MAHESH Vs. MADHU

JUDGEMENT

(1.) 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 favour 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 abovesaid 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 abovesaid 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.