Sunny Devi vs Ram Babu Kumar
2023 Latest Caselaw 4604 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
               Miscellaneous Appeal No. 287 of 2019
======================================================

Sunny Devi, W/o Ram Babu Kumar, D/o Sudish Prasad, Vill.- Mallahi Bazar, P.O. and P.S.- Malahi, Distt.- East Champaran ... ... Appellant/Defendant Versus

Ram Babu Kumar, S/o Mahanth Prasad, Vill.- Sunarpur, P.S.- Branjariya, Distt.- East Champaran at present resident in Vill.- Singhiya Hiwan Branjariya Distt.- East Champaran ... ... Respondent/Plaintiff ====================================================== Appearance :

For the Appellant/s : Mr. Shiva Shankar Sharma, Advocate For the Respondent/s : Mr. Abhishek Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE JITENDRA KUMAR CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

Date : 15-09-2023

The present appeal has been filed under Section

19 of the Family Courts Act, 1984 impugning the judgment

dated 18.04.2019, passed by Ld. Principal Judge, Family

Court, East Champaran, Motihari in Matrimonial (Divorce)

Case No. 250 of 2012, whereby the petition, filed by the

Plaintiff-Respondent under Section 12(d) of the Hindu

Marriage Act, 1955 praying for decree of nullity for annulment

of marriage between the parties, has been allowed on contest.

2. The case of the Plaintiff-Respondent, as per the Patna High Court MA No.287 of 2019 dt.15-09-2023

petition filed before the Family Court, is that marriage

between the parties was solemnized on 19.04.2012 at the

Village Malahi Bazar situated in the District East Champaran

as per Hindu rites and customs. The parties had last resided

together at Sunarpur located in the local jurisdiction of the

Family Court, East Champaran, Motihari. It is also averred

that there is no petition filed by the Plaintiff-Respondent prior

to the present petition and there was no collusion between the

parties to present the matrimonial petition. It is further averred

that following the marriage, the Defendant-Appellant joined

his matrimonial house. It is further averred that soon the

Defendant-Appellant began to misbehave with the Plaintiff-

Respondent and disliked his company and also refused

cohabitation with him. It is further averred that on 30.04.2012,

the Plaintiff-Respondent had seen various symptoms of

Defendant-Appellant being pregnant. The Defendant-

Appellant tried to live lonely with an intent to suppress the

sign of pregnancy. It is further averred that the Plaintiff-

Respondent, having seen abnormality of physique and

behaviour of the Defendant-Appellant, got pregnancy test of

the Defendant-Appellant conducted, which was found

positive. It is further averred that the Defendant-Appellant Patna High Court MA No.287 of 2019 dt.15-09-2023

herself confessed her guilt and admitted illicit relationship

with other person prior to the marriage. It is further averred

that on complaint on 07.06.2012, the father and brother of the

Defendant-Appellant came Singhiya Hiwan and asked the

Plaintiff-Respondent that his suspicion is wrong and they

advised him to get the ultrasound test of the Defendant-

Appellant conducted. As per advice, ultrasound test of

Defendant-Appellant was conducted on 08.06.2012 at HI Tec

Scan Centre Janpul Chowk, Motihari and the report of the

ultrasound revealed that the age of fetus is eight weeks,

meaning thereby that the child was conceived prior to the date

of marriage, in spite of the fact that the petitioner never met

the respondent before the marriage. It is further averred that

after ultrasound report, the brother and father of the

Defendant-Appellant took her with them to their home and this

time, the Defendant-Appellant took away all her ornaments

and other belongings along with herself. Hence, he claims that

marriage is voidable and fit to be annulled on the ground of

pregnancy since prior to the marriage with a person other than

the Plaintiff-Respondent-husband. Hence, the Plaintiff-

Respondent prayed for decree of nullity for annulling the

marriage between the parties.

Patna High Court MA No.287 of 2019 dt.15-09-2023

3. On notice, the Defendant-Appellant appeared

before the Family Court and filed her written statement

wherein she has denied all the allegations made against her

and she has claimed that just next day of the marriage there

was physical relationship between the parties, leading to her

pregnancy. She has further averred that marriage was

solemnized on 19.04.2012 and a female child was born on

22.01.2013, which clearly shows that allegation against the

Defendant-Appellant is false. She has further deposed that the

child was born in Referal Hospital, Areraj. She has further

averred that after ousting by Plaintiff-Respondent, she was

living at her Mayake. She has further claimed that on account

of his illicit relationship with Sunit Devi, who is the wife of

his brother Sugrim Prasad, this baseless allegation has been

levelled against her. She has also claimed that after the

ultrasound report, the Plaintiff-Respondent came to know that

child is female, he pressurized her for abortion, but she was

not ready for abortion and hence, false allegation has been

levelled against her. It is also alleged that there was illegal

demand of dowry and on account of non-fulfillment of the

same, she was ousted from the matrimonial house on

12.09.2012 and hence, a complaint was lodged on 20.12.2012. Patna High Court MA No.287 of 2019 dt.15-09-2023

She has further claimed that she had never sexual relationship

with anybody prior to the marriage with the Plaintiff-

Respondent and she has prayed that the petition is liable to be

dismissed with cost.

4. On the basis of the pleadings of the parties,

following issues were framed by Ld. Family Court:

(i) Whether the petition, as framed, is

maintainable.

(ii) Whether the Defendant was pregnant

by other person prior to the marriage and it

was not in the knowledge of the Plaintiff.

(iii) Whether the Plaintiff established

physical relationship with Defendant after

knowledge of her pregnancy.

(iv) Whether the Plaintiff is entitled to any

relief.

5. During trial, the Plaintiff-Respondent examined

himself as a sole witness, whereas, the Defendant-Appellant

had also examined herself as a sole witness in defence of her

case.

6. The sole Plaintiff witness Ram Babu Kumar,

who is Plaintiff himself has been examined as P.W.-1. In his Patna High Court MA No.287 of 2019 dt.15-09-2023

examination-in-chief, he has reiterated his statement as made

in his petition. In his cross examination, he has deposed that

Defendant-Appellant is not at his home nor will he keep her at

his home. Defendant-Appellant has one daughter, who was

born after the marriage. He had denied the allegation that he

has ousted his wife after beating and snatching her belongings.

He admits that Defendant-Appellant has lodged a case against

him. However, he claims that he has lodged his case prior to

her. He has also deposed that he is ready for DNA test of the

child. He denied the allegation that he has illicit relationship

with his Bhabhi. He has also admitted that he has no

knowledge that with whom, his wife has illicit relationship. He

has also admitted that he has not seen the illicit relationship of

his wife with anybody with his own eyes. He has also deposed

that he cannot tell the names of those persons who have told

him about bad character of his wife. He has further deposed

that he is a Government Teacher and his wife is living at her

Mayake. He has also deposed that his father-in-law is no more

and the Defendant-Appellant-wife is living with her mother.

He has also deposed that he is able to maintain his wife,

however, his wife is leading a miserable life at her Mayake. He

has further deposed that he gets salary of ₹19,000/- per month. Patna High Court MA No.287 of 2019 dt.15-09-2023

He has further deposed that he is not aware whether his wife

has entered into second marriage. He wants to get rid of her so

that he can re-marry. He also denied the allegation that he has

filed this petition for the purpose of re-marriage.

7. Defendant Sunny Devi has examined herself as

a sole Defendant witness to support her case. Her

examination-in-chief has been filed by way of affidavit. In the

said affidavit, she has reiterated her statement as made in her

written statement. She has also deposed that her daughter is

presently five years old. She has also deposed that she has

filed maintenance case bearing No. 312 of 2014, as well as

harassment case bearing no. 14 of 2017, which is presently

pending in the court of Ld. ACJM, Motihari. She has also

deposed that she has got an order of court for payment of

maintenance of ₹5,000/- per month for herself and her

daughter and the same is being paid by her husband. She has

further deposed that for her and her daughter, nobody is there

to look after except her husband because her father has already

died.

7(i) In her cross-examination, she has deposed

that she is separate from her husband for last five years and

she has lodged criminal case for harassment and her husband Patna High Court MA No.287 of 2019 dt.15-09-2023

has gone to jail also in that regard. She has also deposed that

her father-in-law has been murdered and she has lodged a

murder case against her husband and his family members. She

has further deposed that she does not get payment of

maintenance regularly. Sometimes, she gets payment, but

sometimes not.

8. After considering the evidence on record and

submission advanced on behalf of both the parties, the petition

of the petitioner has been allowed declaring the marriage

between the parties void finding that the marriage between the

parties was solemnized on 19.04.2012 and after the marriage

the Appellant-wife joined the Respondent-husband at his

matrimonial home and on doubt expressed by Respondent-

husband, ultrasound was conducted on the Appellant-wife on

08.06.2012 to test her pregnancy and as per the ultrasound

report, she was found to be pregnant of eight weeks. It has

further been found that after the ultrasound, the Appellant-wife

was taken by her brother and father to their house. It has been

further found by the Ld. Family Court that on 08.06.2012, two

months of living of the Appellant-wife at matrimonial home

was not complete and hence the Appellant-wife being pregnant

of two months clearly shows that she was pregnant since prior Patna High Court MA No.287 of 2019 dt.15-09-2023

to the marriage. The Respondent-husband was not aware of

this pregnancy at the time of marriage. It has also been found

that prior to the marriage there was no cohabitation between

the parties. Hence, on the basis of ultrasound report, Ld.

Family Court came to the conclusion that she was pregnant

since prior to the marriage with a person other than the

Respondent-husband. Hence, marriage was declared null and

void by decree of nullity.

9. Ld. counsel for the Appellant submits that the

Ld. Family Court has failed to properly appreciate the facts

and law and hence court has reached the erroneous conclusion.

He further submits that in this case though the legitimacy of

the child is not expressly involved but the finding of the court

on the issue involved is bound to have serious repercussions

for the wife as well as the child. He further submits that the

Ld. Family Court has failed to appreciate that pregnancy test

by ultrasound cannot precisely find the exact date of

conception of the child. He further submits that the child is

born within 278 days of the Appellant-wife joining the

Respondent-husband at the matrimonial home after marriage

i.e. on 20.04.2012 and there was cohabitation between them

since then till 12.09.2012, when she was ousted by him. He Patna High Court MA No.287 of 2019 dt.15-09-2023

further submits that female child was born on 22.01.2013, i.e.,

within 278 days of first cohabitation between the parties and

as such as per Section 112 of the Evidence Act, there is

conclusive proof that the child is born to the parties. This

conclusive proof has not been rebutted by the Respondent-

husband by proving non-access to the Appellant-wife. Only

statement of the husband that he has never cohabited with the

Appellant-wife, is not sufficient to discharge the onus to prove

non-access.

10. However, Ld, counsel for the Respondent-

husband defends the judgement passed by the Ld. Family

Court saying that in view of the ultrasound report, the child

was not conceived during the marriage and the Appellant-wife

was carrying pregnancy since prior to the marriage and hence

there is no illegality committed by the Ld. Family Court while

allowing the petition filed by the Respondent-husband and

declaring the marriage void by decree of nullity.

11. In view of the submissions of the parties, the

following points arise for determination by this Court:

(i) Whether the Appellant-wife was at the time of

marriage pregnant by some person other than Respondent-

husband.

Patna High Court MA No.287 of 2019 dt.15-09-2023

(ii) Whether the Respondent-husband is entitled

to get his marriage with the Appellant declared as null and

void by decree of nullity under Section 12(1)(d) of Hindu

Marriage Act.

12. Before we proceed to discuss the points

arising for determination, it is imperative to see case laws or

authoritative Judicial Pronouncements regarding Burden of

Proof and Standard of Proof in matrimonial cases.

13. Hon'ble Supreme Court has elaborately

discussed the nature of burden of proof in matrimonial cases

in Dr. Narayan Ganesh Dastane Vs. Sucheta Narayan

Dastane as reported in 1975 (2) SCC 326 and law laid down

herein is still holding the field. In para 23 of the case, the

Hon'ble Apex Court has observed that, doubtless, the burden

must lie on the petitioner to establish his or her case for,

ordinarily, the burden lies on the party which affirms a fact,

not on the party which denies it. This principle accords with

commonsense as it is so much easier to prove a positive than a

negative. The petitioner must therefore prove that the

respondent has treated him with cruelty.

14. Coming to the Standard of Proof, we find

that some misconception had arisen on account of the use of Patna High Court MA No.287 of 2019 dt.15-09-2023

the words "Matrimonial Offences" to describe the misconducts

of Defendants under the Hindu Marriage Act. That is why

before authoritative decision of Hon'ble Full Bench of the

Supreme Court in Dr. Narayan Ganesh Dastane Vs.

Sucheta Narayan Dastane as reported in 1975 (2) SCC 326,

there were conflicting views. As per one view, matrimonial

cases are of civil nature and hence standard of proof in such

cases would be preponderance of probabilities whereas, as per

the another view, proof beyond reasonable doubt should be

standard of proof in matrimonial cases in view of the use of

word "matrimonial offences" in Hindu Marriage Act.

However, in Dr. Narayan Ganesh Dastane case (supra),

Hon'ble Full Bench of the Supreme Court clearly held that

matrimonial cases are civil in nature and preponderance of

probabilities will be standard of proof in trial of Matrimonial

cases under the Hindu Marriage Act, and not proof beyond

reasonable doubt which is applicable in criminal trials.

Hon'ble Supreme Court, in para 24 of Dr. Narayan Ganesh

Dastane case (supra) observed that the normal rule which

governs civil proceedings is that a fact can be said to be

established if it is proved by a preponderance of probabilities.

This is for the reason that under the Evidence Act, Section 3, a Patna High Court MA No.287 of 2019 dt.15-09-2023

fact is said to be proved when the court either believes it to

exist or considers its existence so probable that a prudent man

ought, under the circumstances of the particular case, to act

upon the supposition that it exists. The belief regarding the

existence of a fact may thus be founded on a balance of

probabilities. A prudent man faced with conflicting

probabilities concerning a fact-situation will act on the

supposition that the fact exists, if on weighing the various

probabilities he finds that the preponderance is in favour of the

existence of the particular fact. As a prudent man, so the court

applies this test for finding whether a fact in issue can be said

to be proved. The first step in this process is to fix the

probabilities, the second to weigh them, though the two may

often intermingle. The impossible is weeded out at the first

stage, the improbable at the second. Within the wide range of

probabilities the court has often a difficult choice to make but

it is this choice which ultimately determines where the

preponderance of probabilities lies. But whether the issue is

one of cruelty or of a loan on a pronote, the test to apply is

whether on a preponderance of probabilities the relevant fact is

proved. In civil cases this, normally, is the standard of proof to

apply for finding whether the burden of proof is discharged. Patna High Court MA No.287 of 2019 dt.15-09-2023

15. Ruling out application of "proof beyond

reasonable doubt" in matrimonial cases, Hon'ble Supreme

Court, in para 25 of Dr. Narayan Ganesh Dastane case

(supra) has observed that the proof beyond reasonable doubt

is proof by a higher standard which generally governs criminal

trials or trials involving inquiry into issues of a quasi-criminal

nature. A criminal trial involves the liberty of the subject

which may not be taken away on a mere preponderance of

probabilities. If the probabilities are so nicely balanced that a

reasonable, not a vascillating, mind cannot find where the

preponderance lies, a doubt arises regarding the existence of

the fact to be proved and the benefit of such reasonable doubt

goes to the accused. It is wrong to import such considerations

in trials of a purely civil nature. In para 26 of Dr. Narayan

Ganesh Dastane case (supra), Hon'ble Apex Court has

further observed that under the Hindu Marriage Act, nowhere

it is required that the petitioner must prove his case beyond

reasonable doubt. Section 23 confers on the court the power to

pass a decree if it is "satisfied" on matters mentioned in

clauses (a) to (e) of its sub-section of (1). Considering that

proceedings under the Act are essentially of a civil nature, the

word "satisfied" must mean "satisfied on a preponderance of Patna High Court MA No.287 of 2019 dt.15-09-2023

probabilities" and not "satisfied beyond a reasonable doubt".

Section 23 does not alter the standard of proof in civil cases.

16. Hon'ble Supreme Court, in para 27 of Dr.

Narayan Ganesh Dastane case (supra) has further observed

that the misconception regarding the standard of proof in

matrimonial cases arises perhaps from a loose description of

the respondent's conduct in such cases as constituting a

"matrimonial offence". Acts of a spouse which are calculated

to impair the integrity of a marital union have a social

significance. To marry or not to marry and if so whom, may

well be a private affair but the freedom to break a matrimonial

tie is not. The society has a stake in the institution of marriage

and therefore the erring spouse is treated not as a mere

defaulter but as an offender. But this social philosophy, though

it may have a bearing on the need to have the clearest proof of

an allegation before it is accepted as a ground for the

dissolution of a marriage, has no bearing on the standard of

proof in matrimonial cases.

17. Hon'ble Apex Court in para 10 of Shobha

Rani Vs. Madhukar Reddi as reported in AIR 1988 SC 121

has also observed that considering that proceedings under the

Hindu Marriage Act is essentially of a civil nature, the word Patna High Court MA No.287 of 2019 dt.15-09-2023

'satisfied' must mean 'satisfied on a preponderance of

probabilities' and not 'satisfied beyond a reasonable doubt'.

Section 23 of the Act does not alter the standard of proof in

civil cases.

18. Hon'ble Supreme Court in para 10 of A.

Jayachandra Vs. Aneel Kaur as reported in 2005(2) SCC 22

has observed that in a delicate human relationship like

matrimony, one has to see the probabilities of the case. The

concept, proof beyond the shadow of doubt, is to be applied to

criminal trials and not to civil matters and certainly not to

matters of such delicate personal relationship as those of

husband and wife. Therefore, one has to see what are the

probabilities in a case and legal cruelty has to be found out,

not merely as a matter of fact, but as the effect on the mind of

the complainant spouse because of the acts or omissions of the

other. Cruelty may be physical or corporeal or may be mental.

In physical cruelty, there can be tangible and direct evidence,

but in the case of mental cruelty there may not at the same

time be direct evidence. In cases where there is no direct

evidence, courts are required to probe into the mental process

and mental effect of incidents that are brought out in evidence.

It is in this view that one has to consider the evidence in Patna High Court MA No.287 of 2019 dt.15-09-2023

matrimonial disputes.

19. Hon'ble Kerala High Court, after referring

to A. Jayachandra case (supra), in para 19 of Mohandas

Panicker Vs. Dakshayani as reported in 2013 SCC Online

Ker 24493 has observed that the principles laid down in the

above decisions reiterate that in civil cases, preponderance of

probabilities is the standard to be adopted to prove the case.

No doubt, matrimonial cases are civil proceedings and the

Court can act upon preponderance of probabilities, especially

in adultery cases, since it is difficult to get direct evidence.

20. Now let us consider the points which have

been formulated for determination.

Point No.1

21. Before we consider this point, it would be

pertinent to refer to the relevant statutory provisions.

22. Section 12 of the Hindu Marriage Act :

"12. Voidable marriages.--

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds,namely:--

(a) ....

(b) ....

(c) ....

(d) that the respondent was at the time of the Patna High Court MA No.287 of 2019 dt.15-09-2023

marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-sec. (1), no petition for annulling a marriage--

(a) ....

(b) on the ground specified in clause (d) of sub-sec. (1) shall be entertained unless the court is satisfied--

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground."

23. As such, under Section 12(1)(d) of the Hindu

Marriage Act, the marriage may be annulled by a decree of

nullity if the Respondent was pregnant at the time of the

marriage by some person other than the petitioner. Three

conditions are however to be satisfied which are mentioned in

Sub-clauses (i) to (iii) of Clause (b) of Sub-sec. (2) of Section

12 of the Hindu Marriage Act. Those conditions are: (i) that

the Petitioner was at the time of marriage ignorant of the facts Patna High Court MA No.287 of 2019 dt.15-09-2023

alleged, (ii) that the proceedings have been instituted in the

case of marriage solemnized before the commencement of the

Act within one year of such commencement and in the case of

marriage solemnized after the commencement of the Act

within one year from the date of the marriage. Thus, a period

of limitation is fixed for filing an Application under this

Clause, (iii) that marital intercourse with the consent of the

petitioner has not taken place since the discovery by the

petitioner of the existence of the said ground

24. Compliance of the aforesaid conditions is a

condition precedent for annulment of marriage under this

clause. However, in the present case at hand, there is no

dispute regarding ignorance of alleged pregnancy of the

Appellant-wife and the limitation to file this petition. As such,

we are only required to see whether Respondent - husband has

proved that Appellant - wife was pregnant at the time of

marriage and whether there was marital intercourse with the

consent of the husband-Petitioner, who is Respondent herein,

after discovery of alleged pregnancy.

25. Before we proceed to consider the evidence

on record in this regard, it would be also imperative to refer to

Section 112 of the Evidence Act, which comes into play as the Patna High Court MA No.287 of 2019 dt.15-09-2023

finding on the issue has direct bearing on the legitimacy of the

child.

26. Section 112 of the Evidence Act, 1872 :-

"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."

27. Hon'ble Apex Court in para 34 of Aparna

Ajinkya Firodia v. Ajinkya Arun Firodia, as reported in

2023 SCC OnLine SC 161 has observed that Section 112

embodies the rule of law that the birth of a child during the

continuance of a valid marriage or within 280 days (i.e., within

the period of gestation) after its dissolution shall be

"conclusive proof" that the child is legitimate unless it is

established by evidence that the husband and wife did not or

could not have any access to each other at any time when the

child could have been conceived. The object of this provision

is to attach unimpeachable legitimacy to children born out of a Patna High Court MA No.287 of 2019 dt.15-09-2023

valid marriage. When a child is born during the subsistence of

lawful wedlock, it would mean that the parents had access to

each other. Therefore, the Section speaks of "conclusive

proof" of the legitimate birth of a child during the period of

lawful wedlock.

28. In para 35 of Aparna Ajinkya Firodia case

(supra) Hon'ble Apex Court has further observed that the

latter part of the Section is with reference to proof of the non-

access of the parents of the child to each other. Thus, the

presumption of legitimacy of the birth of the child is rebuttable

by way of strong evidence to the contrary.

29. In para 36 of Aparna Ajinkya Firodia case

(supra), Hon'ble Supreme Court has further observed that

the principle underlying Section 112 is to prevent an

unwarranted enquiry as to the paternity of the child whose

parents, at the relevant time had "access" to each other. In

other words, once a marriage is held to be valid, there is a

strong presumption as to the children born from that wedlock

as being legitimate. This presumption can be rebutted only by

strong, clear and conclusive evidence to the contrary. Section

112 of the Evidence Act is based on the presumption of public

morality and public policy.

Patna High Court MA No.287 of 2019 dt.15-09-2023

30. In para 37 of Aparna Ajinkya Firodia case

(supra), Hon'ble Apex Court has further observed that

"access" or "non-access" does not mean actual cohabitation

but means the "existence" or "non-existence" of opportunities

for sexual relationship. Section 112 refers to point of time of

birth as the crucial aspect and not to the time of conception.

The time of conception is relevant only to see whether the

husband had or did not have access to the wife. Thus, birth

during the continuance of marriage is "conclusive proof" of

legitimacy unless "non-access" of the party who questions the

paternity of the child at the time the child could have been

begotten is proved by the said party.

31. In para 38 of Aparna Ajinkya Firodia case

(supra), Hon'ble Apex Court has further observed that a

conjoint reading of Section 112 of the Evidence Act, with the

definition of "conclusive proof" under Section 4 thereof,

makes it amply clear that a child proved to be born during a

valid marriage should be deemed to be a legitimate child

except where it is shown that the parties to the marriage had

no access to each other at any time when the child could have

been begotten or within 280 days after the dissolution of the

marriage and the mother remains unmarried, that fact is the Patna High Court MA No.287 of 2019 dt.15-09-2023

conclusive proof that the child is the legitimate son of the man.

Operation of the conclusive presumption can be avoided by

proving non-access at the relevant time.

32. In para 39 of Aparna Ajinkya Firodia case

(supra), Hon'ble Apex Court has further observed that the

latter part of Section 112 of the Evidence Act indicates that if a

person is able to establish that the parties to the marriage had

no access to each other at any time when the child could have

been begotten, the legitimacy of such child can be denied. That

is, it must be proved by strong and cogent evidence that access

between them was impossible on account of serious illness or

impotency or that there was no chance of sexual relationship

between the parties during the period when the child must

have been begotten. Thus, unless the absence of access is

established, the presumption of legitimacy cannot be

displaced.

33. In para 40 of Aparna Ajinkya Firodia case

(supra), Hon'ble Apex Court has further observed that thus,

where the husband and wife have co-habited together, and no

impotency is proved, the child born from their wedlock is

conclusively presumed to be legitimate, even if the wife is

shown to have been, at the same time, guilty of infidelity. The Patna High Court MA No.287 of 2019 dt.15-09-2023

fact that a woman is living in adultery would not by itself be

sufficient to repel the conclusive presumption in favour of the

legitimacy of a child. Therefore, shreds of evidence to the

effect that the husband did not have intercourse with the wife

at the period of conception, can only point to the illegitimacy

of a child born in wedlock, but it would not uproot the

presumption of legitimacy under Section 112.

34. In para 41 of Aparna Ajinkya Firodia case

(supra), Hon'ble Apex Court has further observed that the

presumption under Section 112 can be drawn only if the child

is born during the continuance of a valid marriage and not

otherwise. "Access" or "non-access" must be in the context of

sexual intercourse that is, in the sexual sense and therefore, in

that narrow sense. Access may for instance, be impossible not

only when the husband is away during the period when the

child could have been begotten or owing to impotency or

incompetency due to various reasons or the passage of time

since the death of the husband. Thus, even though the husband

may be cohabiting, there may be non-access between the

husband and the wife. One of the instances of non-access

despite co-habitation is the impotency of the husband. If the

husband has had access, adultery on the wife's part will not Patna High Court MA No.287 of 2019 dt.15-09-2023

justify a finding of illegitimacy.

35. In para 43 of Aparna Ajinkya Firodia case

(supra), Hon'ble Apex Court has further observed that even

the result of a genuine DNA test cannot escape from the

conclusiveness of the presumption under Section 112 of the

Evidence Act. If a husband and wife were living together

during the time of conception but the DNA test reveals that the

child was not born to the husband, the conclusiveness in law

would remain irrebuttable. What would be proved, is adultery

on the part of the wife, however, the legitimacy of the child

would still be conclusive in law. In other words, the conclusive

presumption of paternity of a child born during the subsistence

of a valid marriage is that the child is that of the husband and

it cannot be rebutted by a mere DNA test report. What is

necessary to rebut is the proof of non-access at the time when

the child could have been begotten, that is, at the time of its

conception.

36. Hon'ble Apex Court in para 18 of

Thatchinamoorthy Vs. Sivagamy as reported in 2010 (2)

MWN (Civil) 337 has observed that law presumes strongly in

favour of legitimacy of off-spring. Section 112 of Evidence

Act embodies a rule of law that a child born during the Patna High Court MA No.287 of 2019 dt.15-09-2023

continuance of a valid marriage or during 280 days (within the

period of gestation), it shall be conclusive proof that it is

legitimate unless it is proved by clear and strong evidence that

the husband and wife did not and could not have any access at

any time when the child could have been begotten.

37. Hon'ble Apex Court in para 9 of Sham Lal

Alias Kuldip Vs. Sanjeev Kumar & Ors. as reported in

(2009) 12 SCC 454 has observed that Section 112 of the

Evidence Act is based on English Law. Section 112 reproduces

the rule of English Law that it is undesirable to inquire into the

paternity of a child when the mother is a married woman and

the husband had access to her. Adultery on her part will not

justify finding of illegitimacy if husband has had access.

38. Hon'ble Apex Court in para 10 of Kamti

Devi (Smt) & Anr. Vs. Poshi RAm as reported in (2001) 12

SCC 311 has observed that we may remember that Section

112 of the Evidence Act was enacted at a time when the

modern scientific advancements with deoxyribonucleic acid

(DNA) as well as ribonucleic acid (RNA) tests were not even

in contemplation of the legislature. The result of a genuine

DNA test is said to be scientifically accurate. But even that is

not enough to escape from the conclusiveness of Section 112 Patna High Court MA No.287 of 2019 dt.15-09-2023

of the Act e.g. if a husband and wife were living together

during the time of conception but the DNA test revealed that

the child was not born to the husband, the conclusiveness in

law would remain irrebuttable. This may look hard from the

point of view of the husband who would be compelled to bear

the fatherhood of a child of which he may be innocent. But

even in such a case the law leans in favour of the innocent

child from being bastardised if his mother and her spouse were

living together during the time of conception. Hence the

question regarding the degree of proof of non-access for

rebutting the conclusiveness must be answered in the light of

what is meant by access or non-access as delineated above.

39. Hon'ble Apex Court in para 21 of Goutam

Kundu Vs. State of West Bengal & Anr. as reported in

(1993) 3 SCC 418 has observed that this section is based on

the well-known maxim pater est quem nuptiae demonstrant

(he is the father whom the marriage indicates). The

presumption of legitimacy is this, that a child born of a

married women is deemed to be legitimate, it throws on the

person who is interested in making out the illegitimacy, the

whole burden of proving it. The law presumes both that a

marriage ceremony is valid, and that every person is Patna High Court MA No.287 of 2019 dt.15-09-2023

legitimate. Marriage or filiation (parentage) may be presumed,

the law in general presuming against vice and immorality.

40. In para 22 of Goutam Kundu case (supra),

Hon'ble Apex Court has further observed that 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.

41. Hon'ble Apex Court in para 12 of Smt.

Dukhtar Jahan Vs. Mohammed Farooq as reported in

(1987) 1 SCC 624 has observed that another serious infirmity

noticed in the judgment is that the learned Judge has

completely lost sight of Section 112 of the Indian Evidence

Act. 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 Patna High Court MA No.287 of 2019 dt.15-09-2023

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.

42. Hon'ble Madhya Pradesh High Court in

Nandkishore Vs. Smt. Munnibai as reported in 1981

Madhya Pradesh Series 585 has observed that imputing

unchastity to a woman is charge of a very serious nature. The

charge, if established, may result in serious consequences. Not

only that such a woman be condemned in the society and be

lowered in the eyes of her relatives and associates, but may

also suffer a child, if any, being called a bastard. It shall,

therefore, be just to seek for a more cogent and convincing

evidence in such cases than the one which may only be

sufficient to create a doubt.

43. Hon'ble Apex Court in para 160 of

Mahendra Manilal Nanavati Vs. Sushila Mahendra Patna High Court MA No.287 of 2019 dt.15-09-2023

Nanavati as reported in AIR 1965 SC 364 has observed that

the notional period of pregnancy is calculated from the first

day of the menstruation preceding the conception and it is on

this account that 14 days are added to the period of pregnancy

from the actual date of conception. On the basis of notional

calculation, the fully mature child is born after 280 days. On

the basis of the date of conception, the child is born between

265 and 270 days. The development of the foetus undoubtedly

depends on its age as counted from the date of conception and

it is for this reason that the books on obstetrics mostly deal

with the development of the foetus on the basis of days or

weeks after conception, for a period of about two months and

thereafter they began to note its development with respect to

the end of the third and consecutive months. This must be due

to the fact that by that time a difference of about a fortnight in

the period of gestation does not bring about a substantial

difference in the description of the development of the foetus.

After all, the entire knowledge with respect to the

development of the foetus with respect to the period of

gestation is based on a consideration of a large number of

cases and then arriving at some generalised conclusion about

the development of the foetus corresponding to its age from Patna High Court MA No.287 of 2019 dt.15-09-2023

the date of conception.

44. Now coming to the case at hand, we find

that marriage between the parties was solemnized on

19.04.2012 and the wife joined the Respondent - husband at

his matrimonial home the next day i.e., 20.04.2012 and

female child is born on 22.01.2013. As such, after calculation

we find that the child was born within 278 days of the wife

joining the husband at his matrimonial home. Here, it would

be pertinent to mention that general gestation period of a child

is 280 days. This general gestation period of 280 days has been

enshrined in Section 112 of the Evidence Act also. This is also

relevant to mention that this 280 days is upper limit of the

gestation period and not the lower limit. The child may be

born few days prior to 280 days. As such, it goes without

saying that the child born within 278 days has been conceived

on or after 20.04.2012 when the Appellant-wife joined the

Respondent-husband at his matrimonial home after the

marriage.

45. Hence, it is conclusively proved that the

Respondent has fathered the child. The Appellant was not

carrying pregnancy since prior to the marriage.

46. The aforesaid conclusive proof can be Patna High Court MA No.287 of 2019 dt.15-09-2023

rebutted only by way of proving by the husband that he had no

access to the appellant wife.

47. In this context, we find that as per evidence of

Respondent-husband, the Appellant-wife joined the

Respondent-husband on 20.04.2012 following the marriage on

19.04.2012 and she was taken by her father and brother to

their house on 08.06.2012 after the ultrasound pregnancy test.

However, as per the Appellant - wife after joining her husband

at his matrimonial home on 20.04.2012 she continued to be at

her matrimonial home till 12.09.2012 when she was ousted by

the Respondent-husband. Even going by the admitted period

from 20.04.2012 to 08.06.2012 during which the Appellant -

wife stayed with Respondent - husband at his matrimonial

home, it is apparent that the Respondent - husband had access

to his Appellant - wife when the born child could have been

begotten. In such situation, onus is on the husband to show

that he had no access. We have already seen that access does

not necessarily mean actual cohabitation. It only amounts

opportunity of cohabitation. Hence, statement of the

Respondent - husband that he has no cohabitation with the

Appellant - wife has no meaning in view of the fact that the

Appellant - wife stayed with him for 49 days since 20.04.2012 Patna High Court MA No.287 of 2019 dt.15-09-2023

when he had access to his wife. In such situation, he could

prove non-access only by way of pleading impotency, serious

illness or impossibility of cohabitation with the Appellant -

wife. But there is no such pleading or evidence on the part of

the husband. In such situation, the Respondent-husband is not

permitted to rebut the conclusive proof. No evidence scientific

or otherwise can be admissible to dispute the paternity of the

child. Even otherwise, pregnancy test by ultrasound is not

fully accurate. On the basis of such test one cannot claim on

which date the child was precisely conceived. There is always

possibility of error of few days.

48. As such we find that the Appellant-wife was

not pregnant on the date of marriage. She conceived the child

during 20.04.2012 to 08.06.2012 when she was staying with

her husband at the matrimonial home and when both had

access to each other.

49. Even without application of Section 112 of

the Evidence Act, we find that the Respondent-husband has no

merit in the case, because the pregnancy test by ultrasound is

not fully perfect technique to determine the exact date of

conception of the child. That is why the findings in the test is

given in the term of week and not in days and even in the term Patna High Court MA No.287 of 2019 dt.15-09-2023

of week, there is scope of error. If we calculate the period from

20.04.2012 to 08.06.2012 during which both parties were

staying together, it would be 49 days i.e. seven weeks, just one

week short of eight weeks. There is always scope of such error

in the pregnancy test.

50. Moreover, there is no DNA test report of the

child and the Respondent-father on record. We find that

though during evidence, the Respondent-husband was ready

for DNA test but he has never applied to Ld. Family Court for

direction of such test, whereas onus was on him to prove that

he has not fathered the child, though we are afraid that he

could have got such direction without proving non-access to

his wife during the period the child could have been

conceived. Roving inquiry into the paternity of a child is

prohibited in view of Section 112 of the Evidence Act. Our

legal framework leans in favour of the legitimacy of a child

and frowns upon his/her bastardy. Husband is strongly

presumed to be father of the child born to his wife. The

presumption could be rebutted only when the husband proves

that husband and wife had no access to each other during the

period when the child could have been conceived.

51. Hence, even without application of Section Patna High Court MA No.287 of 2019 dt.15-09-2023

112 of the Evidence Act, we find that the Appellant-wife was

not carrying pregnancy prior to the date of marriage.

52. Now coming to the compliance of the

condition as provided in Section 12(2)(b)(iii) of the Hindu

Marriage Act, the husband is also required to prove that after

knowledge of the claimed ground for nullity of the marriage,

he had no marital intercourse with the Appellant-wife. Such

condition for maintainability of the petition has been complied

with by the Respondent-husband, who was petitioner before

the Family Court, by pleading and deposition that after the

ultrasound test on 08.06.2012, the wife was taken by her father

and brother to their house from the matrimonial home.

Point No.2

53. In view of the finding of Point No. 1, the

Respondent - husband is not entitled to get his marriage with

the Appellant-wife declared void by decree of nullity.

54. In view of the aforesaid findings, we are of

considered opinion that the impugned judgment is not

sustainable in the eye of law. The impugned judgement dated

18.04.2019, passed by Ld. Principal Judge, Family Court, East

Champaran, Motihari in Matrimonial (Divorce) Case No. 250

of 2012 is set aside. Miscellaneous Appeal No. 287 of 2019 is Patna High Court MA No.287 of 2019 dt.15-09-2023

allowed. However, both the parties shall bear their own costs.

Let the decree be drawn accordingly.

(Jitendra Kumar, J)

(P. B. Bajanthri, J) Amrendra/-

AFR/NAFR                AFR
CAV DATE                02.08.2023
Uploading Date          15.09.2023