MAHABIR SINGH Vs. MAYA DEVI

JUDGEMENT

(1.) The appellant was married to the respondent according to Hindu rites on April 16, 1972. They lived together as husband and wife for some time. In August, 1973, the appellant joined the military service as a Craftsman. He came on leave on January 20, 1974 and lived with the respondent at his house upto February 13, 1974. After this, he came again on leave after a period of 14 months on April 24, 1975. During this period, the respondent had gone to her parents' house. The appellant went to fetch her from there. To his utter disappointment he found that the respondent had developed pregnancy and the same was about eight to nine months old. The appellant filed an application for divorce under Section 13 of the Hindu Marriage Act (hereinafter called the Act) on May 1, 1975. The respondent in her written statement denied all the allegations, Inter alia she contended that the child had been born from the loins of the appellant. On the pleadings of the parties, the following issues were framed :-

(2.) The appellant, in whose favour the decree of divorce was passed, preferred the appeal only against the grant of maintenance. The respondent filed cross-objections. So far as the cross-objections are concerned, two preliminary objections were raised on behalf of the appellant. It was contended that through the provisions of the Code of Civil Procedure, (hereinafter called the Code), were applicable, as the appellant has challenged only a part of the order regarding maintenance, the other part of the order or the decree regarding divorce has not been challenged, the respondent was not entitled to file the cross objections. A perusal of Order XLI Rule 22 of the Code admits of no such exception. Once an appeal against an order is filed : may be only a part of the order is challenged; the respondent is entitled to file cross-objections. It was then contended that the cross-objections had not been filed within limitation. This contention also has no substance. In fact, the argument of the learned counsel for the appellant, is that the respondent had been served twice; once in the miscellaneous application. In the application the notice had been served on the respondent by affixation on December 1, 1976. In the notice sent for the purpose, it was specifically mentioned that the farzi date in the main appeal was also fixed for December 10, 1976. This notice was legally effected may be by affixation on December 4, 1976 and the cross-objections were filed on February 10, 1977. According to the learned counsel, the same were filed after the expiry of limitation. However, a perusal of the record shows that notice in the main appeal were served on the respondent on January 29, 1977. Clearly from this date, the cross-objections were filed within limitation.

(3.) It will be proper to dispose of the cross-objections in the first instance because the decision on the cross-objections will have a material bearing on the merits of the appeal. According to the learned counsel for the respondent, the child to the respondent was born in November, 1974, According to the admission of the appellant, he had come on leave and lived with the respondent up-to February 13, 1974, and, therefore, it cannot be said that the child was not from the loins of the appellant. A perusal of the statement of the respondent, however, shows that the respondent delivered of the child in the hospital at Meerut. Therefore, date of birth of the child must have been in the record of the hospital. No effort was made on behalf of the respondent to produce that record or to prove the exact date of birth of the child from any other relevant documentary evidence. Besides, in her cross examination, the respondent clearly admitted that after the departure of the appellant on completion of his leave period, she had menses. From this, it is clear that upto the time the appellant lived with the respondent, pregnancy had not taken place. In these circumstances, the only inference is that the respondent got the pregnancy in the absence of the appellant from any person other than the appellant and the child was thus not from the loins of the appellant.