Deochand S/O Shankar Bhajankar vs Divisional Commissioner And Ors.
2007 Latest Caselaw 864 Bom

JUDGMENT

A.B. Chaudhari, J.

1. Rule. Rule returnable forthwith. Heard finally by consent of parties.

By the present petition, the petitioner has questioned the validity of the order dated 26-6-2006 made by the Additional Collector, Nagpur, confirmed by the Commissioner, Nagpur Division, Nagpur, in appeal disqualifying the petitioner as a Member of Gram Panchayat Pachkhedi (Gadli), Tahsil Kuhi, District Nagpur.

2. Facts:

(i) The present petition depicts a sorry state of affairs and the rapid depletion of social values in society. The respondent No. 3 filed a complaint before the Additional Collector, Nagpur, on 4-2-2005 alleging therein that the petitioner has third child which was born on 15-6-2004 and named as Balya Devchand @ Devanand Bhajankar. He, therefore, prayed for disqualification of the petitioner.

(ii) The petitioner filed his reply and submitted that his marriage took place with Sunita on 26-6-1996 and Amit and Sumit were the children born out of the wedlock at village Pachkhedi, Tq. Kuhi, District Nagpur. On 14-1-2003 his wife Sunita suddenly left the matrimonial home and went to live with her parents at Kathurli, district Bhandara, without the knowledge and consent of the petitioner. Thereafter she did not return and the petitioner had no matrimonial relations with her. She started living adulterous life and Balya was born on 15-6-2004 and is not the son of the petitioner nor Sunita is his wife. He had sent a registered legal notice to her on 22-2-2005 and also filed Hindu Marriage Petition bearing H.M.P. No. 23/05 against her in the Court of 3rd Joint Civil Judge, Sr. Dn., Nagpur for divorce. Wife Sunita also filed Misc. Civil Application No. 65/05 in the Court of J.M.F.C. Paoni for grant of maintenance.

(iii) Alleging political vendetta of the complainant against him, the petitioner stated that the records were prepared by Anganwadi Sevika in collusion with the complainant about the birth of third child showing his name as the father of son Balya. The Additional Collector thereafter decided the dispute on 26-12-2005 and held that since the proceedings were pending before the competent Civil Courts, it was not proper to adjudicate on the issue. The respondent No. 3 preferred appeal before the Commissioner, Nagpur, who by his order dated 15-4-2006 found that the order made by the Additional Collector was contrary to the records and the Additional Collector has not considered the documentary evidence in proper perspective. The Commissioner therefore set aside the order made by the Additional Collector and remitted the proceedings to him for fresh disposal according to law. Thereafter the Additional Collector again heard the parties and passed the order on 26-6-2006 and considering the documentary evidence concluded that the third son Balya was of the petitioner. The said order was challenged by the petitioner by filing an appeal before the Commissioner, who after hearing the parties dismissed the appeal and confirmed the finding recorded by the Additional Collector. Hence this writ petition.

3. Arguments:

Mr. Kadukar holding for Mr. Parchure argued that the third child Balya was born on 15-6-2004 when Sunita, wife of petitioner, was not residing with petitioner at village Pachkhedi, district Nagpur, but was living with her parents at village Kathorli, district Bhandara. Not only that, after she abandoned the house of the petitioner she never returned to the matrimonial house and was living adulterous life due to which Balya was born to her. He then submitted that admittedly the proceedings for divorce as well as for grant of maintenance are pending in the competent Courts and, therefore, it was wholly improper for the authorities under the Bombay Village Panchayats Act to decide the paternity of the child Balya.

4. Per contra, Mr. Adgaonkar, learned A.G.P., supported the impugned orders and prayed for dismissal of writ petition. None appeared for respondent No. 3 though duly served.

5. Consideration:

At the outset, in the light of the submissions made before and the facts on record, it is necessary to dwell upon the relevant provision of law and the settled legal position. Section 112 of Evidence Act reads thus:

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 it could have been begotten.

This section is based on the well known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The Apex Court in the case of Gautam Kundu v. State of West Bengal held thus:

22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.

23.In Dukhtar Jahan (Smt.) v. Mohammed Farooq this Court held: (SCC p. 629, para 12).

Section 112 lays down that if a 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 and the mother remains unmarried, it shall be taken as 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. This rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.

24.This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. "Access" and "non-access" mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual "cohabitation".

It is the principle of law that Odiosa et inhonesta non sunt in lege prae sumenda (nothing odions or dishonourable will be presumed by the law). Law thus presumes against vice and immorality. In a civilized society there is a presumption in favour of legitimacy of children. In the light of these legal principles, I now propose to deal with the facts in this case. It would be relevant to note the contents of the reply that was filed by the petitioner before the Additional Collector. The relevant portion is-

That, on 14-1-2003 wife of non-applicant namely Sunita alone went to her parents house at Kathurli District Bhandara, without seeking his consent, when he was absent by keeping above two sons at his house at Pachkhedi, therefore he sent his relatives for two times to bring her from her parents house but she deliberately and intentionally refuted to come and cohabit with him and she is residing there with her own accord at her parents house, which is so away from the village Pachkhedi and since 14-1-2003 the non-applicant has no matrimonial relations with her and she has no interest in the family life of non-applicant and she has avoided his company and she is leading a adulterous life and alleged Balya born on 15-6-2004 is not a son of the non-applicant. That Sunita is not a wife of non-applicant.

6. Perusal of the above pleading show that the petitioner has made very serious allegations against his own wife. It will be seen that the allegations about adulterous life are blissfully vague. The charge of adultery against a wife cannot be founded only on the basis of one word "adulterous life". There is absolutely no substantiation by the petitioner anywhere of such a serious charge. That apart, it is important to note that the complainant-respondent No. 3 filed proceedings in question before Additional Collector on 4-2-2005 and the petitioner claims to have issued legal notice for the first time to his wife after about 18 days from 4-2-2005 and also appears to have filed proceedings under Hindu Marriage Act. When it is the case of the petitioner that the wife left his house on 14-1-2003, one wonders as to how for the first time on 22-2-2005, i.e. almost after two years, he got up and issued legal notice and filed proceedings against her, as aforesaid. That apart, the petitioner did not at all lead any evidence before the Additional Collector either oral or documentary to support such a serious charge. As against this, the Additional Collector found that there was documentary evidence to the effect that on 22-12-2003 and 19-1-2004 Sunita was given doses during pregnancy under Integrated Child Development Scheme at village Pachkhedi, meaning thereby that she was pregnant and on these two dates had taken doses at village Pachkhedi. Further, the name of the wife of petitioner, Sunita, is in the list of the women who had undergone family planning operation in the year 2004-05 and that there is also a further entry that Sunita had three children. That means immediately after birth of Balya on 15-6-2004 she underwent family planning operation. This evidence has not at all been rebutted by the petitioner. This is the documentary evidence which was prepared during the official course of business and has a high evidentiary value unless rebutted. It appears from the above evidence that doses were given to Sunita at Pachkhedi during the pregnancy of the said third child and thereafter she had undergone family planning operation, i.e. after the child was born on 15-6-2004, who was named as Balya. In the wake of such strong evidence and the legal position discussed above, I am inclined to accept the findings of facts recorded by both the Courts below.

7. For all these reasons, in my opinion, the petitioner has concocted a story and has gone to the extent of dubbing his wife as adulterous and has denied paternity of child Balya. It clearly shows that for a petty post of membership of Gram Panchayat a person can go to such an extent. This case is an example of how the social values are depleting fast in our society for petty politics. This is bound to affect the social fabric of the society and, in my opinion, the social workers must take up this issue to convince the people at large that social value and culture are paramount in the fabric of the society and not the petty politics.

8. In the result, I find no substance in the present writ petition. Same is dismissed with costs quantified at Rs. 5,000/- payable in the account of State Government within four weeks. Upon failure of the petitioner to pay the costs, the same shall be recovered by the Collector, Nagpur, as arrears of land revenue within eight weeks thereafter.