DHEDU SHEORAM Vs. MALHANBAI DHEDU

JUDGEMENT

(1.) THIS appeal and the other appeal No. 9 of 1964 arise from cross-petitions made by the husband and the wife under the Hindu Marriage Act, 1955, both of which were decided in favour of the wife. The petition by the husband was for divorce under Section 13 of the Hindu Marriage Act, on the ground that the wife was living in adultery. The wife's petition was under Section 9 of the Act for restitution of conjugal rights. The real controversy between the parties is whether a child, whom the wife gave birth during the continuance of a valid marriage between the parties, was illegitimate. The husband refused to allow the wife to enter his house from the moment he discovered that she was pregnant Both the cases were consolidated in the Court below. Evidence was recorded only once, to be used in both the cases. It is, therefore, convenient to dispose of both the appeals by a common judgment.

(2.) THE parties were married in 1957. The wife gave birth to a male child on 25th august 1960 during the subsistence of the marriage. The case for the appellant husband i" that at no time did he cohabit with his wife; that one month prior to diwali of the year 1959, the wife went away to her parents' house and thereafter did not return until June 1960, when her father brought her to his house, but at that time she was visibly pregnant; that the petitioner's father refused to take her back as the conception was illegitimate; that in a panchayat held on or about 4th july 1960, the wife admitted that her pregnancy was of 7 months; and that according to the petitioner's calculations, she must have conceived sometime in november or December 1959 so that the child was conceived at a time when he had no access to his wife.

(3.) THE respondent wife's case is that the child is legitimate. She used to sleep with her husband after the marriage and that the child is from no one else but her husband.