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Pardip Kumar v. Renu Bala - FAO-M-196-M-2002 [2006] RD-P&H 11073 (22 November 2006)

F.A.O.No.196-M of 2002 {1}


Date of decision : 29.11.2006.

Pardip Kumar ........Appellant


Renu Bala ......Respondent

Present : Mr.Vijay Lath, Advocate for the appellant.

Mr.A.K.Jaiswal, Advocate for the respondent.

* * *



The husband in first appeal aggrieved against the judgment and decree dated 17.1.2002, passed by the learned trial Court, whereby his petition for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955, was dismissed.

It has been pleaded that the marriage between the parties was solemnized on 30.5.1997 and that the respondent is a lady of arrogant nature and often insulted the appellant in the family. It is also pleaded that the appellant is serving in the Indian Army since 22.10.1986. He came on leave on 4.7.1998 and remained in the village upto 10.9.1998.

During this period, father of the appellant died on 25.7.1998. The respondent lived with the appellant till 5.8.1998, but during this period the respondent picked up quarrel with the appellant. It is also pointed out that the respondent was dissatisfied with the appellant and also used to tell the appellant to perform second marriage after giving her divorce. On 5.8.1998, the respondent left the matrimonial house on the pretext to meet F.A.O.No.196-M of 2002 {2}

her parents, but she did not return since then. It has further been pointed out that the appellant joined his duty in the Army on 10.9.1998 and again came on leave for ten days from 15.11.1998 to 25.11.1998. During this period, respondent developed illicit relations with a person known to her and had voluntary sexual intercourse with the said person and conceived a child from the said person. The appellant did not have physical relations with the respondent during that period, but the respondent gave birth to a male child on 30.7.1999.

In reply, it is the stand of the respondent that the child Bhanu Partap was born from the loins of the appellant on 30.7.1999. She denied the allegations of misbehaviour and pleaded that in the month of March, 1998, the appellant and his family members taunted the respondent and forced her to bring Rs.1.00 lac from her parents. The brother and father of the respondent paid Rs.50,000/- in the month of March, 1998. The appellant cohabited with the respondent upto 25.11.1998 when the appellant was on leave from 4.7.1998 to 25.11.1998. She was turned out of the matrimonial house on 25.11.1998 when she was pregnant.

The learned trial Court found that the appellant came on leave from 15.11.1998 to 25.11.1998 and in terms of Section 112 of the Evidence Act, 1872 the birth of the Child on 30.7.1999 is a conclusive proof of legitimacy unless it is shown that parties to the marriage have no access to each other at the time when the child could have been begotten.

Still further, it was found that though the appellant agreed for DNA test before the Lok Adalat on 4.12.1998, but he did not appear before the Court on the next date. On 11.5.2000, the parties were directed to appear before the authorities of All India Institute of Medical Sciences (AIIMS), F.A.O.No.196-M of 2002 {3}

New Delhi for DNA test and the amount was directed to be deposited there. However, it was informed that DNA test is available only at Hyderabad and Calcutta. It was also found that now the DNA test is available at Bureau of Police Research and Development, Ministry of Home Affairs, (Union of India), Sector 36, Chandigarh and the parties can go there, but no positive response was received from the side of the appellant. The Court also recorded a fact that during the course of the arguments, the counsel for the appellant did not seriously press the ground of cruelty.

Since the appellant has not pressed the ground of adultery before the learned trial Court, it was not open to the appellant to re-agitate such ground before this Court in appeal. Once the concession is recorded in the judgment, the only remedy available with the appellant is to move an appropriate application before the said Court to allege that such concession was not rightly recorded. Since such course has not been adopted by the appellant, therefore, I do not find any reason to permit the appellant to press the ground of adultery in the present appeal. Even on merits, the ground of adultery is not made out. It is the case of the appellant that he availed leave till 25.11.1998, therefore, the birth of the child on 30.7.1999 is the presumption of legitimacy under Section 112 of the Evidence Act, 1872. It was open to the appellant to lead evidence to show that the parties have not cohabited. In the absence of any cogent evidence to that effect, I do not find that any case is made out in favour of the appellant to seek dissolution of marriage on the ground of adultery.

The other ground of cruelty has been found to be fake. The allegations are not such which may amount to cruelty. In the absence of F.A.O.No.196-M of 2002 {4}

any specific allegation of cruelty, I do not find that the finding recorded by the learned trial Court returning the finding against the appellant on the question of cruelty, can be said to be suffering from any patent illegality or irregularity which may warrant interference by this Court in the appeal.


29.11.2006 (HEMANT GUPTA)

*mohinder JUDGE


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