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Sohan Lall Vs. Smt. Dharampati - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. First Appeal No. 12 of 1966
Judge
Reported inAIR1967HP38
ActsEvidence Act, 1872 - Section 112
AppellantSohan Lall
RespondentSmt. Dharampati
Appellant Advocate Ram Krishan, Adv.
Respondent Advocate Hira Singh, Adv.
DispositionAppeal dismissed
Cases ReferredVenkateswarlu v. Venkatanarayana
Excerpt:
family - adultery - section 112 of evidence act, 1872 - appellant sought divorce on ground of living in adultery by respondent - respondent got pregnant even when there had been no cohabitation between appellant and respondent - no evidence given by appellant that respondent was carrying illicit intimacy with some other person - petition dismissed by senior subordinate judge - appeal - whether senior subordinate judge erred concluding that appellant failed to provide sufficient evidence that respondent was living in adultery - evidence adduced by appellant not so clear, positive and satisfactory as required for proving absence of opportunity for marital intercourse with respondent when child could have been begotten - when presumption raised by section 112 remained unrebutted it has to be..........the circumstance that a daughter had been born to the respondent though she was residing at her parents' house for the last nearly two years and the appellant had never visited her during that period. the respondent had, in rebuttal, adduced evidence that she had lived with the respondent at simla for about ten days in march, 1964, and the appellant had also been visiting her at the house and dohgri of her parents.5. the learned senior subordinate judge accepted the evidence, adduced by the respondent, as to her residing with the appellant, in march, 1964, at simla and the appellant visiting her at the house of her parents. he rejected the evidence of the appellant that he had never visited the respondent for the last nearly about two years. the learned senior subordinate judge,.....
Judgment:

1. This appeal is directed against an order of the learned Senior Subordinate Judge, Mahasu. whereby he dismissed a petition of the appellant, under Section 13 of the Hindu Marriage Act, seeking divorce from the respondent, his wife, on the ground that the respondent was living in adultery. The petition, which was filed on the 24th November, 1964, was based on the following allegations:--

2. The appellant and the respondent were married on the 5th August, 1960. They had lived as husband and wife till May, 1963. The appellant was employed at Simla. The respondent used to live with his parents. In May, 1963, the respondent had left the house of the parents of the appellant against their wishes and had gone to live with her own parents. Though, the appellant and the respondent had never visited each other or cohabited, after May, 1963, yet the respondent was in an advanced stage of pregnancy. This fact clearly indicated that the respondent was living in adultery.

3. The petition was resisted by the respondent. She admitted that she was married to the appellant and was living with him but she denied that she had left the house of the parents of the appellant in May, 1963. The respondent alleged that the parties were still living as husband and wife, and that they had been meeting at the house of the parents of the parties. According to the respondent, she was invited to Simla, by the appellant, and she had stayed with him for ten days in March, 1964. The respondent alleged that a daughter had been born to her in November, 1964 and the child was the offspring of the appellant. The respondent denied that the child was begotten by some person other than the appellant or that she was living in adultery.

4. At the trial of the petition, the appellant did not lead any evidence that the respondent was carrying on illicit intimacy with some person. To prove that the respondent was living in adultery, the appellant relied upon the circumstance that a daughter had been born to the respondent though she was residing at her parents' house for the last nearly two years and the appellant had never visited her during that period. The respondent had, in rebuttal, adduced evidence that she had lived with the respondent at Simla for about ten days in March, 1964, and the appellant had also been visiting her at the house and Dohgri of her parents.

5. The learned Senior Subordinate Judge accepted the evidence, adduced by the respondent, as to her residing with the appellant, in March, 1964, at Simla and the appellant visiting her at the house of her parents. He rejected the evidence of the appellant that he had never visited the respondent for the last nearly about two years. The learned Senior Subordinate Judge, therefore, held that the appellant had failed to prove that he had non-access to the respondent during the time, when the child could have been conceived. It was, further, held that the child was born from the union of the appellant and the respondent. After rejecting the only circumstance on which the imputation of adultery was based, the learned Senior Subordinate Judge dismissed the petition of the appellant holding that the appellant had failed to prove that the respondent was living in adultery.

6.Aggrieved by the decision of the learned Senior Subordinate judge, the appellant has come up in appeal.

7.The only question, which requires decision, in the appeal, is whether the learned Senior Subordinate Judge erred in holding that the appellant had failed to prove that the respondent was living in adultery. The sole circumstance, relied upon by the appellant, to prove that the respondent was living in adultery, was that an illegitimate child was born to the respondent in November, 1964. The case for the appellant was that he had never cohabited with the respondent after May, 1963 and that the birth of the child in November, 1964 led to the clear inference that the child was begotten by some other person and the respondent was living an adulterous course of life. Now, the child was born to the respondent during the continuance of the valid marriage between her and the appellant. Under Section 112, Evidence Act, there was a conclusive presumption that the child was the offspring of the appellant unless it could be shown that the appellant and the respondent had no access to each other at any time when the child could have been begotten. It was laid down in Venkateswarlu v. Venkatanarayana, AIR 1954 SC 176 that :--

'The presumption, which Section 112 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 connote existence and non-existence of opportunities for marital intercourse. Non-access can 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, though, as the presumption of legitimacy is highly favoured by law, it is necessary that proof of non-access must be clear and satisfactory.'

8. The point for consideration is whether the appellant had established that he had no opportunity for marital intercourse with the respondent during the period in which the child could have been begotten. The respondent, it is true, was residing at her parents' house since May, 1963 -- nearly one and a half years, before the birth of the child. Though, the respondent had denied, in her written statement, that she had left the house of her father-in-law in May, 1963, and had pleaded that she was still residing with the appellant, yet in her statement as a witness, she had admitted that she had left the house of her father-in-law in Jeth, 1963 and was residing at the house of her parents. The witnesses of the respondent, who were examined on the 22nd December, 1965, admitted that the respondent was residing with her parents for the last two and a half years, vide the statements of Jai Ram RW-4, Narain Chand RW-5 and Piara Lal RW-7.

9. But the mere fact that the respondent was residing at the house of her parents did not lead to the only conclusion that the appellant could not have the opportunity of marital intercourse with the respondent. There were circumstances, on record, which showed that there was a possibility of the appellant having such an opportunity. It is an admitted fact that the distance, between the villages of the appellant and the respondent's father, is about two miles and that the distance between the Dohgri of the father of the respondent and the village of the appellant is about two furlongs. It is, also, in evidence that the respondent was occasionally residing at the Dohgri of her father and that the appellant was visiting his village occasionally during the last three years. The appellant and the respondent are quite young--the appellant being twenty-nine years old and the respondent being about twenty-three years old. It will not be unreasonable to assume, in the circumstances of the case, that the appellant had the opportunity of marital intercourse with the respondent, his young wife, who was living so near, when he used to visit his village. This assumption is consistent with the evidence of Jai Ram RW-4, Narain Chand RW-5 and Piare Lal RW-7, who had stated that the appellant used to visit the respondent at her father's house and dohgri. The evidence of Salag Ram PW-2, Parma Nand PW-4 and Gobind Ram PW-8 was interested and was rightly disbelieved by the learned Senior Subordinate Judge.

10. Evidence was adduced, on behalf of the appellant, to show that his father had been sending people to persuade the respondent to come to his house but that she had refused to come. Inference was sought to be drawn from this evidence that there was hostility, between the parties and the appellant could not have visited the respondent. Niham PW-3 had stated that he had been sent by the father of the appellant to persuade the respondent to come to her husband's house but the respondent had refused to come Durga Nand P. W. 7 was another person who was alleged to have been sent to persuade the respondent to come to the house of her father-in-law. Kamla Nand PW-4 stated that Jai Ram, Narain Chand and Nihal Chand had approached the father of the appellant, on behalf of the father of the respondent, and had told him that the respondent had become pregnant by the younger brother of the appellant and he should invite her to his house.

Jai Ram RW-4 and Narain Chand RW-5 admitted that they had approached the father of the appellant but denied that they had told him that the respdt. had become pregnant by the younger brother of the appellant. They stated that they had simply informed the father of the appellant that the respondent was pregnant. The witnesses had, further, stated that the respondent was of good moral character. In face of the evidence of Jai Ram and Narain Chand, the evidence of Kamla Nand, that the witnesses had said that the respondent had become pregnant by the younger brother of the appellant cannot be accepted. The evidence, adduced, by the appellant did not establish that there was any hostility between the appellant and the respondent. There might have been some differences between the respondent and her in-laws.

11. The evidence, adduced, by the appellant was not so clear, positive and satisfactory as was required for proving that he had no opportunity of marital intercourse with the respondent when the child could have been begotten.

12. The respondent had produced evidence that she had been invited by the appellant to Simla and that she had stayed with him for ten days in March, 1964. Bahadur Singh RW-1, the father of the respondent, and Mangal Dass RW-3, had stated that they had taken the respondent to Simla in March, 1964 and had left her with the appellant. Bahadur Singh was obviously an interested witness. There were material discrepancies between the evidence of Bahadur Singh and Mangal .Pass. Moreover, the story that the respondent had lived with the appellant, in March, 1964, at Simla, did not appear to be probable. The respondent was residing with her parents for the last one year. It is not clear why the appellant should have called her to Simla only for ten days. In this view of the matter it is unnecessary to pronounce upon the credibility of the evidence of Sunder Singh PW-1 and Bala Nand PW-6, who had stated that the respondent had never lived with the appellant at Simla.

13. The fact remained that the appellant had railed to prove non-access. The presumption, raised by Section 112 Evidence Act, that the child was born of the appellant remained unrebutted. It was to be held that the child was the offspring of the appellant and not of any other person. The only circumstance, relied upon by the appellant, for proving that the respondent was living in adultery was not established. The learned Senior Subordinate Judge was right in holding that the appellant had failed to prove that the respondent was living in adultery and in dismissing the petition of the appellant.

14. The appeal is dismissed with costs.


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