- (1.) D. K. Seth, J. Mr. Diwakar Rai Sharma, learned counsel for the appellant in connection with the second appeal in sisted passing of an interim order staying the operation of the decree of dissolution of marriage dated 24-2-1999 passed in Marriage Petition No. 735 of 1986 by the learned Additional Civil Judge, Senior Division, Aligarh since been affirmed by judgment and decree dated 30-11-1999 passed by learned Additional District Judge, XIth Court, Aligarh in Appeal No. 26 of 1999. Shri Devendra Dahma, learned counsel appearing for the respondent op posed to grant interim order. In the cir cumstances, both the learned counsel were heard on the question as to whether any interim order should be granted in connec tion with the said appeal or not. It was also suggested by Mr. Devendra Dahma to hear the appeal here and now. According to him, it can be decided on the basis of the material placed before this Court. Whereas Mr. Sharma, on the other hand, contended that this cannot be decided without the records since it involves cer tain questions which requires reference to the record. However, both the learned counsel addressed the Court on the merit of the case on the basis of the judgment of both the Courts below.
(2.) MR. Sharma has assailed the judg ments on the ground that the proof with regard to pregnancy before marriage with some person other than husband should be beyond all reasonable doubt and that the plaintiff had failed to prove the same and that the evidence of Dr. Manju Gupta Medical Officer of the Government Maternity Home where the child was born though produced the register but yet two of the pages arc missing and as such the same could not be relied upon. He further contended that the plaintiff did not dis charge his onus with regard to the question as to whether the husband used to visit the wife before the marriage and he had as sailed the finding of the learned appellate Court that even if the husband visited the house of the wife before marriage the same would have been illegal and as such could not be recognised. Thus the appellate Court had proceeded virtually on a wrong presumption, which is an erroneous view, giving rise to substantial question of law. He also contends that the full born baby can take birth even after 7 months. Simply health of the baby cannot be a ground that he is supposed to be not pre-mature. He further contends that the learned Court below had not properly dealt with the in gredients under Section 12 (ii) (b) of the Hindu Marriage Act in order lo ascertain the situation. According to him the finding is perverse and as such it should be inter fered with. He further contended that hus band had condoned the act of the wife by a notice calling upon her to live with her husband. This notice was sought to be brought on record byway of amendment to the written statement at the appellate stage at the time of argument which was rejected on the same day and the judgment was delivered without any opportunity to the wife to challenge the said order and therefore, this order has also been chal lenged in this appeal. If the act was con doned in that event the appeal could not be maintained. Mr. Dahma, learned counsel for the respondent points out from the two judgments that it was purely a finding of fact and that there is no infirmity on those findings. According to him the date of birth having been found 30-8-1996 the question of giving birth of full born baby after 7 months cannot be of any relevance. The observation of the learned appellate Court with regard to the illegality or con nection before marriage between husband and wife is an obiter and had no relevance since it is not based on any finding to the extent that there was any relation between the parties before the marriage. Though he had contended that the observation made by the learned appellate Court cannot be sustained in law, but still then unless there is a finding that there was a relation before marriage, the said observation cannot af fect the merit of the decision. He further contends that this appeal does not involve any question of law since it is purely a finding of fact on the basis of belief and disbelief. Even on the basis of such materials this Court can come to a dif ferent finding still then this Court cannot interfere with the finding unless it is per verse on the basis of material which were relied upon by the learned Courts below. He further contends that the appellant sought the amendment after the argument was over, therefore, it was rightly dis missed. If it was a case of condonation in that event, it was open to the wife appel lant to incorporate the same in the written statement or even sometime before the arguments in the appeal had commenced. On these grounds he prays that the appeal should be dismissed. I have heard learned counsel for the parties at length.
(3.) I would record appreciation of the manner in which Mr. Divakar Rai Sharma had argued this case. He had raised such questions, which really raised substantial question of law. But unless those questions have relevance or nexus with the material placed before the Court, it cannot be said that those are involved in this case. In the present case, the trial Court had discussed the evidence of Dr. Manju Gupta as well as records of the Government Hospital. He had taken also note of missing of two pages of the register while noting that Serial Number of birth register are not missing and are consecutive. Both the Courts below had come to a finding that there was nothing on record to cast any doubt on the question of records maintained by the Government Hospital supported by the oral evidence of the Medical Officer who was examined and who had proved those documents, the Medical Officer has also supported the said documents in her oral evidence. At the same time, the trial Court had disbelieved the oral evidence on be half of the wife to the extent that all the witnesses were related to her except one neighbour who had also come without being called upon and alleged to have per formed the duty of mid- wife which she had left for last 4-5 years. Her evidence was discussed. It was observed that she could not remember any of the other persons in whose case she had attended delivery of child as mid- wife though she had attended 20 such deliveries in the neighbaurhood. On the said ground the learned trial Court has disbelieved her evidence. Thus the fact remains that it was a question ol belief and disbelief on the basis of certain materials. Even this Court is of a different view on the basis of such material still then this Court cannot interfere with the same unless the findings are perverse. On the basis of the material the Court could have come to one or other finding and had come to a par ticular finding. Unless perversity is shown, the said finding cannot be interfered with. In the present case the date of birth of the baby was found 30-8-1986 while the marriage had taken place on 13-3-1986. Thus the child had taken birth within 5 months and few days after the marriage. Since the Courts below have come to a conclusive finding that the child was horn on 30-8-1986, all other contentions looses its relevance of significance. If the finding of fact that the child was taken birth on 30- 8-1986 cannot be interfered with then other question need not be gone into.;