Himachal Pradesh High Court
Shri Narotam Ram vs Smt. Parwati Devi & Another on 25 May, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
RSA No. 120 of 2006
Reserved on : 16.5.2015
Decided on : 25.5.2015
Shri Narotam Ram .....Appellant.
Versus
Smt. Parwati Devi & another ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting?1 For the Appellant: Mr. N.K Thakur, Sr. Advocate with Mr. Rohit Kumar, Advocate.
For the Respondents: Mr. Atul Jhingan, Advocate for respondent No.1.
Sureshwar Thakur, Judge The instant appeal is directed against the impugned judgment and decree rendered by the learned District Judge, Mandi, in Civil Appeal No. 40 of 2005 of 14.12.2005, whereby the 1 Whether reporters of the local papers may be allowed to see the judgment?
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judgment and decree rendered by the learned Civil Judge (Senior .
Division), Mandi of 1.3.2005 has been affirmed.
2. Brief facts of the case are that the marriage inter-se the plaintiff and defendant No.1 was solemnized in the year 1970- 1971. At the time of their marriage, both were minors. Both lived together for about 10-15 days. Thereafter, defendant No.1 had left for her parental home and stayed there up till 1980. During this period, neither the plaintiff visited the defendant No.1 nor the defendant No.1 joined the company of plaintiff. However, prior to 1981 the defendant No.1 came to the house of the plaintiff and stayed there for 10-15 days and again left for her parental house and never came back. The defendant No. 1 never joined the company of the plaintiff nor the plaintiff had any access to the defendant No.1 during the period of 10-15 days. The defendant No.1 while staying at her parental house developed illicit relations with Bhagat Ram S/o Guju and out of such relations, two sons namely Yog Raj and Som Dutt were born from the womb of the defendant No.1. With the connivance of the President Gram Panchayat, Sidhyani, both Yog Raj and Som Dutt were recorded in ::: Downloaded on - 15/04/2017 18:14:46 :::HCHP ...3...
the Panchayat Record to be sons of the plaintiff. The entry made in .
the birth register is illegal and wrong. Hence, the suit for declaration has been filed by the appellant/plaintiff.
3. The defendant No.1 contested the suit and filed written-
statement. Defendant No.1 in her written-statement has taken preliminary objections inter alia maintainability, cause of action and non-joinder of parties etc. On merits, the defendant No.1 admitted the marriage of the parties having taken place in the year 1970-71. It has also been denied that prior to 1981 she came to the house of the plaintiff and stayed there for 10-15 days and left for her parental home. It has also been denied by the defendant No.1 that she never joined the society of the plaintiff nor had any sexual intercourse with the plaintiff. The defendant avers that under the influence of liquor the plaintiff used to maltreat her. The replying defendant was asked by the plaintiff to give divorce but she did not agree. On this she was kicked out of the matrimonial home and thereafter she left for her parental home. The appellant/plaintiff filed a divorce petition, which was dismissed on 17.6.1980. The appellant and defendant No.1 thereafter ::: Downloaded on - 15/04/2017 18:14:46 :::HCHP ...4...
entered into a compromise and defendant No.1 visited the house .
of the plaintiff and stayed there up till June, 1984. Thereafter, she was again ousted by the plaintiff after giving her beatings. Then defendant No.1 again left for her parental home. The defendant No.1 was again taken by the plaintiff to his house in the year 1985 but she was again ousted by him. The defendant No.1 denied the other averments made in the plaint.
4. The plaintiff/appellant filed replication to the written-
statement filed by the defendant No.1 and reasserted the stand taken in the plaint.
5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties at contest:-
1. Whether Yog Raj and Som Dutt are illegitimate sons of the defendant No.1 as alleged? OPP.
2. Whether entry in the Panchyat record showing Yog Raj and Som Dutt sons of the plaintiff are wrong, illegal and not binding upon the plaintiff.
3. Whether the suit is within limitation? OPP.
4. Whether the suit is within limitation? OPP 4-A Whether the suit is bad for non-joinder of the necessary parties? OPD
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6. On an appraisal of the evidence, adduced before the .
learned trial Court, the learned trial Court dismissed the suit filed by the plaintiff/appellant. In appeal, preferred by the appellant/plaintiff against the judgment and decree of the learned trial Court, before the learned first Appellate Court, the learned first Appellate Court dismissed the appeal and affirmed the findings recorded by the learned trial Court.
7. Now, the plaintiff/appellant has instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned courts below in their impugned judgments and decrees. When the appeal came up for admission on 22.3.2006, this court admitted the appeal instituted by the plaintiff/appellant on the hereinafter extracted substantial question of law:-
" (1) Whether the findings of the trial court as affirmed by the first appellate Court that Yog Raj and Som Dutt were borne out of the loins of the plaintiff/appellant are dehors the evidence on record."
Substantial question of Law No. (1):-
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8. The plaintiff/appellant solemnized marriage with .
respondent No.1 in the year 1970 -71 and at that stage both were minors. The plaintiff/appellant sought a declaratory decree to the effect that Yog Raj and Som Dutt are not begotten from his loins. Rather he averred that both the aforesaid are offspring of Bhagat Ram S/o Guju @ Shankar, who had an adulterous relation with defendant No.1. Consequently, he prayed that the portrayal in the Pariwar Register of his being the father of both Som Dutt and Yog Raj is void and sequelled by the collusion inter-se the defendants No.1 and 2/respondents.
9. The factum of a marriage having been solemnized inter-
se the plaintiff/appellant and the defendant No.1/respondent No.1 has remained un-controverted. The marriage inter-se them was solemnized in the year 1970-1971. Both lived together for about 10-15 days. Thereafter, defendant No.1/respondent Parvati Devi left for her parental home and stayed there up till 1980.
There is no evidence on record to show that the marital relationship inter-se the appellant and respondent No.1 stood severed by a decree of Civil Court. Consequently, an apt inference ::: Downloaded on - 15/04/2017 18:14:47 :::HCHP ...7...
is that the marriage inter-se the appellant and respondent No.1 .
remained intact or in subsistence. In sequel when Section 112 of the Evidence Act mandates a presumption that if a child is born during the subsistence of a valid marriage, it shall be conclusive proof that the child is the legitimate child of the man, unless it is shown that the parties to the marriage had no access to each other at any time, when the child could have been begotten. Given the subsistence of a valid marriage inter-se the appellant and respondent No.1, the presumption as enshrined in Section 112 of the Evidence Act renders open an inference that both Yog Raj and Som Dutt born from the womb of the defendant No.1 are the sons of the appellant with whom the respondent No.1 had a subsisting/valid marriage. The presumption was rebuttable only in the event of potent proof of absence of access inter-se the marital partners having emanated. However, on a perusal of the evidence on record comprised in the testimony of the plaintiff/ appellant as well as other witnesses, is nebulous, infirm and shaky, to connote the factum of the plaintiff/appellant having no access to the defendant No.1 during the subsistence of the ::: Downloaded on - 15/04/2017 18:14:47 :::HCHP ...8...
marriage. The infirm and shaky proof qua the plaintiff/appellant .
not accessing the defendant No.1/respondent No.1 renders it disabled to erode or dislodge the presumption mandated in Section 112 of the Evidence Act qua a birth of a child during the subsistence of a marriage inter-se the marital partners comprising conclusive proof of his being the legitimate child of the man.
Consequently, the inference drawn, on an appraisal of evidence on record, by both the courts below that hence, both Som Dutt and Yog Raj are begotten from the lions of plaintiff/appellant, is neither infirm nor merits any interference. The substantial question of law is answered accordingly. The appreciation of the evidence as done by the learned courts below does not suffer from any infirmity as well as perversity. Consequently, I find no merit in this appeal, which is accordingly dismissed, and, the judgment and decree of the learned trial Court as affirmed by the appellate Court is maintained and affirmed. Records be sent back forthwith.
25th May,2015 ( Sureshwar Thakur ),
(priti) Judge.
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