ORDER :- The appellant/husband filed a petition under Section 12 read with Section 12 (2)(b)(i) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) seeking decree for annulment of marriage between him and the respondent/wife.

2. The main ground raised in the petition was that a female child was born to the respondent/wife within 6 months after the marriage after the normal period of pregnancy and therefore, according to the husband, it was apparent that the wife was pregnant at the time of marriage from some other person and this fact was not disclosed to him. The respondent/wife contested the case mainly on the ground that the child which was born was a premature child and according to her, the child was born from the loins of the husband. The learned District Judge rejected the petition filed by the husband mainly on the ground that in view of Section 112 of the Indian Evidence Act the paternity of the child could not be called in question.

3. The Court below came to the conclusion that the husband/petitioner has failed to prove that the wife/respondent was pregnant at the time of the marriage and was carrying some other person's child and also came to the conclusion that the husband had failed to prove that he had no access to the wife at the time when the child was begotten. Hence the present appeal.

4. The undisputed facts are that the marriage between the parties took place on 15-5-1997. According to the husband, the first coitus between him and his wife took place on 17-5-1997. According to the wife, the first coitus took place on 16-5-1997. A girl child was born to the wife on 14-11-1997. It is apparent that the child was born within 182 days of the husband and wife first having sexual intercourse. The plea of the husband is that the child is not his and the child was born after a normal period of pregnancy of 9-½ months and therefore, it is obvious that the wife was pregnant at the time of marriage by some other person and this fact had not been disclosed to him. The plea of the wife as noticed above is that the child which was born was a premature child born six months after conception.

5. To appreciate the rival contentions of the parties, it would be appropriate to refer to Section 112 of the Indian Evidence Act, which reads as follows :

"S. 112. Birth during marriage conclusive proof at legitimacy-

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 (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."

6. The law presumes strongly in favour of legitimacy of an off spring, as it is birth that determines the status of a person. The section recognizes and embodies the well settled principle of common law that a child born during the subsistence of the marriage or during 280 days after its delivery shall be conclusive proof that it is a legitimate child, unless it is proved by clear and strong evidence that the husband and wife did not or could not have any access at the time when the child could have been begotten. The word 'begotten' has been used synonymously with conception. The presumption of legitimacy arises from birth in wedlock and not from conception. A very strong protection is provided for the lawfully constituted family and to the progeny born out of such wedlock. The only exception to this is if the husband can show that he had no access to the wife at the time when the child could have been begotten. "Non-access" in this section not only means lack of physical access but also may include other factors and such physical disability rendering it impossible to procreate.

7. It is a well settled principle that the law leans in favour of validity of marriage and in favour of legitimacy and not i

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