Mahesh And Smt. Maya Devi vs Smt. Madhu
2007 Latest Caselaw 87 Del

JUDGMENT

J.M. Malik, J.

1. Mahesh, appellant No. 1, was married to respondent Smt.Madhu on 02.05.1995. Respondent gave birth to two children namely Kumari Kritika and Master Shubham on 06.01.1996 and 01.03.1998 respectively. On 21.07.1997, the respondent was pregnant by three months, when she was driven out of the matrimonial house. Their company had failed to bring Joie de vivre to the couple. The appellant alleged that Master Shubham was not born from his loins. Appellant Mahesh and his mother Smt. Maya Devi filed a petition under Section 25 of Hindu Guardian and Wards Act before the District & Sessions Judge, Ghaziabad, UP against the respondent, wherein custody of the female child Kumari Kritika was sought. In that petition, the appellants made imputation regarding the chastity of the respondent, to the effect that Master Shubham was not the child of Mahesh. Legal notice was sent to the appellants wherein they were asked to pay compensation in the sum of Rs. 2,00,000/- for the said defamation. Thereafter, a suit was filed. The learned Trial Court passed the decree and allowed compensation in favor of plaintiff/respondent in the sum of Rs. 1,00,000/- (instead of Rs. 2,00,000/- as prayed) along with interest @ 6% per annum from the date of filing of the suit till its realization.

2. Aggrieved by that order, the appellants filed first appeal before the learned Additional District Judge, who vide his order dated 19.05.2005, dismissed the appeal. Thereafter, the instant second appeal was preferred.

3. I have heard learned Counsel for the appellants. He admitted that the above said imputation was made by the appellants against the respondent. He, however, vehemently argued that by no stretch of imagination, it can be said that the above said imputation is false. In order to bring home his arguments, he pointed out that this is an admitted case of the parties that when the respondent left the house, she was pregnant by three months, the child was born on 01.03.1998, meaning thereby that the child was born after 10 months and 09 days. He submitted that presumption under Section 112 of the Indian Evidence Act can be raised against the father, appellant No. 1, when the child is born within maximum 280 days for the legitimacy of a child. Learned Counsel for the appellants pointed out that as a matter of fact, the respondent had left the house on 21.07.1997 and she became pregnant after leaving the house of the appellants. He explained that under these circumstances, it cannot be said that the appellants made a false imputation because they had genuine doubt that she must have relations with some other person.

4. I clap no importance to these arguments. Instead of touching the heart of the problem, he just skirted it. In order to understand the situation clearly, it would be worthwhile to reproduce Section 112 of the Indian Evidence Act which runs as follows :

112. Birth during marriage, conclusive proof of legitimacy.--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 he could have been begotten.

In this case, the appellant has failed to prove, firstly, that Master Shubham was not born during the continuance of a valid marriage and secondly, he was born after 280 days after dissolution of the marriage.

5. It must be borne in mind that this is the appellant and nobody else, who is to carry the ball in proving that Section 112 above said has no application to the facts of this case. In the instant case the marriage was never dissolved. Master Shubham was born during the continuance of valid marriage between appellant No. 1 and the respondent. The non-access may be proved by, (1) showing that he was imprisoned, (2) that he hated the wife as she lived with the paramour or, (3) that he was prevented from going to his wife. - Sreenivasam v. Kirubai . (4) by the evidence of the husband corroborated by circumstances: Vira Reddy v. Kistamma ; Shanti Bai v. Dalchand AIR 1953 Nag 374. It can be proved like any other physical fact by evidence either direct or circumstantial but proof must be clear and satisfactory.--Venkateshwarlu v. Venkatanarayan and Parasram v. Dayal Das .

6. In Goutam Kundu v. State of West Bengal and Anr. , the Apex Court was pleased to hold :

Section 112 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 a rebuttable presumption of law under S. 112 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.

7. Even if it is assumed that she left the matrimonial house on 21.07.1997, the child was born between 07 or 08 months. Again, it was a guess work whether the respondent was pregnant by three months or not. It is well known that after the completion of two months i.e. after the expiry of 60 days or 61 days, on the next following day, the third month starts. A woman carrying child of 62 days will be considered having pregnancy of three months. This fact further goes to embolden the case of the respondent. Moreover, there are cases where the children are born even after the expiry of nine or ten months. Courts agree that the period may be as long as 308 days : Melappa v. Guranuma , or 306 days.- Uttam Rao v. Sitaram .

8. Moreover, the compensation granted by the learned Civil Judge and affirmed by the first Appellate Court is reasonable and just. No argument in this regard was advanced.

9. In the light of this discussion, it is clear that the appellants partake more of illusions than reality in assuming that Master Shubham was not born from the loins of Mahesh. The second appeal is sans merits and deserve dismissal in liming, which I direct.