence merely stating that he had no physical relation with her, cannot be accepted. Over the disputes of maternity this section has no application. 11. Thus, the fact that the boy was legitimate or illegitimate, the burden lay upon the appellant which had not been discharged by adducing proper evidence, hence merely stating that he had no physical relation with her, cannot be accepted. Thus, from the aforesaid facts and evidence, it cannot be said that the respondent-wife was pregnant from some other man at the time of marriage, which had rendered the marriage voidable as per section 12 of the Hindu Marriage Act. 12. Further, the declaration of the marriage between the two to be void as per section 11 is concerned, no evidence has been brought on record by the appellant to prove that prior to their marriage respondent was already married to one Vivek Mishra and also there is no proof that the consent of appellant was taken by deceiving and applying fraud upon him. Thus, on all the counts, the appellant had not been able to prove his case. 13. The findings arrived at by the learned trial Court in the aforesaid regard, cannot be faulted with. This Court thus, holds that since the appellant had not been able to prove his case, he is not entitled for getting the marriage declared void or voidable under section 11 or 12 of the Hindu Marriage Act. 14. Accordingly, the findings of the trial Court are hereby affirmed and the appeal is dismissed.