Subramonian Poti, Ag. C. J.
1. This appeal is by a wife challenging the decree for divorce granted by the Court below on a petition by the husband. Parties are Ezhavas. They were married on 2-9-1969 and two children have been born in the marriage. The wife was residing in the husband's house. After the two children were so born, the petitioner-husband is said to have undergone a bilateral vasectomy operation on 27-7-1976. According to the petitioner he thereby lost his capacity to procreate children. The operation was at the Primary Health Centre, Ollur and was done by P. W. 1 Doctor Easby. The wife became pregnant later. She was taken to her house on 17-11-1977. According to the petitioner, his wife attempted to commit suicide on 23-11-1977 and though it was unsuccessful she had to be admitted to the hospital. It is said that on examination she was found to have pregnancy, six weeks old and such pregnancy was terminated by the doctor to save her life. According to the petitioner he thereafter subjected himself to a semen test to see whether he had fertility and it was proved by the semen-test conducted on 31-11-1977 that there was no spermatozoa in the semen. Consequently, according to him he must be found to have lost the capacity to procreate and therefore, his wife must be found to have conceived through another man. It is also mentioned that his brother was responsible for her pregnancy. This case of the petitioner was denied by the wife. According to her the petitioner was behaving cruelly towards her, the vasectomy operation undergone by the petitioner was not effective, because of that he had to be admitted later to the E. S. I. hospital, it was not true that his semen had been tested or that it had been found that he had no capacity to beget children and also that it was not true that the respondent became pregnant by illicit intercourse with the petitioner's brother.
2. The only point that arose for decision by the learned Sub-Judge was whether the respondent had voluntary sexual intercourse with any person other than the petitioner since, that was, in essence, the case of the petitioner. This would in turn depend upon the question whether the husband had undergone vasectomy operation and if so whether such operation was effective enough to prevent pregnancy despite sexual intercourse. This is so because the husband has no case that he had no sexual intercourse with his wife during the period she could have conceived. His only case was that despite that there could not be any pregnancy because of the vasectomy operation he had which, by subsequent verification on 30-11-1977, had been found to be effective, since it yielded negative result. The fact that the wife had become pregnant and that pregnancy was terminated is evident from Ext. A3 certificate issued by P. W. 2 and that question is no longer in issue.
3. The learned Sub-Judge found on the basis of Ext. A1 and the evidence of the Doctor examined as P. W. 1 that the petitioner had undergone vasectomy operation on 27-7-1976. He also found that the semen test said to have been conducted on 30-11-1977 and evidenced by Ext. A2 certificate showing a negative result would be sufficient to prove that the petitioner had no capacity to procreate. Ext. Al is an identity card issued for the purpose of vasectomy operation cf the petitioner on 27-7-1976. P. W. does not identify the petitioner as the person who was operated upon by him on that day. He speaks with reference to Ext. Al. But coupled with the evidence of the petitioner as P. W. 3 the fact that he underwent a vasectomy operation cannot be doubted. That of course is also not denied. The question then is, can the vasectomy operation by itself be taken in all cases to be effective without any further evidence of a test for ascertaining the presence or absence of spermatozoa? P. W. 1 speaks to the case that up to three months after the vasectomy operation spermatozoa may be found in the semen. This would be the case if the operation is successful. But if the operation is not entirely successful, naturally spermatozoa may be found even after the period of three months. Evidently this is the reason why in the evidence P. W. 1 says 'we issue leaflets advising semen test after three months'. Therefore, failure of such operations cannot be ruled out. It may not be sufficient merely to show that a person has undergone a vasectomy operation, but it must also be shown that such vasectomy operation was not a failure. That is normally shown by the result of a semen test after three months or more of the operation. There may be many reasons why such operation may result in failure and it may not be necessary for the purpose of this case to consider them because on the evidence itself it is seen that it is only a subsequent test that can assure the success of the vasectomy operation. Evidently that is the reason why reliance is placed on Ext. A 2 semen test which is said to have been conducted by the petitioner later. If no such test had been held and there was only the evidence of the Doctor showing that the petitioner had undergone the operation, that by itself would not have been sufficient to substantiate the plea that the child could not have been born to the petitioner. The presumption that may arise under the Evidence Act that the child born during the wedlock is born to the husband will necessarily apply in such a case. Section 112 provides for conclusive proof of legitimacy of a child born during the continuance of a valid marriage. The only exception contemplated by the section is proof that the parties to the marriage had no access to each other at any time when the child could have been begotten. That the husband had undergone a successful vasectomy operation is a circumstance which will negative the presumption of the paternity of the child that could have been begotten only after such operation was evidently not envisaged at the time the section was enacted. The answer, perhaps is that the term 'access' has to be understood as opportunity to procreate and not merely opportunity for sexual intercourse. We are not examining that question here further as that may not be necessary for this case.
4. Though we are satisfied that there was a vasectomy operation as we have indicated, the further question that we have to consider is, has it been shown that it was a successful operation? How far must Ext. A 2 be held to be proved satisfactorily in this case?
5. The evidence of P. W. 3 is that hetook from his house his semen for analysis in the laboratory at the PrimaryHealth Centre, Ollur. It is said to havebeen handed over to the LaboratoryTechnician who is said to have conductedthe analysis, found spermatozoa 'negative'and reported it to the doctor who hascountersigned the certificate. Ext. A2.Ext, A2 is on a small piece of paper, nodoubt, countersigned by the Medical Officer in charge of the Primary Health Centre, Ollur. It shows the name as Balan 31,refers to post vasectomy and semen forappraisal and the result negative forspermatozoa. It is not evident who hasinitialled this. Nobody speaks to it. Thestrange thing about it is that theLaboratory Technician is not examined inthe case. The Doctor who has countersigned and who spoke of Ext. A2 is askedwho the Laboratory Technician was. Evidently he does not know the name of theLaboratory Technician. There is no explanation as to why he has not beenexamined, and it is in this backgroundthat we have to consider Ext. A2. TheDoctor does not even say that the words'negative for spermatozoa' seen in Ext.A2 are those written by the LaboratoryTechnician or the initial in the certificateis that of the Laboratory Technician.Evidently therefore he only speaks tocountersigning Ext. A2 which is not ofmuch consequence. He is not the one whoreceived the sample of the semen. He isnot the one who analysed it. He is notthe one who saw the result and that isevidently why there is noindication that he came to know theresult otherwise than by reason of Ext.A2 which he countersigned, which ofcourse anyone of us could see. Whetherthe sample of the semen was taken within a reasonable interval of its analysis,how that sample was treated, how analysis was made and how the result wasreached, are matters of concern in assessing the value of the certificate and assessing the validity of the result. Thereis no evidence on this. Reference may bemade to the following passage in Shaw'sTextbook of Gynaecology, Ninth Editionat page 326 :
'The most important part of the male examination is the semen analysis, and certain points regarding the methods and timing of the collection of the specimen are noteworthy. The best specimen is one obtained by masturbation in the vicinity of the laboratory, since this guarantees its freshness. If this method is uncongenial to the patient, coitus interruptus into a widenecked vessel such as a Petri dish may be employed. The production of a condom specimen is to be discouraged as condoms contain a spermicidal chemical and false readings will thereby be obtained. The best specimen will be produced after a short period of abstinence -- not less than three days. It should be emphasised most strongly at this point that the sperm picture of a man should never be assessed on one specimen unless exceptionally good, and that the average of three readings is required to establish a definite defect.....'
Going by the evidence of P. W. 3, the sample was taken not in the Laboratory but was brought from home. How long before analysis such sample had been taken is not a matter in which there is any evidence.
6. The presence of spermatozoa will depend also upon the person from whom it is taken. It will be affected if the person is suffering from diseases even such as mumps, venereal disease or tuberculosis. In this context, reference may be made to the following passage at page 326 :
'It is not enough, however, that spermatogenesis should be satisfactory, since it is a far cry from the seminiferous tubule to the Fallopian tube and many hazards beset the journey. The collecting apparatus of the epididymis may be damaged by trauma or inflammatory disease -- notably gonorrhoea or tuberculosis. The vas deferens itself may be occluded, and this is especially to be suspected if there is a herniorrhaphy scar, and doubly so if the scar is bilateral. Chronic inflammatory disease of the prostate and seminal vesicle may be associated with male infertility, and congenital lesions of the penile urethra such as hypospadias provide an obvious mechanical explanation for imperfect insemination.'
7. Further, there is no evidence in this case that what was analysed was the sample received. Not that a mistake should occur in every case, but this is a possibility and one hears once in a while that this has so happened. It is especially so in a case where the certificate has evidently been obtained to advance the petitioner's ease. Whether actually it was the Laboratory Technician who conducted the analysis is itself a matter which can be determined only by the examination of the Laboratory Technician who necessarily should be subjected to cross-examination on his testimony. P. W. 1 the Doctor is not competent to speak on it. He does not speak to this. He only states that he countersigned a piece of paper. So far as analysis is concerned evidence is not available. Hence nothing turns on Ext. A2.
8. We, must also remember that P. W. 3 the petitioner, a person who in his petition goes to the extent of setting up a case that his wife became pregnant by reason of sexual relation with his own brother, does not repeat his case on oath when in the witness box.
9. In these circumstances, though we find that the husband has undergone vasectomy operation, in the absence of any reliable material to show that such operation was successful, we cannot find, despite the presumption in Section 112 of the Evidence Act, that the child born to his wife during wedlock is not born to him. If that be HO, we see no reason for the decree for divorce granted by the Court below. The decree is set aside. The petition for divorce will stand dismissed. Though learned counsel Shri Krishnamoorthy appearing for the respondent wanted an opportunity to prove Ext. A2 certificate by examining the Laboratory Technician, we do not think that we should, at this stage, remit the matter back for that purpose. It is not as if any attempt had been made to examine the technician but that attempt had failed because of the failure of the Court to give an opportunity. In a matter where the question of paternity is involved and a person is seeking to divorce his wife, it is up to him to adduce evidence which a Court could accept and act upon. It is not shown that it was due to any failure to give opportunity to him that petitioner had failed to adduce evidence. Hence we are not inclined to grant such an opportunity. The appeal is allowed. The petition for divorce would stand dismissed. No costs.
Learned counsel for the respondent orally prayed for leave to appeal to Supreme Court under Article 134A of the Constitution. We do not see any case for leave since no substantial question of law of general importance much less any question to be decided by the Supreme Court arises in this case. Leave declined.