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Kishan Gopal Vs. Smt. Sarswati - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 10 of 1978
Judge
Reported in1979WLN555
AppellantKishan Gopal
RespondentSmt. Sarswati
DispositionAppeal dismissed
Cases ReferredFaiz Mohammed v. Mt. Hushan Baun
Excerpt:
civil procedure code - order 41 rule 27--additional evidence and hindu marriage act 1955--section 13--medical out door ticket & rainfall report do not assist in determining whether husband had access to wife--held, conditions laid down in order 41 rule 27 do not exist & husband cannot be permitted to lead additional evidence;the certificate of the doctor which was produced along with the application under order xli rule 27(1)(aa), c.p.c. merely shows that he was suffering from b.s. arteries' and was registered in outdoor record on january 25, 1977 of serial no. 3(sic)09 of the register. this is not a sick certificate and there is no mention of malaria fever there is no document to show that he was not in a position to have coition on january 24, 1977. the second document is a.....s.k. mal lodha, j.1. this is an appeal by the husband under section 28 of the hindu marriage act no. xxv of 55for short, 'the act' hereafter against the judgment dated april 28, 1978 of the learned district judge, bikaner, by which his petition for dissolution of marriage by a decree of divorce under section 13(1) of the act was dismissed. for the sake of convenience, the husband appellant and the wife respondent wail hereafter be referred to as 'the husband' and 'the wife' respectively in this judgment.2. the case of the husband, as disclosed in the petition, is as follows-that the husband was married with the wife about ten years preceding the date of the filling of the petition (petition was filed on 1-7-1977) according to the hindu rites; that a girl was first born out of this wedlock.....
Judgment:

S.K. Mal Lodha, J.

1. This is an appeal by the husband under Section 28 of the Hindu Marriage Act No. XXV of 55for short, 'the Act' hereafter against the judgment dated April 28, 1978 of the learned District Judge, Bikaner, by which his petition for dissolution of marriage by a decree of divorce under Section 13(1) of the Act was dismissed. For the sake of convenience, the husband appellant and the wife respondent wail hereafter be referred to as 'the husband' and 'the wife' respectively in this judgment.

2. The case of the husband, as disclosed in the petition, is as follows-that the husband was married with the wife about ten years preceding the date of the filling of the petition (petition was filed on 1-7-1977) according to the Hindu rites; that a girl was first born out of this wedlock that the husband reliably learnt that the wife was pregnant; that the husband and the wife had not shared common bed for the last 9 1/2 months preceding the date of the presentation of the petition that the wife is net of good character; that she became pregnant by some person other than the husband whose name the husband has not been able to ascertain despite efforts and that person is amongst one of the persons of her 'Pihar'. It was further alleged that a petition under Section 9 of the Act for restitution of conjugal rights was lodged by the husband against the wife which was decided on January 24, 1977; that on that day, the wife agreed to live with the husband and was ready to discharge her marital obligations It was averred that without discharging the marital obligations, she left the matrimonial home on January 25, 1977 and went back to her 'Pihar'. It was also stated that the wife is of immoral character and is not discharging the marital obligations and that the husband is not ready to condone her conduct as she has not changed her 'Chalchalan'. It was further stated in the petition that the bus bar d wants to keep the daughter with him so that she may maintain good character. In para 9 of the petition, it was mentioned that a notice was served on the wife on June 17, 1977 in which it was stated that she may get herself medically examined but she did not furnish any proof until the expiry of the period mentioned in the notice showing that she was not pregnant. Under Section 27 of the Act, restoration of the silver and gold ornaments which were presented by the 'husband's father at the time of the marriage to the wife were also claimed. On these averments, it was prayed that the marriage may be dissolved by a decree of divorce.

3. The wife resisted the petition by filing a reply dated July 16, 1977 ca August 1, 1977. It was specifically stated in para 10 if the additional pleas of the reply that the wife went with the husband from the Court on January 24, 1977; that she remained at the matrimonial home with the husband for about four months and almost daily shared the common bed with him. In para 11 of the additional pleas, it was stated that she had conceived by the husband. A plea was raised to the effect that the husband had turned out the wife from the house at the instance of his parents after torturing her before two months and has levelled false accusations against her. No replication was filed to this reply.

4. On August 8, 1977, the learned District Judge framed the following issues:

1. Whether the petitioner (husband) is entitled to get a decree ofdivorce against the non-petitioner (wife)?(Petitioner)2. Whether the petitioner (husband) is entitled to recover the ornaments as stated in para 10 of the petition?(Petitioner)3. Whether the non-petitioner (wife) is of immoral character?(Petitioner)4. Whether the petitioner (husband) had turned out the non-petitioner(wife) before two months from his house after torturing her?(Non-petitioner)5. Relief.

In support of his case, the husband examined himself as PW 1 and his mother Smt. Durga as PW 2. In rebuttal, the non-petitioner examined herself as PW 1 During the course of the trial of the petition, on behalf of the husband, the letter Ex. 1 (photostat copy Ex. A1), copy of the notice Ex. 2 acknowledgement Ex. 3 & postal receipt Ex. 4 were produced & proved. List of the ornaments from the Bahi was also produced which was marked Ex. 5 and its copy on the record is Ex. 5A.

5. The learned District Judge has recorded the following findings:

1. That it has not been proved that the wife is of immoral character and therefore, the husband is not entitled to a decree of divorce.

2. That it has not been proved that the ornaments as detailed in the Schedule appended to the petition were presented by the father of the husband to the wife at the time of the marriage;

3. That the husband has not been able to prove that the wife is of immoral character or that the boy who was born on October 12, 1977 is not of the husband.

6. The learned District Judge did not consider it proper to record any fining in respect of issue No. 4 as according to him, it was redundant.

7. The petition for dissolution of the marriage by a decree of divorce was dismissed on April 28, 1978.

8. Feeling aggrieved by the judgment of dismissal of the petition under Section 13 of the Act, the husband has filed this appeal under Section 28 of the Act as aforesaid.

9. On February 27, 1979, efforts for reconciliation were made, At that time, the wife stated that she is ready to go to her matrimonial home and live with the husband but the latter declined to accept her. Thus, the attempts for reconciliation failed.

10. On March 7, 1979, an application under Order XLI, Rule 27(I)(aa) C.P.C. red with Section 151 CPG supported by an affidavit of the appellant was admitted, Along with the application, a certificate of the doctor that the Dime of the husband was entered at S. No. 3509 on January 25, 1979 in the on door record and a letter of the Meteorologist Incharge were produced. It was prayed that the aforesaid two documents be taken on record as additional evidence to enable this Court to do substantial justice between the parties. The arguments in the appeal were heard on March 8, 1979; March, 1979; March 20, 1979; March 26, 1979 and they were concluded on March '7, 1979. After hearing the learned Counsel for the parties and going through the record of the case, I am satisfied that the husband is not entitled to produce any additional evidence and his application deserves to be dismissed. In the petition under Section 13(1) of the Act, it was merely stated by the husband that the wife became ready to fulfill her marital obligations on January 25, 1977 and without fulfilling them, she left the house on January 25, 1977. In his statement in the court, he has stated in the cross-examination that he come to his house on the night of January 24, 1977 at about 1.00 or 130 am, and at that time, he was having malaria fever and, therefore, he did not sleep in the room where his wife was sleeping. PW 2 Smt Durga (mother of the husband has stated in her deposition that on January 24, 1977 the husband was down with fewer and on that day, it rained and, therefore, the husband slept near her and not with the wife. The learned District Judge has mentioned that it has not been proved beyond doubt that the husband was ill on that day as had it been so, he could produce a sick certificate to that effect. He has further mentioned that if it had rained on January 24, 1977 and the husband was suffering from fover on that day, then it is not understandable as to why he remained out of his house late in the night till 1.30 a.m. He, therefore, reached the conclusion that the husband has not been successful in proving non-access to the wife on the night of January 24, 1977, The certificate of the doctor which was produced along with the application under Order XLI Rule 27(aa), C.P.C. merely shows that he was suffering from 'B.S. Aderites' and was registered in outdoor record on January 25, 1977 at serial No. 3509 of the register. This is not a sick certificate and there is no mention of malaria fever. There is no document to show that he was not in a position to have coition on January 24, 1977. The second document is a letter addressed to the husband by the Meteorologist Incharge, Jaipur mentioning record of rainfall at the Pilot Balloon Observatory, Civil Lines, Bikaner on January 24, 1977 after 17.30 1ST. It merely mentions that there was intermittent rain between 19.00 1ST to 19.15 1ST, and intermittent drizzle between 2000 1ST to 21.00 1ST. The amount of rainfall between 17.30-20.30 1ST recorded is 0.2 mm and between 20.30-23 30 1ST is trace. These documents, in my opinion, are of no assistance for determining the Leal question involved in this appeal, namely, whether thehusband had no access to the wife on January 24, 1977. In the applications itself in para 3, it was mentioned, 'it was after the judgment that the appellant was apprised of the necessity for the said certificate'. In para 5, it is mentioned, 'at the time of judgment despite my due exercise of diligences I could not produce certificates in the lower court because there Vas no argument to this effect in the lower court by the opposite counsel. Order XLI, Rule 27(1)(aa) C.P.C. provides that the party seeking to produce additional evidence has to establish that notwithstanding exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence be produced by Lim at the time when the decree appealed against was passed The conditions laid down under Order XLI, Rule 27(1)(aa) C.P.C. do not exist in this case and it will not be proper for me to exercise discretion in favour of the husband for production of additional evidence m this Court. Apart from this, I may mention that this Court is in a position to adjudicate on the points in controversy between the parties on the basis of the evidence already on record. The application for permission to produce additional evidence under Order XLI, Rule 27(1)(aa) is, therefore, rejected.

11. Now, I proceed to deal with the merits of the appeal. Learned Counsel appearing for the husband, in the first instance' contended the sufficient opportunity was not given to the husband to lead evidence. I may state at once that specific ground to this effect was not taken by the husband in the memo of appeal. Issues were framed on August 8, 1977. On Sept. 1, 1977,PW 1 Kishangopal was examined On September 19, 1977, both the parties submitted to the court that the wife was pregnant and that in the reply to the application under Section 24 of the Act which was presented on July 23, 1977, it was stated that there was pregnancy of 7 1/2 months. Both the parties also submitted that the wife may be got examined by a lady doctor so that the period of pregnancy could be ascertained. Some directions were made which are incorporated in the order sheet of the trial court dated September 19, 1977. It appears from the report of Dr. (Mrs.) Chitralekha Sarin, Reader S.P. Medical College, Bikaner, dated October 3, 1977, that the wife was having pregnancy of about 32-34 weeks duration as examined on September 26, 1977. This was based on the clinical findings, corroborated by the radio-clinical findings. It was recorded in the order sheet dated October 3, 1977 that the file be put up after the delivery. On October 14, 1977, an application was submitted on behalf of the husband that the wife may be directed to submit medical report as the delivery had taken place. On October 26, 1977, the learned District Judge directed that a letter be addressed to the hospital authorities to intimate the weight, length etc of the child born to the wife on October 12, 1977. In pursuance of the letter, the aforesaid Reader informed that the weight of the baby at the time of birth Was 2.5 kg. as per records of Obsteatrics and Gynaecology Bed-head ticket of the patient. It further appears from the report On the reverse of the letter dated November 7, 1977 that according to the newborn register record, the wife had delivered a child weighing 2.5 kg. having length of 50 cms and the circumstance of head was 33 cms & that the child was male and apparently looked matured. On Nov. 18, 1977, arguments were heard. On the report of the doctor. On that day, an application was submitted on behalf of the wife that her evidence may be recoded first. On behalf of the husband, it was prayed that his evidence may also be reopened & he may be allowed an Opportunity to produce evidence to which learned Counsel for the wife had no objection and, therefore, the case was kept for the evidence of the husband on December 13, 1977 It was ordered that after the closure of the evidence of the evidence of the fife and, the evidence of the wife and her witnesses as prayed by her would fee recorded. On December 13, 1977, time was sought on the ground that there is feasibility of mutual settlement. No witnesses were present on that day. Adjournment was allowed and ft was ordered that the here pat up for compromise or for evidence on December 14, 1977. PW. 2 Smt. Durga was examined and the husband's evidence was closed as he finished his evidence. The burden of proving that during the continuance of the marriage, the wife had remained pregnant not by the husband. Despite receipt of the aforesaid reports and obtaining time from the framed District judge on November 18, 1977, neither Smt. Chitratekha Sarin nor any other martial evidence was produced by the husband. The wife also wanted to reduce Dr Chitralekha. doctor of Radiology PM & H.O. Bikaner vide be list dated December 15, 1977. She submitted an application dated January 10 1978 that the husband may be directed to deposit Rs. 500/- on account of the expenses for the witnesses This application was resisted by the husband vide his reply dated January 20, 1978. The learned Distract fudge, if de his order dated January 20, 1978, declined to order the husband, to deposit Rs. 500/- as prayed by the wife. On February 6, 1978. the wife Examined herself On April 12 1978, an application was fond on behalf of the wife that she does not want to produce Dr. Chitralekha Sarin and the Paedriatician maybe summoned After hearing arguments the learned District judge ordered that he may be summoned and directed that her counsel should give full details of the winter process fee and the summons and there after the may be summoned, On April 14, 1978, Dr Miglani was present but the learned Counsel for the wife did not examine tern and closed her evidence. Arguments were heard on April 15, 1978. It therefore closed that the husband finished his evidence on December 14, 1978 and, therefore the court dosed it and the ease was kept for the evidence of the wife Thereafter, during the pendent of the petition, no steps were taken for production of further evidence by the husband. During the course of arguments learned Counsel for the appellant could not satisfy me as to how he was not given adequate opportunity for producing the evidence. He even did not show what evidence toe wanted to produce me what was not permitted by the court. In these circumstances, I find no fore in the contention of the learned Counsel for the appellant that sufficient opportunity was not given to the husband for producing evidence.

12. Issues Nos. 1 and 3 have been reproduced above. Issue No. 1 is an omnibus is and if I may say so, it is in the nature of relief Issue No. 3 is whether the wife is of immoral character, None of the parties in the appeal has raised any grievance about the frame of these tapir. It appears that the parties are on the common ground that if the husband has been successful in establishing that the wife, when she delivered a son on October 12 1977 was pregnant not by the husband but by some other person, the husband would be entitled to get the marriage dissolved by a decree of divorce under Section 13(1)(d) of the Act. In connection with this issue, the husband has led evidence to show that the wife had become pregnant not by him but some other person which has resulted in delivery of a boy on October 12, 1977 whereas the wife has led evidence to show that she had conceived by the husband and the son born to her on October 12, 1977 is of the husband. The learned District Judge, as stated above, after Considering the oral and documentary evidence of the parties & other material on record found that the husband has failed toestablish that the wife is 'Ghari-traheen' or that she was pregnant by some other person and decided issue No. 3 against him and consequently, further decided issue No. 1 against the husband holding that he is not entitled to the dissolution of marriage. In these circumstances, I am called upon to decide the question whether the wife, when she delivered the son on October 12, 1977, became pregnant not by the husband but by some other person so as to entitle the husband to obtain a decree of divorce. In other words, the question is, whether after the solemnization of the marriage, the wife had voluntary sexual intercourse with some person other than the husband which resulted in the conception and delivery on October 12, 1977.

13. Section 13, material for the present purpose, reads as under.

13. Divorce - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or... ... ... ...

Section 112 of the evidence is as undo,-

112 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 sop 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.

Under Section 112 of the Evidence, the fact that any person born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate son of that man unless it may be shown that the parties to the marriage had no access to each other any time when he could have been be gotten. It is not in dispute that the husband had filed an application for restitution of conjugal rights under Section 9 of the Act,' that there was a compromise between the parties; that on January 24, 1977, the wife came to the husband's house for carrying out the marital obligations and that the wife remained at her matrimonial home on the day and night of January 24, 1977 It is also not in dispute that she remained at the house of the husband at least on the night of January 24, 1977. According to the husband, she left his house on January 25, 1977 whereas according to the wife, she remained at the house it the husband for about four months with him; that both of them, as husband and wife, shared the common bed and it was after four months that the husband turned her out after beating her. The case of the husband in the petition is that for the 9-1/2 months preceding the date of the presentation of the petition on July 1, 1977, the husband and the wife had not shared the common bed and that she remained pregnant by some person whose name he is not able to ascertain but person was from wife's pihar'. According to the husband, he did not share the common bed with her on January 24, 1977 as he came late in the night to his house and that when he went to the room where the wife was sleeping, he found that the wife had written in her own hand letter Ex. 1. He has stated that she had conceived by some other person and not by him. He has also stated that he wants to divorce the wife because of-

xSjpyu gS] cgpyu o vkojk gS A o esjs ?kj es jgus yk;d ugh jgh gS A

The husband's mother PW 2 Suit. Durga has stated that her son (husband) had slept near her and that the wife-

fnukad 24& dks og vkrs gh eqWg Qqyk;s gqos vkSj mij tkrs gh [kwVh rkudj lks xbZ FkhA

In rebuttal, the wife has stated that after the compromise -off the petition under Section 9 of the Act, she went to the house of her husband and reined there for four months, that the child born to her is that of the husband and that his face resembles to that of her husband, She has further stated that X-ray was done four times and after that, there was some disorder and she started realizing that delivery of the child would be accelerated. As regards the letter Ex. 1, she has stated that letter was got written from her by her mother-in-law, father-in-law and the husband at their dictation after one month from January 24, 1977. In cross examination, she has stated that when she went to her in-laws' house, she was not pregnant and that there was a pregnancy of two three months duration when she was turned out of the house. The admitted facts, therefore, are these that on January 24, 1977, the wife went to her husband's house and remained there on that night and that a son was born to her on 12-10-1977 i.e., after 262 days from 24-1-1977. The other facts are in dispute. Learned Counsel for the appellant invited my attention to the book 'Hamare Shareer Ki Rachana' Pt II, 3rd Edition written by Trilokinath varma & Text Book of Medical Jurisprudence & Toxicology by N.J. Modi & submitted that having regard to the length & weight of the child born on October 12, 1977, there remains no doubt that the wife conceived prior to January 24, 1977 and admittedly during that period (prior to January 24, 1977), there was no coition between the husband and the wife. He submitted that the wife had admitted that the child was mature one at the time of delivery and that he was born after the completion of nine months. He, therefore, contend that because of these circumstances, it is clear that she became pregnant prior to 24-1-1977 by some person other than the husband. At the risk of repetition, it may be stated that the burden to prove this was on the husband and whether, on the basis of the evidence which he has produced or placed on record, it can be said that he has discharged that burden. In Chilukuri Venkakswartu v. Chilukuri Venkatanarayana AIR 1954 SC 176, their Lordships of the Supreme Court observed as under,-

It may be stated at the outset that the presumption which Section 112 of the Indian Evidence Act contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the Section, namely, non access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy Council : Vide - Karapaya v. Mayandi A.I.R. 1934 P.C. 49(A), existence and nonexistence of opportunities for marital intercourse. It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act though as the presumption of legitimacy is highly favored by law it is necessary that proof of non-access must be clear and satisfactory.

Now I deal with Mahendra Manilal Nanavali v. Sushila Mahwendra Nanawti A.I.R. 1965 S.C. 364 on which considerable reliance was placed by the learned Counsel for the husband. In that case, the question for determination as whether the normal child born after normal delivery, 171 days after first coitus between the wife and husband could normally be said to be the child not of the husband As per majority, it was held that the child was not a child born after 171 days gestation and was not a normal child of the husband unless there is evidence which would justify the court in holding otherwise Their Lordships took note of the provisions of Sections 112 and 114 of the Evidence Act. In para 179, after considering conflicting evidence of the doctors and other circumstances, it was held that it was not possible to accept the wife's case of the conception having taken place from and after the first coitus with the husband and that the fact that a child was born during the continuance of a valid marriage between the parties could not be taken to be conclusive proof of delivery of a legitimate son. It was also found that the husband that no access to the wife at the relevant time The judgment in Mahendra's case A.I.R. 1965 S.C. 364, was rendered in the peculiar facts and circumstances and I may point but that it has no application to the facts of the case in hand. After considering various decisions of the Supreme Court, it was observed in Sachindranath Chatterjee v. Smt Milima Chatterjee A.I.R. 1970 Cal. 38.

What one, therefore, finds is consensus, in the sense of unanimity, that the standard of proof in a matrimonial cause in India is proof beyond reasonable doubt.

In Jyotish Chandra Guha v. Smt. Meera Guha A.I.R. 1970 Cal. 206, the learned Judge, in para 30 of the report, observed..And the law laid down by the Supreme Court - a law which binds us more than the law laid down by the House of Lords or the English Court of Appeal - has uniformly been that every matrimonial 'offence' must be proved beyond reasonable doubt....

Reliance was placed on Bipinchandra Jaisinghbai Shah v. Prabhavati A.I.R. 1957 S.C. 176, Earnist John White v. Kathleen Olive White (Nee Meade) and Ors. A.I.R. 1958 S.C. 441, Lachman Uttamchand Kirpalani v. Meena alias Mota A.I.R. 1964 S.C. 40, and Mahindra's case A.I.R. 1956 S.C. 364, While dealing with Section 12(1)(d) of the Act, in Nundkishote v. Smt. Munnibai A.I.R. 1979 M.P. 45, B.C. Verma, J speaking for the Court, observed as under-.Imputing unchastity to a woman is a charge of very serious nature. The charge, if established, may result in serious consequences. Not only would such a woman be condemned in the society and be lowered in the eyes of her relatives & associates, but may also suffer a child, if any, being called a bastard. It shall therefore be just to seen for a more cogent & convincing evident in such case than the one which may only be sufficient to create doubt. Indeed the Supreme Court in Mahendra v. Sushila A.I.R. 1965 S.C. 364 has under such circumstances desired that the petitioner should be allowed to succeed only if he proves beyond reasonable doubt that the respondent was pregnant by some one else at the time of marriage. It is, however, further observed that admissions of the parties in such cases can also be considered. Needless to say that he evidence adduced by the appellant in this case does not satisfy the test laid down by the Supreme Court in the above cases.

(emphasis added).

The word 'access' used in Section 112 of the Evidence Act has been construed by several decisions. It is well settled that the word 'access' means no more than opportunity of intercourse. Thus, the husband, in order to succeed in the present case, was required to establish non-access conclusively, that is, beyond all reasonable manner of doubt and in the absence of any satisfactory evidence as to non-access, the presumption arising under Section 112 of the Evidence Act must prevail. Having carefully read the statement of the husband and the attending circumstances, I am satisfied that it has not been established that he had no access to the wife on January 24, 1977 when, after the compromise of the petition under Section 9 of the Act, the wife came to his house after a period of one year. It is admitted by him that he went to the room where his wife was sleeping and that he got the letter Ex. 1 which was under the pillow. The fact that he came to the house on that night at 1.30 a.m. is not of any significance so far as the question of 'access' is concerned. Further, the fact that he was suffering from malaria fever on that day, by it self, does not exclude the possibility of access for the simple reason that in the absence of any medical evidence on record, it cannot be said that the illness was of such a nature that the possibility of coition could be excluded. The wife came to the house of the husband after compromise after one or one and a half years and there was no reason for the husband to sleep near his mother The version of PW 2 Mst. Durga appears to be exaggerated for the simple reason that she has stated that when the wife came to the house, she was annoyed and slept after going upstairs. Therefore, the presumption that arises Under Section 112 of the Evidence Act stands unrebutted. The law requires in such a case the positive proof of negative fact that is, non-access as between the parties to the marriage. Non-access has to be proved like any other conclusive fact of unambiguous character and unless such evidence is forthcoming, it will not be possible to believe it to be probable that there was no access. In Mst. Mohindar Kaur v. Harindar Singh and Anr. A.I.R. 1960 Punj. 169, it was observed,-.Presumption of legitimacy being highly favoured by law, proof of non-access must also be clear and satisfactory; access and non-access connotes existence or non-existence of opportunities for marital intercourse. Onus of such non access is always on the party who alleges it....

In Raghavan Pillai v. Gourikutty Amma A.I.R. 1960 Ker. 119, it was observed as under..The question whether the husband and the wife had access to each other is one of fact and the party interested in denying the legitimacy of the child must set up a plea of non-access and prove the same....

Learned Counsel for the husband-appellant had brought to my notice the following facts-

1. that the child was born after 262 days from January 24, 1977.

2. admission of the wife in her statement that she delivered the child after completion of nine months,

3. that there was normal delivery, and

4. that the length and weight of the child at the time of delivery were 50 cms and 25 kg. respectively.

14. On the basis of these facts, he contended that the wife had conceived prior to January 24, 1977 and admittedly preceding one or one and a half years (according to the husband preceding three years), the husband and the wife did not share common bed. Mode, on Medical Jurisprudence and Toxicology, Twentieth Edition under the head 'Average Duration of Pregnancy', at page 326, has stated as under..From the above points h is quite clear that the actual duration of pregnancy in the female is not known; however, the average period calculated from experience is 280 days or 40 weeks, or 10 lunar months. This is equivalent to ten times the normal intermenstrual period which is usually twenty-eight days. It has been observed that in women whose intermenstrual period is shorter than the usual time pregnancy has terminated at the eighth or ninth lunar month or even earlier; the child having attained full development. Sidney H. Weddy describes a case in which a woman, aged 30 years gave birth to a full time daughter after gestation of 210 days ten times three weeks which was her normal intermenstrual period. The child cried lustily at birth, had a good crop of hair, was well coated with vernix caseosa, measured twenty inches in length, and weighed seven pounds. The fingers and the nails were fully developed and the child sucked vigorously on being put to the breast.

The learned author has further stated,-.the circumstances taking into consideration in estimating the duration of pregnancy are the date of conception from a single coitus and the arrest of menstruation. But neither of this is reliable; a single coitus does not fix the date of conception, but merely the date of insemination.

In Mahendra Manilal's case A.I.R. 1965 S.C. 364, it is mentioned that in that case, it was not disputed that the usual period of gestation from the date of the first coitus is between 265 and 270 days & the delivery is expected in about 280 days from the date of the menstruation prior to a woman conceiving a child.

15. No question was put to the wife when she examined herself as DW 1 as to what was her usual period of menstruation and when did she menstruate prior to January 24, 1977. In the absence of that, it is difficult to-fix her menstruation period. No expert was produced by either of the parties to depose having regard to the facts of normal delivery, weight and length of the child about the estimated time of conception when she gave birth to a child on October 12, 1977. When the wife stated in court that the child was born, to her after completion of nine months, there appears nothing inherently wrong in this statement in as much as she has also stated that she did not remember the date when the child was born to her. Nine months may be from the date of her last menstruation prior to January 24, 1977. It follows, therefore, that the child was born during the continuance of the marriage and that it was within usual period of gestation. The possibility of access cannot be Ruled out.

16. Learned Counsel for the appellant next contended that there was no question of sharing the common bed on January 24, 1977, for, after going to her matrimonial home on that day, she went upstairs and when the husband went in the room late in the night, he found that the wife was sleeping and letter Ex. 1 in a packet was lying under the pillow. The version of the wife is that this letter Ex 1 is, of course, written in her own hand but it was dictated to her after giving her beating. It appears from her statement that the letter was written in the presence of the mother-in-law, father-in-law and the husband and it was delivered to her husband. It further appears that the contents of the letter were written as the aforesaid persons told her. It is alleged that the letter was written after January 24, 1977. In the petition, in para 4, it was stated by the husband that the wife had written a letter to her 'Piharwalas'. In reply, para 4 of the petition was denied. It is significant to note that it was not stated by the wife in the reply that this letter was written as dictated by her husband, mother-in-law and father in law or that this was written after beating her. According to the husband, he took out the letter which was under the pillow and on the same night gave it to his mother. The learned District Judge has reproduced the contents of the letter Ex. 1 in extensor in the judgment under appeal. Learned Counsel for both the parties, during the course of arguments, read over the letter Ex. 1 to support their respective versions. A reading of this letter shows that it was not written on the night of January 24, 1977 as alleged by the husband. It is clearly written in it that 10-12 days have elapsed since, she came to her matrimonial home and has passed this period weeping. The words used in the letter are,-

eq>s rks fnu jkr ;s ekjs dgrs jgrs ;s yksd lkjs cdus yx tkrs gS fQj Egkjks rks 'kjhj /kqtus yx tkos es D;k d: vkSj esjs dks rks dHkh&dHkh; uhUn Hkh ugh vkrh fQj jksus yx tkrh gwWa-----------------------------eSus vkbZ bl ckjs fnu gks;k gS tksds eS jks;&jks; dVkS;k gSA

It is also apparent that she had not left the matrimonial home on January 25, 1977 but had gone subsequently. It further appears from the contents of this letter that the members of her in-laws family wanted the return of the ornaments and for the purpose of achieving this object, the letter was written. It is written therein.

&blfy;, vkius gkFk tksM+dj fy[krh fd gekjks tsoj pkj vkneh bDdBk djds ;qek nks ufg rks nl fnu thUnh jgus okyh ikWp fnu gh jgwaxh A

Towards the close, it is written,

dkdkth ls ekekth ls lcls izkFkZuk djrh gwW fd tsoj esy;knh ufg rks nl fnu thUnks jgrh ikWp fnu gh jgwxh A

In my opinion, it is not necessary to make a further probe in the matter as to under what circumstances the letter was written and at what time it was written, for, so far as the question by whom the wife became pregnant is concerned, this is not of any relevance. It may be that the dispute relating to the ornaments was there and that led to the writing of the letter Ex. 1. The statement of PW 1 Kishangopal and PW 2 Smt. Durga do not establish beyond reasonable doubt non-access of the husband. The decision reported in Priti Parihar v. Kailash Singh 1978 W.L.N. 137, relied on by Mr. Khatri that where there is impossibility of the husband and wife living together, the marriage should be dissolved, is not applicable to this case.

17. Keeping the tests laid down by the decisions referred to hereinabove, and the material on record, reference of which has also been made in the foregoing part of this judgment, lam in agreement with the learned District Judge that the husband has failed to establish that the wife became pregnant by some person other than the husband.

18. There h additional reason also. The wife has stated that the facial feature of the child born on October 12, 1977 resembled with that of the husband. The child was brought by the wife with her in court at the time of her statement. No cross-examination was directed on this aspect of the matter. Mode, in his above-referred book, under the head 'Paternity', has stated that the paternity of a child may be determined from the resemblance of its feature, colour, voice, manner etc. to those of the alleged father. If any cross-examination would have been directed, negativing that the facial features do not resemble with that of the husband, that would have provided some aid for determining the question whether the wife had become pregnant by some person other than the husband. I may observe that the wife has not been able to support her contention by cogent and convincing evidence regarding the period she stayed at the matrimonial home after January 24, 1977 or about the circumstances under which she wrote the letter Ex. 1 but it is well settled that the weakness or falsity of the de fence does not, in itself, prove the case of the party who comes to the court for relief.

19. Learned Counsel submitted that on June 17, 1977, a notice was issued to the wife but she did not reply to that Notice Ex. 2 was issued in which it was written that she could produce a certificate satisfying him that she was not pregnant and for failure to reply, it will be presumed that she is of immoral character (Gharitraheen), and he would institute proceedings for divorce Para relating to the notice was denied. PW 1 Kishangopal has stated that the notice was delivered to her, the acknowledgement of which is Ex. 5. She has, in her deposition, not denied the receipt of the notice. The question of giving reply did not arise as the husband wanted medical proof to show that she was not pregnant while in fact, she was pregnant when the notice was received by her and, therefore, failure to give reply is of no significance what, so ever.

20. In these circumstances, issue No. 3 was rightly decided by the learned District Judge, and I affirm the finding. It, therefore, necessarily follows that the husband is riot entitled to the dissolution of marriage by a decree of divorce under Section 13(1) of the Act. Thus, the finding on issue No.1 is also confirmed.

21.The only point that now survives for consideration which was canvassed at the Bar by the learned Counsel for the appellant is that issue No. 2 was wrongly decided by the learned District Judge against the husband. In para 10 of the petition, the husband has stated that His father had presented gold and silver ornaments as per Schedule appended to the petition at the time of the marriage to the wife and that he is entitled to their return. The wife has not admitted para 10 in the reply. In support of issue No. 2, PW 1 Kishangopal has stated that at the time of the marriage, ornaments were presented, the entries de which were made in Ex 5. In the cross-examination he has stated that these ornaments was presented on the second day of the marriage, that these ornaments were sent by bas grand-mother and father with the Pandit and that these ornaments were of his mother. It has been admitted by him that there has been a dispute between the members of his & in-laws family for about 4 5 years about ornaments. PW 2 Smt. Durga in her statement has mentioned the details of the ornaments which were presented. DW 1 Sarcastic has deposed that she has returned the ornaments except one Rakhari & Payal to the parents of her husband in the presence of a person. The learned District Judge, after considering the statements of PW1 Kishangopal, PW 2 Smt. Durga & DW I Sarswati, recorded a finding that the husband has not been able to prove by satisfactory evidence about the presentation of the ornaments He also took role of the fact that neither the father nor the Pandit was produced in evidence and as such, it will not be safe to pass the any order in respect of the ornaments on the statements of PW 1 Kishangopal and PW 2 Smt. Durga. He. therefore, came to the conclusion that it cannot be found as to what ornaments were presented by the husband to the wife at the time of the marriage. He, therefore, decided issue No. 2 against the husband. Having read the statements of PW I Kishangopal and PW 2 Smt. Durga, I am satisfied that no valid exception can be taken to the finding recorded by the learned District Judge in this regard. Faiz Mohammed v. Mt. Hushan Baun 1977 W.L.N. U.C. 60, cited by the learned Counsel for the husband has no relevancy what so ever. I have already held, while deciding issues Nos. 1 and 3, that the husband is not entitled to dissolution of marriage by a decree of divorce. Section 27 of the Act lays down that with respect to any property presented at or about the time of marriage to both the husband & the wife jointly, on application under the Act, the court may make provision for disposal of such property as it deems just and proper. In view of the referred, to above findings, it is not necessary to resort to the provisions of Section 27 of the Act.

22. Issue No. 4 was decided by the learned District Judge against the wife. Learned Counsel appearing for the wife did not assail that finding during the arguments in the appeal. Therefore, the finding on issue No. 4 does not require to be re-examined by me.

23. The net result of the exercise done here in above is that as the husband has not been successful in proving that the wife has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than him, he is not entitled for dissolution of the marriage by a decree of divorce under Section 13(1)(i) of the Act.

24. For the reasons mentioned above, there is no merit in this appeal and it is accordingly dismissed, without any order as to costs.


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