DEVESH PRATAP SINGH Vs. SRIMATI SUNITA SINGH

JUDGEMENT

(1.) The appellant/husband petitioned for grant of a decree of divorce under the provisions of Hindu Marriage Act, 1955 (for short 'the Act') on the allegation that the respondent/wife gave birth to a female child as a result of her illicit sexual connection with a person outside the wed-lock. The learned trial Judge dismissed the petition of the husband on the ground that presumption of legitimacy of the child under Sec. 112 of the Evidence Act has not been satisfactorily rebutted by the husband by proof of non-access to the wife which could not have led to pregnancy and delivery of the wife.

(2.) For deciding the appeal preferred by the husband, few undisputed facts may first be set out before discussing the legal submissions made by the counsel on behalf of the parties.

(3.) The parties were married on 29-11-1985 at Panna. After the marriage, they lived in the house of the appellant at village Majan, district Sidhi. On 16-12-1985 the wife went to her parents at Panna. On 8-1-1986 the husband also went to Panna and stayed with the wife in her parent's house up to 12-1-1986. On 18-4-1986, the husband took back the wife to his village. Some time in May 1986 Dr. Geeta Banerjee (P.W. 4) medically examined the wife during her pregnancy. The wife delivered a female child after caesarean operation at Rewa on 31-10-1986. According to the husband, Dr. Badri Singh (P.W. 2) who is related to him as his brother-in-law and in whose quarter at Rewa the husband and wife had, for a short period, lived, saw the X-ray report of the wife during her delivery, and raised a doubt that the child inside the womb was not matured for a cesarean operation. Then he questioned the wife. She admitted that she had illicit sexual relationship with Rafique Mohammad Khan of Panna.