(1) This is an appeal by Smt. Mohinder Kaur against the judgment of the Additional District Judge, Ferozepore, granting a decree for divorce under S. 13 of the Hindu Marriage Act against her in favour of Narinder Singh respondent.
(2) The petition was filed by Narinder Singh against Mohinder Kaur for a decree of divorce or in the alternative for judicial separation. The petitioner stated that his marriage with Mohinder Kaur had taken placed on 4-4-1948 and the parties lived and cohabited together in village Sherawala, Police Station Dharamkot, District Ferozepore, and also in village Agwar Challan in Dharamkot; a female child was born to them in June 1949 and that the petitioner thereafter got employment in the police department at Ludhiana sometime in 1950 and remained there till the end of 1953.
Mohinder Kaur did not like the petitioner's taking up service in the police department and went away to her parents' house, but the child continued to live with the petitioner. It is then stated that Mohinder Kaur thereafter started living immoral life and began openly to have a liaison with Mohinder Singh son of Kaka Singh. This Mohinder Singh, it may be mentioned, was also impleaded a party to these proceedings. The petition then proceeds that Mohinder Kaur also conceived and gave birth to a female child as a result of her immoral life. This child however, died within 10 days of her birth at Bhularian.
(3) Mohinder Singh was served, but he did not choose to appear and the proceedings against him were ex parte. Mohinder Kaur, however, contested the petition denying the allegations of adultery against here and to have liaison with Mohinder Singh. She also denied having given birth to any child in 1951. She alleged that only one child was born to her who is the daughter from the petitioner and who is living with him. The learned Additional District Judge framed the following issues in the case:
1. Is the respondent living in adultery with Mohinder Singh, co-respondent and others
2. Did the respondent have sexual intercourse with co-respondent or anybody else besides the petitioner, if so, what is its effect
(4) After discussing the oral evidence, the trial Court considered the oral evidence produced by both sides to be vague. Relying on birth and death entries. Exhibits P. 1 and P. 2, however, the learned Additional District Judge felt inclined to believe that Mohinder Kaur had given birth to a child in 1951 and that the above birth and death entries related to that child.
(5) On appeal, it has been contended by the counsel for the appellant that Exhibits P. 1 and P. 2 do not establish that a child was born to Mohinder Kaur in 1951. It is also submitted that there is no reliable proof of adultery by the lady. The counsel has in support of his contention also referred me to R. C. Chamarette v. Mrs. P. E. Chamarette, AIR 1937 Lah 176, where Jai Lal J., observed that in a divorce case where the paternity of the infant is in question, neither husband nor wife is permitted to give evidence of non-inter-course after marriage to bastardise a child born in wedlock. For this view the learned Judge relied on Russel v. Russel, 1924 A. C. 687 and Sweenney v. Sweenney, 163 Ind Cas 749 (Cal). Section 112 of the Indian Evidence Act has also been relied upon in support of presumption of legitimacy. The counsel for the respondent has on the other hand referred me to Venkateswarlu v. Venkatanarayana, AIR 1954 SC 176, where Mukherjea J. who wrote the main judgment observed that the principle of English Common Law (vide 1924 AC 687), according to which neither a husband nor a wife is permitted to give evidence of non-access, after marriage to bastardise a child born in lawful wedlock, does not apply to legitimacy proceedings in India. No such rule is to be found anywhere in the Indian Evidence Act and the old Common Law doctrine has itself been abrogated in England by the provision of S. 7 of the Matrimonial Causes Act, 1950.
(6) I have gone through the entire evidence with the help of the counsel for the parties and I fully agree that the oral evidence led both by the husband and the wife is vague and unsatisfactory. The learned Additional District Judge was fully justified is not relying on it. Exhibits P. 1 and P. 2 are also, in my opinion, most inconclusive and do not supply reliable material for coming to the conclusion that a child was born to Mohinder Kaur from adulterous intercourse. Exhibit P. 1, birth entry dated 13-8-1951, shows that Baggu Chowkidar gave information regarding the birth of a daughter named Biro and in column No. 5 which requires the name of the father or mother, the name of Mohinder Singh son of Tara Singh is mentioned. In column No. 10 relating to kafiat the following entry exists:
'Aurat Mohinder Kaur umar 20 sal ek bacha'. The date of registration is given as 13-8-1951 and the place of the residence of the mother is stated as Bhularian. Exhibit P. 2 which is a copy of death entry dated 27th of September 1951 relates to the death of Biro daughter of Mohinder Singh which is stated to have occurred on 17-9-1951. The age of the child is stated to be two months and in the column of kafiat it is mentioned that there was fever for 6 days. It is clear that Exhibit P. 1 gives the name of the father to be Mohinder Singh son of Tara Singh. The learned Additional district Judge has in his judgment upheld the contention of the petitioner respondent that Mohinder Singh son of Tara Singh was written by mistake in place of Narinder Singh son of Dhara Singh.
The Court below has also drawn some kind of inference from the entry in the kafiat column which, according to the learned Judge, was not a mere coincidence that Mohinder Singh should have one female child and that in Exhibit P. 1 one woman and a female child should be mentioned in the column of kafiat. Chiefly basing his decision on these two considerations the Court below concluded that Mahinder Kaur gave birth to a child in 1951 who was illegitimate and therefore she was guilty of adultery justifying the impugned degree for divorce. It is difficult for me to agree with or to appreciate the reasoning and the conclusions of the learned Additional District Judge.
In order to substantiate charges of adultery merely on the basis of the birth of an illegitimate child it must be satisfactorily established that the birth of the child was clearly as a result of adulterous intercourse. Presumption of legitimacy being highly favoured by law, proof of non-access must also be clear and satisfactory; access and non-access connote existence or non-existence of opportunities for marital intercourse. Onus of such non-access is always on the party who alleges it. In the present case, however, it is contended that the lady has herself denied having given birth to any child after the birth of the first daughter. That is so, but hen it is for Narinder Singh to satisfactorily establish that Mohinder Kaur actually gave birth to a child in 1951. As already observed, Exhibits P. 1 and P. 2 are wholly insufficient to connect Mohinder Kaur with the lady about the birth of whose daughter the information is contained n the receipt. Evidence of the type as is produced on this record is most unsatisfactory and in my view, it would be highly dangerous to base finding of adultery or birth of an illegitimate child on such evidence. I have not been able to find any material justifying the observation of the learned Additional District Judge that an attempt was made to falsely foist a child on Narinder Singh son of Dhara Singh and that by mistake the name of Mohinder Singh son of Tara Singh was inserted in the birth entry. There is no evidence on the present record to show that there is no other person in the village by the name of Mohinder Singh son of Tara Singh to whom a daughter named Biro may not have been born in August 1951. In the absence of such evidence, in my view, it is highly unsafe to base a finding of adultery and illegitimacy on the basis of Exhibits P. 1 and P. 2.
(7) For the reasons given above, this appeal is allowed and the judgment and the decree of the Court below set aside and the suit for divorce or judicial separation dismissed. In the circumstances of the case, however, the parties will bear their own costs throughout.
(8) Appeal allowed.