RAJESH KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) LIST has been revised. Sri Nitin Srivastava, learned counsel for the revisionist and learned counsel appearing for private opposite party nos.2 and 3 are present. This criminal revision has been filed against order dated 18.11.2009 passed by Additional Judge, Family Court, Allahabad in Suit No.18 of 2003 whereby maintenance in favour of opposite parties nos.2 and 3 has been awarded from the date of order. Learned counsel for the revisionist has submitted that opposite party no.2 had treated the revisionist with mental and physical cruelty and opposite party no.2 was pregnant at the time of marriage. The marriage was solemnized by playing fraud and concealing the fact of pregnancy and opposite party no.3 is not the daughter of revisionist. Impugned order dated 18.11.2009 has been passed without application of mind and without considering the evidence of revisionist. Court below has ignored medical papers filed by the revisionist and has not taken into consideration the date of marriage and the date of delivery of child which was within 9 months of the marriage. The child was born within 8 months and three days only therefore, the impugned order is unjust and biased. Learned counsel appearing for opposite party nos.2 and 3 has defended the impugned order.

(2.) THERE was no dispute to the fact that the marriage of revisionist was solemnized with opposite party no.2 on 23.2.1999. As per the grounds mentioned in the revision, the child has taken birth within 258 days from the date of first night. As per grounds mentioned in the revision, the first night was on 27.2.1999 therefore, the child took birth within 254 days. Roughly 254 days comes to 8 and half months and delivery within 8 and half months cannot be said to be unnatural. In the evidence it has come that the opposite party no.2 remained with revisionist for a period of 9 months and there were physical contacts between them. Learned Court below has discussed this aspect at length and because the doctor who issued the certificate of pregnancy was not examined in the Court therefore, the medical report paper no. 19-Kha/3 was not relied upon and it was found that the said daughter which is opposite party no.3 was born out of the wedlock of revisionist and opposite party no.2. I do not find any error in this finding which is based on cogent reasons and the evidence has been properly appreciated.

(3.) SECTION 112 of Indian Evidence Act provides as under :- 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 excess to each other at any time when he could have been begotten.