CHANDRAMATHI Vs. PAZHETTI BALAN

JUDGEMENT

(1.) This appeal is by a wife challenging the decree for divorce granted by the Court below on a petition by the husband. Parties are Ezhavas. They were married on 2-9-1969 and two children have been born in the marriage. The wife was residing in the husband's house. After the two children were so born, the petitioner-husband is said to have undergone a bilateral vasectomy operation on 27-7-1976. According to the petitioner he thereby lost his capacity to procreate children. The operation was at the Primary Health Centre, Ollur and was done by P. W. 1 Doctor Easby. The wife became pregnant later. She was taken to her house on 17-11-1977. According to the petitioner, his wife attempted to commit suicide on 23-11-1977 and though it was unsuccessful she had to be admitted to the hospital. It is said that on examination she was found to have pregnancy, six weeks old and such pregnancy was terminated by the doctor to save her life. According to the petitioner he thereafter subjected himself to a semen test to see whether he had fertility and it was proved by the semen-test conducted on 31-11-1977 that there was no spermatozoa in the semen. Consequently, according to him he must be found to have lost the capacity to procreate and therefore, his wife must be found to have conceived through another man. It is also mentioned that his brother was responsible for her pregnancy. This case of the petitioner was denied by the wife. According to her the petitioner was behaving cruelly towards her, the vasectomy operation undergone by the petitioner was not effective, because of that he had to be admitted later to the E. S. I. hospital, it was not true that his semen had been tested or that it had been found that he had no capacity to beget children and also that it was not true that the respondent became pregnant by illicit intercourse with the petitioner's brother.

(2.) The only point that arose for decision by the learned Sub-Judge was whether the respondent had voluntary sexual intercourse with any person other than the petitioner since, that was, in essence, the case of the petitioner. This would in turn depend upon the question whether the husband had undergone vasectomy operation and if so whether such operation was effective enough to prevent pregnancy despite sexual intercourse. This is so because the husband has no case that he had no sexual intercourse with his wife during the period she could have conceived. His only case was that despite that there could not be any pregnancy because of the vasectomy operation he had which, by subsequent verification on 30-11-1977, had been found to be effective, since it yielded negative result. The fact that the wife had become pregnant and that pregnancy was terminated is evident from Ext. A3 certificate issued by P. W. 2 and that question is no longer in issue.

(3.) The learned Sub-Judge found on the basis of Ext. A1 and the evidence of the Doctor examined as P. W. 1 that the petitioner had undergone vasectomy operation on 27-7-1976. He also found that the semen test said to have been conducted on 30-11-1977 and evidenced by Ext. A2 certificate showing a negative result would be sufficient to prove that the petitioner had no capacity to procreate. Ext. Al is an identity card issued for the purpose of vasectomy operation cf the petitioner on 27-7-1976. P. W. \ does not identify the petitioner as the person who was operated upon by him on that day. He speaks with reference to Ext. Al. But coupled with the evidence of the petitioner as P. W. 3 the fact that he underwent a vasectomy operation cannot be doubted. That of course is also not denied. The question then is, can the vasectomy operation by itself be taken in all cases to be effective without any further evidence of a test for ascertaining the presence or absence of spermatozoa? P. W. 1 speaks to the case that up to three months after the vasectomy operation spermatozoa may be found in the semen. This would be the case if the operation is successful. But if the operation is not entirely successful, naturally spermatozoa may be found even after the period of three months. Evidently this is the reason why in the evidence P. W. 1 says "we issue leaflets advising semen test after three months". Therefore, failure of such operations cannot be ruled out. It may not be sufficient merely to show that a person has undergone a vasectomy operation, but it must also be shown that such vasectomy operation was not a failure. That is normally shown by the result of a semen test after three months or more of the operation. There may be many reasons why such operation may result in failure and it may not be necessary for the purpose of this case to consider them because on the evidence itself it is seen that it is only a subsequent test that can assure the success of the vasectomy operation. Evidently that is the reason why reliance is placed on Ext. A 2 semen test which is said to have been conducted by the petitioner later. If no such test had been held and there was only the evidence of the Doctor showing that the petitioner had undergone the operation, that by itself would not have been sufficient to substantiate the plea that the child could not have been born to the petitioner. The presumption that may arise under the Evidence Act that the child born during the wedlock is born to the husband will necessarily apply in such a case. Section 112 provides for conclusive proof of legitimacy of a child born during the continuance of a valid marriage. The only exception contemplated by the section is proof that the parties to the marriage had no access to each other at any time when the child could have been begotten. That the husband had undergone a successful vasectomy operation is a circumstance which will negative the presumption of the paternity of the child that could have been begotten only after such operation was evidently not envisaged at the time the section was enacted. The answer, perhaps is that the term "access" has to be understood as opportunity to procreate and not merely opportunity for sexual intercourse. We are not examining that question here further as that may not be necessary for this case.