- (1.) Ram Singh appellant filed a petition under Section 13 of the Hindu Marriage Act, 1955 , for a divorce before the trial court on the allegations that Sat Pal Kaur respondent, who was married to him on 15th of March, 1972, had voluntary sexual intercourse with a period other than him; had deserted him in December, 1972, and had treated him with mental cruelty. He further alleged that he had no' access to his wife after June, 1972, and a daughter born to her on 6th of June, 1973, was not from his loins. The petition was resisted by the respondent-wife, who controverted all the grounds and pleaded that the appellant had been cohabiting with her regularly during the period he was posted at Ghaziabad near Delhi and before he left for training a' Madras in October, 1972, he had come to the village during the joining time towards the end of September, 1972, and the child was born from his loin, She also asserted that there was delay in the filing of the petition and as such it was not maintainable. The learned Additional District Judge, Ludhiana, before whom the case came up for trial, framed the following issues 1. Whether the respondent has after the solemnisation of the marriage voluntarily had sexual intercourse with any person other than the petitioner ? O. P. P. 2. Whether the respondent has treated the petitioner with cruelty after the solemnisation of the marriage ? O. P P. 3. Whether the respondent deserted the petitioner for a period not less than two years. Immediately preceding the presentation of the petition ? O. P. P. 4. Whether there was any delay in filing the application ? If so, to what effect ? O. P. R. 5. Relief. By judgment dated 11th of April, 1978. the learned Additional District Judge, Ludhiana, dismissed the petition for divorce on finding under issue No. 1 that the child was born to the respondent was from the loins of the petitioner-appellant and for some sinister plan he wanted to get rid of his wife by levelling false and mala fide allegations. On issues No. 2 and 3 no evidence as led and they were decided against the appellant. Under issue No. 4, it was held that there was delay of roughly four years after the birth of the child in filing the petition which was the principal ground for dissolution of marriage and no relief, therefore, could be gist led to the petitioner, against the aforesaid judgment of the Court below, the husband has come up in appeal to this court.
(2.) When the appeal came up for hearing before me, the learned counsel for the Parties suggested that an attempt he made for reconciliation between the parties and it may be possible that they may the together. The case was adjourned and the parties did appear in Court on 20th and 23rd of April, 1979. In spite of best efforts made by the counsel for the parties and other relations who had come with the parties, no reconciliation was possible. The wife was willing to go to the husband without any conditions whereas the husband was not prepared to keep the wife at any cost. Consequently, the case was post-poned for hearing on merit.
(3.) Shri Y. P. Gandhi the learned counsel for the appellant, has challenged the finding of the learned trial Court on Issues Nos. 1 and 4 and has argued that the Court below was wrong in coming to the conclusion that the conception of the child was possible from the loins of the appellant. According to him, the leave chart of the appellant brought by Corporal Santokh Singh A. W. 2 would show that he was not on leave during any period when it could be possible for conception to take place from cohabitation between the parties to the case. Apart from this circumstance, no other meaningful argument has been raised by him for displacing the judgment of the learned trial Court. I find that there is no merit in the argument raised by the learned counsel as it is the admitted case that the appellant was posted to Ghaziabad which is about ten miles from Delhi and the respondent was staying in a village in District Ludhiana which is about 160 miles from Ghaziabad. It is true that from the leave chart it is not shown that the appellant took leave between June, 1972 and 3rd of October, 1972, when he left for Madras but Santokh Singh A. W. 2, produced by the appellant, has admitted that the appellant had joining time between 25th of September and 3rd of October, 1972. According to him, the appellant was relieved from Ghaziabad on 25th of September, 1972, and he left for Madras on 3rd of October, 1972, from Delhi. It was for the appellant to explain positively as to what he was doing in between this period and there is no explanation ordered by him about his stay during this period. On the other hand, the respondent as R. W. 1 had clearly stated that during the aforesaid period the appellant had come to the village and stayed with her. According to her statement, during the period he cohabitated with her several times and as a result of that she got conceived and the child was born on 6th June, 1973. Her statement on visit of the appellant to her village during this period is supported by Dalip Singh R. W. 2, a tempo driver who had brought the appellant to the house of the respondent. The other unrebutted material on the record is the letter Exhibit A-1 dated 12th June of 1971, written by the appellant himself to his wife which goes to show that he was informed of the birth of the child immediately and the matter was not kept concealed. The portion from the letter would be of importance : "I am quite well here. Good luck and good wishes to you and baby. Now my examination is so near. I cannot come to see. But of course, I will come in the month of October ............. Pay my best compliments to you and love to Goody baby........ On receipt of the aforesaid letter, the wife replied by letter dated 21st of June, 1973, Exhibit A-2. A reading of this letter shows that a telegram was sent to the appellant before his wife has taken to the hospital for delivery informing him of her condition and after the birth of the child, a letter was written to him in reply to which the letter Exhibit A-1 was written by him to the wife. A copy of the telegram has also been brought on the record as Exhibit A-3. All these facts go to show that the matter of conception and delivery of the child was not kept concealed from the appellant and there is no material on the record to show that lie ever alleged before the filing of the present petition on 8th May, 1977, that the child born was not from his loins. The respondent has stated that he had been coming to meet her from Ghaziabad from time to time and the distance from Ghaziabad to her village is such that even without leave he could come to her village by starting from Delhi on Saturday right, meeting her on Sunday and going tack to Ghaziabad again to attend to his duties on the morning of Monday, apart from his stay in the village of the wife during the period 25th September, 1972, to the 3rd October, 1972. From all the facts and circumstances narrated above, I am inclined to hold that the appellant has levelled a false allegation against his wife and there is no manner of doubt that the child born to the respondent was from tie loins of the husband. I maintain the finding of the learned trial Court under issue No. 1.;