The presumption of legitimacy under Section 112 of the Evidence Act is not easily rebutted and can only be dislodged by establishing a strong prima facie case. Refusal to undergo a D.N.A. test for the child, in the best interests of the child, does not warrant an adverse inference of adultery.

JUDGMENT :

HARISH KUMAR, J.

Heard Mr. Uday Prakash Shrarma, learned advocate for the appellant and Mr. Jitendra Singh, learned senior advocate assisted by Mr. Harsh Singh, learned advocate for the respondent.

2. The present Miscellaneous Appeal is directed against the judgment and decree dated 01.06.2019 and 14.06.2019, respectively, passed by the learned Principal Judge, Family Court, Muzaffarpur, in Matrimonial Case No. 55 of 2014, whereby the marriage between the appellant/wife and respondent/husband has been dissolved and decree of divorce has been passed on the ground of adultery.

3. The factual matrix of the case as is culled out from the records is that the marriage of the appellant/wife and the respondent/husband was solemnized on 19.02.2012. After performance of the rituals of marriage, the appellant/wife had gone to her matrimonial home and lived in Muzaffarpur along with her husband till 03.03.2012. The husband, after having stayed with the wife for about 14 days in Muzaffarpur, returned to his service on 03.03.2012.

4. It is the case of the respondent/husband that after leaving Muzaffarpur, there had never been any physical relationship with his wife for about five and a half months. The appellant/wife, thereafter, went to Chandigarh with her father for the first time after her marriage on 14.08.2012 and she stayed there for two months. Later on, the mother of the appellant/wife visited Chandigarh to see her daughter and after having stayed for a couple of days, she returned to Muzaffarpur on 14.10.2012 with her daughter. On 17.01.2013, the appellant/wife gave birth to a male child at Muzaffarpur.

5. However, it is submitted that as there had never been any physical relationship of the respondent/husband after he left Muzaffarpur on 03.03.2012 for about five and a half months, so it was surprising for the respondent/husband as to how the appellant/wife gave birth to a child on 17.01.2013. It is further submitted that it is medically proven that the baby rests in the womb of the mother for about nine months after conception. Though there have been instances of premature delivery in 7-9 months, but there has been no instance of baby resting in womb of the mother for about ten and half months.

6. The aforenoted facts gave rise to serious doubt about the unchaste conduct of the appellant/wife of her adultery outside the wedlock.

7. In order to dispel all the doubts, the father of the respondent/husband made a proposal for the D.N.A. test, which was accepted by the appellant’s family but later on, the appellant/wife declined for D.N.A. test of paternity for her baby.

8. Thus, the abovementioned conduct confirmed the appellant/wife involvement in adultery.

9. It is also submitted that adultery is an offence against marriage under both the criminal and matrimonial laws and even one single act of adultery is enough for divorce and there is no question of living together of husband and wife. The husband had no option but to file an application for divorce under Section 13(1)(ia) of Hindu Marriage Act for dissolution of Marriage on the grounds of adultery.

10. The wife having come to know about this case from the publication of notice in news papers, entered her appearance and filed a detailed reply, admitting that her marriage was solemnized with the respondent/husband on 19.02.2012 and that she remained in her sasural with the respondent/husband for 14 days. Thereafter, her husband went to Chandigarh. It is further stated that her father had spent more than 25 lacs in the marriage. Nonetheless, the family members of husband tormented her for dowry. Whenever she expressed her desire to visit Chandigarh, the parents-in-law told her to stay in flat at Muzaffarpur. She has also stated that her father-in-law used to drink and had evil eyes on her who even went to the extent of administering sleeping pills in her food. Whenever she woke up, she had a feeling that something had happened with her. She has further submitted that having lost f