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JHARKHAND HIGH COURT
R. Banumathi, C.J. and
ShreeChandrashekhar, J.
Rabindra Kumar —Appellant
versus
Usha Devi —Respondent
F.A. No. 32 of 2004
Decided on 5.3.2014
(B) Evidence Act, 1872—Section 112—Presumption as to legitimacy of child—Once valid marriage is proved, Section 112 of Evidence Act raises conclusive presumption about paternity of child born during subsistence of valid marriage—Evidence adduced by appellant-husband is not sufficient to establish non-access—In view of statutory presumption raised under Section 112 of Evidence Act, plea denying paternity of female child rejected. (Para 23)
(C) Hindu Marriage Act, 1955—Section 24—Permanent alimony and maintenance—It was only after Trial Court passed order in an application filed under Section 24 of Hindu Marriage Act, appellant-husband started paying maintenance amount to his wife only by order of Court—Conduct of appellant over the years indicates that he has completely abandoned his pious obligation of maintaining his wife and his own son whose paternity he has not disputed—Appellant has caused immense mental agony and harassment to her—Respondent-wife is entitled for maintenance and cost. (Paras 40 and 42)
(D) Civil Procedure Code, 1908—Order 41 Rule 33—Powers of Appellate Court—Under Order 41, Rule 33 CPC, appellate Court has wide power to render justice between parties—Power under Order 41, Rule 33 CPC can be exercised by Appellate Court even though party in whose favour power under Order 41, Rule 33 CPC is sought to be exercised has not filed any appeal or cross-objection—Even though respondent-wife has not filed any cross-appeal, having regard to conduct of the appellant, exercising power under Order 41, Rule 33 CPC, maintenance amount awarded to respondent-wife for her own maintenance and maintenance of son is to be enhanced. (Para 43)
Result: Appeal dismissed with cost.
R.Banumathi, C.J. & Shree Chandrashekhar, J.—This First Appeal is directed against the judgment dated 28.07.2004 and the decree signed on 06.08.2004 passed in T.M.S. Case No.181 of 2001 by which the Principal Judge, Family Court, Dhanbad, dismissing the suit filed by the appellant-husband for a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and a further direction was given by the court-below to the appellant-husband to pay a sum of Rs.7000/- per month to the respondent-wife from the month of July, 2004 which included Rs.4000/-per month for the wife and Rs.3000/- per month for the minor son, Lalan Kumar upto attaining age of majority.
2. The case of the appellant-husband, in brief, is as under:
(i) That the plaintiff/appellant-husband got married with the defendant/respondent-wife on 20.05.1985 according to Hindu rites and customs. It was alleged by the appellant-husband that after marriage the respondent-wife came to his house however, seldom lived with him because she was not adjusting with him and used to insult him in various ways from time to time in presence of his family members, friends and neighbours. The appellant-husband disclosed that out of the said wed-lock a son named Lalan Kumar was born on 25.10.1988. The allegation put forward by the appellant-husband was that he had no relationship with the respondent-wife either physical, mental or social, though she was living in his house since last 13 years. The appellant-husband said that he was bearing the entire cost of maintenance of his wife and son. He was Probationary Officer in a bank and always resided out of his house to maintainpeace in the family.
(ii) It has been further alleged in the plaint by the appellant-husband that in his absence, the respondent-wife developed physical relationship with many persons. When she was in her advanced stage of pregnancy of about seven months, he came to know about the same on 19.08.2001. He was shocked and surprised to see his wife pregnant because there had been no physical relationship between them. It has further been stated by the appellant-husband that he raised objection and pressurized the respondent-wife for D.N.A. test to show and prove that she was not conceived from him, but she became adamant and flatly refused to do so and threatened him to implicate in false case with the support of her family members and see him behind bars. It was stated that it was impossible for him to continue the marital relationship with her because of her cruel behaviour and adultery. The appellant-husband filed suit on 20.08.2001 seeking for a decree of divorce against respondent-wife on the ground of cruelty and adultery of the respondent-wife.
(iii) Later on, after instituting the plaint, the appellant-husband on 20.10.2001, filed a specific application before the Court below disclosing the name of his father, namely, Raj Nandan Sharma S/o Sakaldeep Singh as the adulterer stating that his wife was very soon going to deliver a child out of the alleged adultery.
3. On the other hand, the respondent-wife appeared and filed her written statement before the Court below. It was stated by her that the female child (alleged to be illegitimate by the appellant-husband) was delivered by her on 19.11.2001 out of the matrimonial relationship with the appellant-husband but the said female child died on 07.12.2001. She specifically pleaded the paternity of the appellant-husband with respect to the said child. She explicitly said that she was willing for the D.N.A. test as proposed by the appellant-husband and inflicted counter allegations of torture, cruelty and adulterous relationship on the part of the appellant-husband. She further stated that the appellant-husband had neglected her and their son and therefore, she asked for alimony pendente-lite under Section 24 of the Hindu Marriage Act, 1955. The respondent-wife has alleged that the appellant-husband left the house to live with some other lady to whom he
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