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PATNA HIGH COURT
P.B. Bajanthri and Jitendra Kumar, JJ.
Sunny Devi – Appellant
versus
Ram Babu Kumar – Respondent
Miscellaneous Appeal No.287 of 2019
Decided on 15.9.2023
(A) Hindu Marriage Act, 1955 – Sections 12 and 23 – Indian Evidence Act, 1872 – Section 3 – Nullity of marriage – Matrimonial cases are civil in nature and preponderance of probabilities will be standard of proof in trial of Matrimonial cases under Hindu Marriage Act, and not proof beyond reasonable doubt which is applicable in criminal trials – Belief regarding existence of a fact may be founded on a balance of probabilities – Section 23 of Act does not alter the standard of proof in civil cases. (Paras 14 and 17)
(B) Hindu Marriage Act, 1955 – Section 12(1)(d) – Indian Evidence Act, 1872 – Section 112 – Nullity of marriage – Alleged pregnancy since prior to marriage with a person other than Plaintiff-Respondent-husband – Access does not necessarily mean actual cohabitation – It only amounts opportunity of cohabitation – Result of a genuine DNA test is said to be scientifically accurate – But even that is not enough to escape from conclusiveness of Section 112 of Evidence Act – Pregnancy test by ultrasound is not fully accurate – On the basis of such test one cannot claim on which date child was precisely conceived – There is always possibility of error of few days – If a husband and wife were living together during time of conception but DNA test revealed that child was not born to husband, conclusiveness in law would remain irrebuttable – Law leans in favour of innocent child from being bastardised if his mother and her spouse were living together during time of conception – Child born within 278 days when Appellant-wife joined Respondent-husband at his matrimonial home after marriage – It is conclusively proved that Respondent has fathered the child – Appellant was not carrying pregnancy since prior to marriage – Roving inquiry into paternity of a child is prohibited in view of Section 112 of Evidence Act – Respondent-husband is not entitled to get his marriage with Appellant-wife declared void by decree of nullity – Impugned Judgment set aside. (Paras 38, 44, 45, 47 to 54)
Result: Miscellaneous Appeal allowed.
JUDGMENT (CAV)
Jitendra Kumar, J.—The present appeal has been filed under Section 19 of the Family Courts Act, 1984 impugning the judgment dated 18.04.2019, passed by Ld. Principal Judge, Family Court, East Champaran, Motihari in Matrimonial (Divorce) Case No. 250 of 2012, whereby the petition, filed by the Plaintiff-Respondent under Section 12(d) of the Hindu Marriage Act, 1955 praying for decree of nullity for annulment of marriage between the parties, has been allowed on contest.
2. The case of the Plaintiff-Respondent, as per the petition filed before the Family Court, is that marriage between the parties was solemnized on 19.04.2012 at the Village Malahi Bazar situated in the District East Champaran as per Hindu rites and customs. The parties had last resided together at Sunarpur located in the local jurisdiction of the Family Court, East Champaran, Motihari. It is also averred that there is no petition filed by the Plaintiff-Respondent prior to the present petition and there was no collusion between the parties to present the matrimonial petition. It is further averred that following the marriage, the Defendant-Appellant joined his matrimonial house. It is further averred that soon the Defendant-Appellant began to misbehave with the Plaintiff- Respondent and disliked his company and also refused cohabitation with him. It is further averred that on 30.04.2012, the Plaintiff-Respondent had seen various symptoms of Defendant-Appellant being pregnant. The Defendant-Appellant tried to live lonely with an intent to suppress the sign of pregnancy. It is further averred that the Plaintiff- Respondent, having seen abnormality of physique and behaviour of the Defendant-Appellant, got pregnancy test of the Defendant-Appellant conducted, which was found positive. It is further averred that the Defendant-Appellant herself confessed her guilt and admitted illicit relationship with other person prior to the marriage. It is further averred that on complaint on 07.06.2012, the father and brother of the Defendant-Appellant came Singhiya Hiwan and asked the Plaintiff-Respondent that his suspicion is wrong and they advised him to get the ultrasound test of the Defendant- Appellant conducted. As per advice, ultrasound test of Defendant-Appellant was conducted on 08.06.2012 at HI Tec Scan Centre Janpul Chowk, Motihari and the report of the ultrasound revealed that the age of fetus is eight weeks, meaning thereby that the child was conceived prior to the date of marriage, in spite of the fact that the petitioner never met the respondent before the marriage. It is further averred that after ultrasound report, the brother and father of the Defendant-Appellant took her with them to their home and this time, the Defendant-Appellant took away all her ornaments and other belongings along with herself. Hence, he claims that marriage is voidable and fit to be annulled on the ground of pregnancy since prior to the marriage with a person other than the Plaintiff-Respondent-husband. Hence, the Plaintiff- Respondent prayed for decree of nullity for annulling the marriage between the parties.
3. On notice, the Defendant-Appellant appeared before the Family Court and filed her written statement wherein she has denied all the allegations made against her and she has claimed that just next day of the marriage there was physical relationship between the parties, leading to her pregnancy. She has further averred that marriage was solemnized on 19.04.2012 and a female child was born on 22.01.2013, which clearly shows that allegation against the Defendant-Appellant is false. She has further deposed that the child was born in Referal Hospital, Areraj. She has further averred that after ousting by Plaintiff-Respondent, she was living at her Mayake. She has further claimed that on account of his illicit relationship with Sunit Devi, who is the wife of his brother Sugrim Prasad, this baseless allegation has been levelled against her. She has also claimed that after th
(1) Nullity of marriage – Husband is strongly presumed to be father of child born to his wife. Presumption could be rebutted only when husband proves that husband and wife had no access to each other....
The legitimacy of a child born during a valid marriage is conclusive under Section 112, barring evidence of non-access, and courts cannot compel DNA testing.
The presumption of legitimacy under Section 112 of the Indian Evidence Act is conclusive and can only be rebutted by strong evidence of non-access; DNA tests should not be ordered without a prima fac....
Section 112 of Indian Evidence Act, which reads as birth during marriage, conclusive proof of legitimacy.
The presumption of legitimacy under Section 112 of the Evidence Act is conclusive and can only be rebutted by strong evidence of non-access; unilateral DNA tests conducted without consent are insuffi....
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 th....
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