KEWAL RAM Vs. JIJI BAI

JUDGEMENT

(1.) The appellant was petitioner in the lower Court. He brought a suit for a decree of divorce against his wife, the respondent, on the ground that she had sexual intercourse with some person other than him. This fact was denied and issue was raised and tried. The petitioner /appellant examined himself and his brother and the respondent examined himself alone. The learned District Judge, who tried the case, dismissed the suit holding that the appellant could not prove that the respondent had sexual intercourse with some person other than the appellant. Hence this appeal under Sec. 28 of the Hindu Marriage Act, 1956.

(2.) The relevant facts are that the parties were married somewhere in the year 1976. They lived together for two years. Thereafter, the respondent left her matrimonial home and has since then not joined the company of the appellant. She delivered a child on 7-11-1980 at her mother's place. According to the appellant, he is not the father of this child because the respondent left her matrimonial home four days prior to 7-8-1979 and that thereafter he never visited her and did not have any sexual intercourse with her. As against this, the respondent asserts that she left the appellant's house in the last week of Dec., 1979 where after too the appellant had been visiting her at her mother's place at Budhni and had sexual intercourse with her at three or four occasions. Thus, she alleges that she got the child from the appellant alone.

(3.) After 'going through the entire evidence and looking to the probabilities of the case, I am satisfied that the view taken by the lower Court is not correct. In fact, the evidence has not been duly scrutinised by the lower Court and important pieces of evidence have been overlooked. The lower Court, however, is correct in saying that in view of section 112 of the Evidence Act, it has to be presumed that the child born is legitimate as the marriage the respondent and the appellant subsisted on the date when the child was born to the respondent. It was also rightly pointed out that it was for the appellant to have let in proper material to show that he had no access to the respondent during the period of desertion. I am, however; not in agreement with the lower Court that the presumption available under Sec. 112 of the Evidence Act has not been rebutted in this case.