HAMZA Vs. SARA

JUDGEMENT

(1.) The paternity of the second respondent (second defendant) is in dispute in this appeal. The putative father, the appellant filed the suit out of which the appeal arises for a declaration that he is not the father of the second respondent and for a consequential injunction to restrain the respondents from taking steps for getting maintenance from him for the second respondent. First respondent who was the wife of the appellant was the first defendant in the suit. Both the courts below found against the appellant and have dismissed the suit concurrently.

(2.) In the plaint the appellant admitted the fact of his marriage with the first respondent on 11th June 1981 and also the fact of birth of the second respondent on 22nd December 1981 while the marriage was subsisting. The appellant has dissolved the marriage with the first respondent by Talak on 27th December 1981. According to the appellant the first respondent was pregnant by six months even at the time of marriage and that fact was suppressed from him at the time of marriage. He came to know about it only later. It is his further case that he had no access or opportunity for sexual intercourse with the first respondent prior to the marriage and as such second respondent is not his son. In the circumstances, the appellant has filed the suit with the prayers already indicated.

(3.) First respondent on her behalf and on behalf of second respondent, her minor son, denied specifically the claim of the appellant that he was not aware of the fact that she was pregnant at the time of marriage. It was specifically asserted that the appellant had sexual intercourse with her prior to the marriage and that she became pregnant as a result of such sexual intercourse. According to her the marriage was conducted mainly for the purpose of formalising the relationship they had even prior to the date of marriage. In the circumstances it was contended that the marriage is fully valid and the second respondent is the son of the appellant.