PREM SINGH Vs. DILLA DEVI

JUDGEMENT

(1.) This to appeal arises from a decree dismissing the appellant's petition for divorce under Section 13 of the Hindu Marriage Act The ground, on which dissolution of the marriage by a decree of divorce was sought, was that a daughter bora to the respondent on the 2nd Aug., 1980 was not begotten upon her by the appellant and the respondent was thus guilty of having had, after marriage, voluntary sexual intercourse with a person other than her husband. That person was not implead-ed as a co-respondent nor was he named in the petition tor divorce or at any stage of the proceedings. Instead it was stated in the petition that the respondent had visited tihe appellant on the 28th Dec., 1979 and stayed with him over night at his house at Mathura where he was posted at that time, though under orders of transfer to Dehra-dun. According to the appellant, he did not have any sexual intercourse with the respondent during the course of her stay from the 28th to the 29th Dec., 1979.

(2.) The parties were married on the 13th Dec., 1964. They lived together for some years and had a son born of the marriage in or about the year 1972. The respondent was admittedly staying with the son at the appellant's village home on the hills in district Tehri Garhwal and the appellant was employed as a Junior Engineer under the State Electricity Board. He was posted at Mathura in Dec., 1979, and was posted at Debradun when the divorce petition was filed in the year 1981.

(3.) The respondent asserted that the daughter born to her on the 2nd Aug., 1980, was conceived when she had sexual intercourse with the appellant on the night between the 28th and the 29th Dec., 1979 and was born somewhat premature because she had a fall while carrying a load of tihe grass on her head.