Dhirubhai Naranbhai Patel, J. - (1.) This First Appeal has been preferred by the original applicant who preferred Matrimonial Suit No. 8 of 2006 against the respondent for declaration that the marriage between the appellant and the respondent is null and void as per Sec. 12(1)(d) of the Hindu Marriage Act, 1955. This application preferred before the District Judge, Seraikella -Kharsawan has been dismissed and, therefore, the original applicant has preferred this First Appeal. Having heard learned counsel for the appellant and looking to the facts and circumstances of the case, it appears that the marriage between this appellant and the respondent was solemnized on 6th February, 2006. On 14th/17th April, 2006, parents of the respondent came at the residence of this appellant and the respondent had gone along with them to her parental house, where abortion has taken place. Thus, it is alleged by the appellant that she was pregnant within two months which is a major reason for declaration of the marriage null and void under Sec. 12(1)(d) of the Hindu Marriage Act, 1955.
(2.) We have perused the evidences on record and also looking to the facts and circumstances of the case, we see no reason to entertain this First Appeal mainly for the following facts and reasons: - - (i) Looking to the evidences on record and also looking to Sec. 112 of the Indian Evidence Act, 1872 to be read along with Sec. 12(1)(d) of the Hindu Marriage Act, 1955, no error has been committed by the District Judge, Seraikella -Kharsawan in dismissing the application preferred by this appellant. (ii) Sec. 112 of the Indian Evidence Act, 1872 reads as under: - - "112. Birth during marriage, conclusive proof of legitimacy. - -The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." In view of the aforesaid provision, the legitimacy of the child is to be presumed, unless other evidences are given by this appellant. There is no such evidence led by this appellant rebutting the presumption under Sec. 112 of the Indian Evidence Act, 1872. (iii) Thus, in absence of any evidence, to the contrary, to the presumption under Sec. 112 of the Indian Evidence Act, 1872, the marriage between the appellant and the respondent cannot be declared as null and void. This cannot be argued that though there will be a legitimate son or daughter, the divorce must be given. (iii) Looking to the evidences given by the witnesses on appellant's side, we see no reason to declare the marriage between the appellant and the respondent as null and void. Even otherwise also, looking to Sec. 12 of the Hindu Marriage Act, 1955, it is voidable marriage if the circumstances stated in Sec. 12 of the Hindu Marriage Act, 1955 are proved. Looking to the evidence on record, these circumstances are not proved by the appellant which are enumerated in Sec. 12 of the Hindu Marriage Act, 1955. As a cumulative effect of the aforesaid facts and reasons, the circumstances enumerated in Sec. 12 of the Hindu Marriage Act, 1955 are not proved and, hence, no error has been committed by the trial Court in dismissing the application preferred by this appellant and we are not inclined to take any other view than what is taken by the learned trial Court. Hence, there is no substance in this First Appeal and, therefore, the same is hereby dismissed.;