Court:Delhi High Court
Bench: JUSTICE J Chandra
Madan Lal vs Sudesh Kumari And Anr. on 5 March, 1987
Equivalent citations: AIR 1988 Delhi 93, 1987 (13) DRJ 167
Birth of Illegitimate Child , Divorce Granted
(1) This is an appeal by appellant Madan Lal (hereinafter to be referred to as the ‘husband’) against the judgment dated 8-12-1983 passed by Shri R.C. Jain, Additional District Judge, Delhi whereby the petition of the husband under Section 13(l)(i) and (ia) of the Hindu Marriage Act, 1955, as amended, seeking dissolution of his marriage by a decree of divorce, against his wife respondent No. 1 Sudesh Kumari (hereinafter to be referred to as the ‘wife’) was dismissed with costs.
(2) Parties were married to each other on 10-2-1977 in accordance with Hindu Rites and thereafter they lived together as husband and wife in premises No. 915, Dr. Mukherjee Nagar, Delhi. On or about 10-8-77 the wife told the husband that she was not feeling well and thereafter on 12-8-1977 she complained of some pain in her abdomen and the husband immediately took her to Hindu Rao Hospital and got her admitted in the maternity ward where she gave birth to a male child at 12.35 A.M. on the night intervening 13/14th August 1977. The birth of this child, thus, took place after six months and four days of the marriage. The child was alive and weighed 5″ pounds and was born after 6 months and 4 days of the marriage. It is alleged that this child was illegitimate having been conceived by the wife much prior to the marriage and this fact shocked him and also put him to shame and was tantamount to cruelty on the part of the wife towards him.
(3) The husband also alleged acts of adultery on the part of the wife with respondents 2 and 3 Laxman Dass and Jawahar Lal both before and after the solemnisation of the marriage, as per her own admission, and also one specific act of voluntary sexual intercourse of the wife with respondent No. 2 Laxman Dass in a room of a hotel in Hardwar in the evening of 28-6-1977. After returning from Hardwar the wife left for her parent’s house where she stayed for six weeks and where after she returned to the husband’s house and it was thereafter that on the night of 13/14th August 1977 she gave birth to the aforesaid child. Laxman Dass is the real maternal uncle of the husband and is also the real brother-in-law of the wife being the husband of her elder sister Pushpa and who had arranged the marriage between the parties as he had undue influence over the families of both of them.
(4) The wile, in her written statement, conceded the birth of a child to her on 13-8-1977 in Hindu Rao Hospital but. she asserted that it was a premature delivery and, thus, denied the allegation of illegitimacy of the child. The allegations regarding adultery or any sexual intercourse by her with respondent No. 2 in a room at Hardwar, were denied by her as false concoctions on the part of the husband. On the other hand, she asserted that the husband wanted to fleece money from her parents who are extremely poor and had also put up a demand on them for a sum of Rs. 10,000.00 when he visited Sona on 3-12-1977 and stayed there up to 5th evening.
(5) She denied that she had been residing with her parents at Sona since mid September 1977 onwards, by asserting to the contrary that she, after the birth of the child, stayed with the husband up to 18/19th November 1977 and that he himself on 19-11-1977 accompanied her to her parents. house at Sona where after he again visited Sona on 3-12-1977 and stayed there up to 5th evening and it was on that occasion that he came up with the aforesaid demand of Rs. 10,000.00 from her parents and insisted that he must be paid that much amount failing which he would not consent to take her back but her parents obviously could not meet his demand and so he declined to take her with him and since then she has been residing with her parents at Sona. She also asserted that the petition had been filed by the husband in collusion with respondent No. 2 who is his real maternal uncle and that both of them were bent upon defaming her.
(6) The allegations of the wife were controverter by the husband in the replication.
(7) The learned trial court framed the following issues :-
1. Whether respondent No. 1 has, after the solemnisation of the marriage, had voluntary sexual intercourse with respondents Nos. 2 and 3? OPR
2. Whether the petition has been presented in collusion with respondent No. 2 as pleaded in para 2 of the preliminary objection ? OPR
(8) Issues 1 and 2 were decided by the learned trial court against the husband and wife respectively.
(9) It was under issue No. 3 which pertained to relief, that the learned trial court gave the finding that the child born to the wife on the night of 13/14th August 1977 at Hindu Rao Hospital after about 6 months of the marriage was an illegitimate one as she was carrying the pregnancy since long before the date of marriage, but the learned trial court found that this child birth did not cause any mental shock or tension to the husband and further that even if it be assumed that such shock had been caused to him, the same could not be deemed to have resulted in any cruel treatment to him. The learned trial court further held that even if it be assumed for a moment that this child birth had led to cruel treatment to him, the husband would be deemed to have condoned the said conduct of the wife. The learned trial court was also of the view that the petition was even otherwise liable to fail on a number of technical grounds because it was not in accordance with Rule 5 of the Hindu Marriage (Punjab) Rules as applicable to Delhi, as the husband had filed no affidavit along with the petition thereby deposing that the petition had not been filed in connivance or collusion with the wife, which was a. mandatory requirement.
(10) The learned counsel for the husband has assailed the judgment of the learned trial court regarding the findings of cruelty and condensation as also regarding non-maintainability of the petition for the husband not filing an affidavit along with the petition deposing thereby that the petition had not been filed in connivance or collusion with the wife. He did not challenge the finding of the learned trial court in regard to issue No. 1.
(11) On the other hand, the learned counsel for the wife assailed the finding of the learned trial court regarding the illegitimacy of the child. He, however, did not challenge the finding on issue No. 2.
(12) The question of legitimacy of the child born to the wife on the night of 13/!4th August 1977 is the basic question on which the question of cruelty would depend and so the matter pertaining to the legitimacy of the child shall be dealt with first. Admittedly, the marriage between the parties had taken place on 10-2-1977 and the child was born to respondent No. 1 on the night intervening 13/14th August 1977 at 12.35 A.M. and thus the birth of the child had taken place after 6 months and 4 days of the marriage of the oarties. The husband examined in the witness-box Dr. B. Manchanda (Public Witness 2) of Hindu Rao Hospital, Delhi. The relevant portion of her testimony is reproduced below:- “…….SMT. Sudesh got admitted in our hospital on 12-8-77 at 9-10 P.M. She delivered a male child at 12.35 A.M. on 13-8-77. it was a male alive child. The weight of the child was 51 pounds. As per my record it was a normal child/delivery. As per my record the patient gave history of 7 months pregnancy with labour pain. ……The discharge slip issued to Smt. Sudesh Kumari is Ext. Public Witness 2/1. As per discharge slip the child was born on 13-7-77 whereas it ought to have been 13-8-77. As per weight baby appears to be more than 7 months. It was not premature child.”
In her cross-examination this doctor stated as follows :- “………I being the head of the department only finally signed this case sheet……..1 have made my statement on the basis of the record brought by me. There is no possibility of a mother having a child of 5 pounds when she delivers the child in 7th month. And when she is clinically normal. It is not written in my record that the child is premature It is correct that a premature delivery can. take place earlier than 210 days. As per my record Sudesh Kumari was discharged from my hospital on 14-8-77 and not on 19-8-77. There is no discharge slip No. 14837 in my record brought by me today …..This is the final hospital record. This is the record in which we mention about the fact whether the child was born premature or not. We also make an entry of the same in the register but we do not bring the said register outside the court (should be hospital)-”
(13) Section 112 of the Indian Evidence Act, 1872 deals with conclusive proof of legitimacy and it reads as under :- “THE fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”
(14) When a child is born during lawful wed-lock, there is an initial presumption of legitimacy; in other words, that the husband had intercourse with the wile at the time when the child must have been conceived- Tin’s rule of law is., however, a rebuttable one and may be rebutted by showing non-access between the parents at the time when the child could have been conceived, but once access of intercourse by the husband is proved, no evidence can be allowed to show that the child is not the child of the husband and it is immaterial how soon after marriage the child is born. Thus, though the ordinary period of gestation is 280 days, a child born within less than 280 days of the marriage will, in the absence of evidence of non-access of the parents, be presumed under this Section to be legitimate and this presumption applies irrespective of the fact whether the mother was married or not at the time of conception. This provision of law is based on the maxim pater esquire nuptial demonstrate (father is he whom the nuptials indicate). So, in the case in hand the initial presumption is in favor of the legitimacy of the child that he is the son of the husband but this presumption can be rebutted if the husband succeeds in showing that the parties to the marriage had no access to each other at any time when the child could have been conceived. The learned counsel for the husband pointed out from the cross-examination of the wife as Rw I that she conceded that she had no physical relation of husband and wife with the husband before her marriage and these lines from her cross-examination are reproduced below :- “I have no physical relation of husband and wife with the petitioner before my marriage.”
(15) So, in view of this admission on the part of the wife the husband has been able to show that there was no access between -him and the wife prior to their marriage and, thus, has been able to rebut the presumption of legitimacy contemplated by Section 112 of the Indian Evidence Act, 1872. Thus, the legal presumption regarding legitimacy of the child having been rebutted, the birth of the child having taken place only 6 months and 4 days after the marriage of the parties and the categorical statement of Dr. B. Manchanda (Public Witness 2) of Hindu Rao Hospital regarding the weight, of the child 5″ pounds and the delivery being a normal child delivery and the child, as per the weight, appearing to be more than 7 months and the child being not a premature child and there being no possibility of a mother having a child of being 5″ pounds when she delivers a child in 7th month and when the child is clinically normal, there is left no manner of doubt that the child born to the wife was not of the husband and that the wife was carrying pregnancy by some person other than the husband at the time of her marriage, and this inference appears to be inescapable.
(16) The learned counsel for the wife contended that the word ‘begotten’ used in Section 112 of the Evidence Act did not mean ‘conceived’ but meant ‘born’, and that as the parents of the child had been living as husband and wife and had been cohabiting wish each other as such after the marriage, the presumption of the child being legitimate was conclusive a.nd further that it was immaterial that they did not have any access to each other prior to their marriage when the child could be conceived. This contention is obviously erroneous and cannot be accepted. He has relied upon an authority of the Himachal Pradesh High Court reported as Smt. Samila Devi v. Shankar Dass, 1978 Hlr 719 atp. 721. The perusal of para Ii of that authority shows that after staling the contents of Section 112 of the Evidence Act it was observed as follows :- “THIS conclusive proof which is contemplated by Section 112 of the Evidence Act has not been displaced because it is an admitted fact that after the marriage both the parties had access to each other for a number of days. Under these circumstances, the surmises and inferences which the learned Magistrate has drawn about the legitimacy of the child which was born to the petitioner about six months after the marriage were totally unwarranted. In fact, it was a case in which presumption about the legitimacy of the child should have been drawn by the learned Magistrate.”
(17) The learned counsel for the wife asserted that in this authority what had been considered relevant for displacing the presumption of legitimacy under Section 112 of the Evidence Act is that there should be access between the husband and the wife after the marriage. With respect this authority docs not lay down the law on this point correctly. If the child is born to the parents, even though within a few days of the marriage the child shall be presumed to be legitimate and this presumption can be displaced only if no access between the parents at the time when the child could be conceived, is proved.
(18) The learned counsel for the wife also placed reliance upon an authority of Punjab High Court reported as Umar and others v. Muhammad Hayat and others, 1908 (Punjab Record 400 (DB) at p. 402). In that case the child was born about 71 months after the marriage. This authority quoted observations appearing in Amir Ali’s Law of Evidence at page 671, under Section 112 of the Evidence Act which are reproduced below :- “…So far as concerns descent from particular parents, a child born during wedlock is presumed according to English Law to be the legitimate issue of such parents, no matter how soon the birth be after marriage. When a man marries a woman whom he knows to be with child, he may be considered as acknowledging by a most solemn act that the child is his. The present section following English Law adopts the period of birth as distinguished from conception as the turning point of legitimacy. It is a peculiarity of that law that it does not concern itself with the conception, but considers a child legitimate who is born of parents married before the time of his birth, though they were unmarried when he was begotten.”
(19) The perusal of these observations simply goes to show that Section 112 of the Evidence Act has followed the English Law the peculiarity of which was that it did not concern itself with the conception, but considered a child legitimate who was born of parents married before the time of his birth though they were unmarried when he was begotten. These observations bring out the meaning of the word “begotten” as “conceived” when it uses the word ‘begotten’ at a point of time before the marriage, and the actual birth of the child after the marriage. Moreover, what these observations and the English Law go to convey is that emphasis for legitimacy is on birth rather that on conception which may take place before the marriage but the birth takes place after the marriage. These observations do not and cannot be taken to nullify the circumstance of non-access of the spouses before the marriage when the child was conceived which circumstance has the effect of rebutting the presumption of legitimacy contemplated under Section 112 of the Evidence Act, 1872.
(20) Palani alias Thirumeni thevan v. Sethu and Others, Air 1924 Mad. 677, is instructive on this point and it lays down as follows : “SECTION 112 refers to the point of time of the birth of the child as the deciding factor and not to the time of the conception of that child. The point of time of the conception of the child has to be considered only to see whether the husband had not access to the mother. If he had access then the child that is born must be treated as the child of the father. The child born in wedlock . should be treated as the child of the father, who was then the husband of the mother unless it is shown that he bad no access to the mother, at the time of conception, quite irrespective of whether the mother was married woman or not.”
From this authority also it would be clear that the word ‘begotten’ used in Section 112 of the Evidence Act means ‘conceived’ and not ‘born’. The emphasis on birth during wedlock as against conception is there in Section 112 for the reason that as a general rule it is the birth after marriage which confers legitimacy on a child as against ‘conception’ which is only exceptional circumstance when at that point of time there had been no access between the two spouses and it is on account of the generality of the provision that birth of the child has been made the deciding factor for the question of legitimacy of a child.
(21) Now the question arises whether the birth of the illegitimate child to the wife caused or not cruelty to the husband. It need hardly be pointed out that birth of an illegitimate child would certainly cause great annoyance to the husband who would in turn start hating the wife and all this is the reaction of the severe mental torture he receives at the birth of such child and which becomes intolerable to him, and in the resultant the wife does receive a harsh treatment at the hands of the husband. This is what has happened to the parties in this case. Although the husband did not take very harsh view of the incident at Hardwar already referred to above, he on learning of the birth of the child started hating the wife and he told her that he would not keep her. This finds mention in the testimony-in-chief of the husband as Public Witness 1. Then the testimony of the wife as Rw 1 shows that after coming from the hospital she stayed with the husband for three months and the husband used to beat her and after giving beating he would ask her whose child was this whom she had delivered. As already observed above this behavior of hatred and beatings on the part of the husband on the question of illegitimacy of the child towards the wife was the direct outcome of the frustration which was the direct result of the aforesaid act of the wife of giving birth to the illegitimate child and thereby it becomes obvious that the wife had treated the husband with cruelty. The learned trial court got oblivious of this and, thus, went wrong in holding that there was no cruelty on the part of the wife towards the husband.
(22) The learned trial court has referred to a letter Ext. Rw 2/1 dated 15-8-1977 after two days of the birth of the child, written by the father of the husband to the father of the wile. The perusal of this letter shows that it simply conveys the information of the birth of the child after 7 months (of the marriage) and further conveys congratulations to him. This letter further requests for the sending of the wife’s mother immediately and definitely. It further conveys the pensive mood of the wife. The learned trial court looked upon this letter as conveying no shock or sorrow by the petitioner and his family members on the birth of the child but rather as showing their happiness and conveying congratulations to the father of the wife and came to the view that the said act and conduct of the husband showed that in fact no mental shock or tension was caused to him on account of the birth of this child to the wife. The learned trial court veered round further to the view that even if it be assumed that such shock had been caused to the husband, the same could not be deemed to have resulted in any cruel treatment to him. This inference cannot be accepted as correct, because the contents of this letter do not anywhere express any happiness on the birth of the child, It simply conveys the information of the child birth and congratulations to the father of the wife and not congratulations to themselves. It further shows the pensive mood of the wife and request is also made for sending the mother of the wife immediately and definitely. Moreover, this letter cannot bind the husband as it is written not by him but by his father who may not be aware of the no access of the husband and wife at the time when the conception of the child could take place before the marriage. However, the specific reference of the birth of the child after 7 months of the marriage in this letter would not be altogether meaningless. However, one thing is clear that no expressions of happiness find place in this letter. Furthermore, flagrant expression of discontent and unhappiness over the child’s birth in this letter appears to have been avoided as this letter happened to be written almost immediately after the child birth. For the reasons aforesaid, the view of the learned trial court referred to above cannot be accepted as correct but would appear to be erroneous.
(23) The husband could have availed of the remedy of a decree of nullity annulling the marriage under Section 12(1)(d) of the Hindu Marriage Act, 1955 by bringing a petition for that relief within one year from the date of the marriage as postulated by Sub-section 2(b)(ii) of Section 12 but he did not avail of that remedy, and chose instead the remedy of divorce on the ground of cruelty emanating from the same facts on which he could have sought the decree of nullity, under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (as amended up todate), and this option on the part of the husband could in no way deprive him of the remedy of divorce which he has now actually chosen, as the two remedies are distinct and separate from each other, and in this view of the matter the waiver on his part of one remedy cannot be said to be tantamount to his condoning cruelty on the part of the wife towards him.
(24) On the question of condensation of cruelty the learned trial court was of the view that cruelty had been condoned by the husband and for this conclusion it relied upon the facts that the parties resided together in the matrimonial home uptil 19-9-1977, i.e. for a period of about 1″ months of the delivery of the child and the husband maintained contacts with the wife even uptil early 1978 because he could not deny that he visited respondent No. 1 at her parents’ house at Sona (Distt. Gurgaon) and his father had also written the aforesaid letter Ext.RW 2/1 dated 15-8-1977 to the wife’s father which letter showed that the petitioner and his family members were glad and had congratulated the father of the wife. Again this inference cannot be upheld. The husband in his statement as Public Witness 1 categorically stated that he turned her out on 14th or 15th September 1977 and that she went to her parents at Sona all by herself and he denied that he had gone there to leave her with her parents. Under the circumstances already referred to above this would be the normal conduct on the part of the husband against his wife and so this part of the statement of the husband should be taken as correct. She was not turned out earlier immediately after the delivery of the child probably for the reason that after delivery the lady needs rest for about 40 days and that is why she was allowed to remain in the matrimonial home for a month after the delivery. Much adverse to the husband cannot be inferred for his not remembering if he visited the house of his in-laws at Sona on 3-12-1977. It could be for settling the problem that had arisen on account of the child birth. The earliest divorce petition filed on 17-4-1978 by the husband, which was amended twice later on, sets out the facts about the birth of the child and his shame and shock to see the delivery of the child after 6 months of his marriage with the wife. The admitted beatings to the wife at his hands on his persistent questioning the wife whose child it was would go to induce the Court regarding the aforesaid inferences refuting the allegation of condensation of cruelty and falsifying the averments made by the wife in her testimony that the husband had been having sexual intercourse with her even after the child birth and left. her at Sona at her parents’ house after keeping her in the matrimonial home uptil 19-11-1977 and that he demanded a sum of Rs. 10,000.00 for a scooter from her father which her father could not afford whereupon the husband. threatened not to allow her to joint him. The conceding by the wife in her own testimony-in-chief as Rw 1 that the husband used to beat her and after giving beating be would ask her whose child was this whom she had delivered, would go to belie the assertion of condensation of cruelty.
(25) The fact that no specific issue regarding cruelty was framed by the learned trial court which discussed this matter as also the question of condensation of cruelly only under issue No. 3 pertaining to relief does. not appear to help the wife appreciably for the reason that both the parties were aware of the allegations of each other in the pleadings and they also led evidence on those matters with full knowledge of the implications of the. same.
(26) Towards the end of its judgment the learned trial court observed that the petition was even otherwise liable to fail on a number of technical grounds because it was not in accordance with Rule 5 of the Hindu Marriage (Punjab) Rules as applicable to Delhi as the petitioner bad filed no affidavit along with the petition thereby deposing that the petition had not been filed in connivance or collusion with the wife which was the mandatory requirement. The learned counsel for the parties addressed arguments on this finding as well. There was no issue framed by the learned trial court even in respect of this matter. Even though such a rule is there, but the same cannot be held to be fatal in this case because the filing of an affidavit is only a matter of procedure and it loses its rigour when the petition itself has made a specific averment that the petition had not been presented in collusion with the wife and verification is appended to the petition. Rules of procedure are meant only as a hand-maid of justice and not to inflict casualty thereto. So, the finding of the learned trial court even on this point is erroneous.
(27) In view of the discussion aforesaid the appeal of the husband succeeds and setting aside the judgment and decree of the learned trial court, a decree of divorce on the ground of cruelty is passed in favor of appellant- husband Madan Lal against the wife-respondent No. 1 Smt. Sudesh Kumari under Section 13(1)(ia) and their marriage is dissolved thereby. The costs in the appeal as also in the trial court shall be borne by the wife-respondent No. 1.