JUDGMENT
D.M. Dharmadhikari, J.
1. The appellant/husband petitioned for grant of a decree of divorce under the provisions of Hindu Marriage Act, 1955 (for short ‘the Act’) on the allegation that the respondent/wife gave birth to a female child as a result of her illicit sexual connection with a person outside the wed-lock. The learned trial Judge dismissed the petition of the husband on the ground that presumption of legitimacy of the child under Section 112 of the Evidence Act has not been satisfactorily rebutted by the husband by proof of non-access to the wife which could not have led to pregnancy and delivery of the wife.
2. For deciding the appeal preferred by the husband, few undisputed facts may first be set out before discussing the legal submissions made by the counsel on behalf of the parties.
3. The parties were married on 29-11-1985 at Panna. After the marriage, they lived in the house of the appellant at village Majan, district Sidhi. On 16-12-1985 the wife went to her parents at Panna. On 8-1-1986 the husband also went to Panna and stayed with the wife in her parent’s house up to 12-1-1986. On 18-4-1986, the husband took back the wife to his village. Some time in May 1986 Dr. Geeta Banerjee (P.W.4) medically examined the wife during her pregnancy. The wife delivered a female child after caesarean operation at Rewa on 31-10-1986. According to the husband, Dr. Badri Singh (P.W. 2) who is related to him as his brother-in-law and in whose quarter at Rewa the husband and wife had, for a short period, lived, saw the X-ray report of the wife during her delivery, and raised a doubt that the child inside the womb was not matured for a cesarean operation. Then he questioned the wife. She admitted that she had illicit sexual relation-
ship with Rafique Mohammad Khan of Panna.
4. The learned counsel appearing for the husband laid utmost emphasis on the statement in paragraph 11 of the wife in her cross-examination where she admitted that when the husband went to Panna on 8-1-86 and stayed with her in her parent’s house up to 12-1-86, she was in menses. The learned counsel on the basis of the above admission of the wife in her cross-examination submits that the above admitted version of the wife clearly proves that she must have conceived some time after 12th of January 1986 and the fact that prior to the above date there was access between the two could not be held to be good ground to reject the husband’s case. Thus the husband has satisfactorily rebutted the presumption under Section 112 of the Evidence Act. Reliance is placed on Madanlal v. Smt. Sudesh Kumari, AIR 1988 Delhi 93.
5. On behalf of the husband it is also submitted that the fact that the wife refused to submit herself to blood group test for determining paternity of the child is an additional circumstance for which an adverse inference about the legitimacy of the child should be drawn against the wife. Reference is made to 1986 MPLJ 105 : (AIR 1986 Madh Pra 57) (Hargovind Soni v. Ramdulari).
6. The husband has examined two doctors, namely, Dr. G. P. Dwivedi (P.W. 3), Radiologist, who had X-rayed the wife during her pregnancy and Dr. Geeta Banerjee (P.W. 4) who performed the caesarean operation for delivery of the child. Both the doctors have deposed that the child born was fully matured. It is only Dr. Badri Singh (P.W. 2), brother-in-law of the husband who has stated that according to his study of the medical report of the wife, the child was premature at the time of delivery by caesarean operation.
7. The only question before this Court is whether on the oral and medical evidence on record, the presumption under Section 112 of the Evidence Act stands rebutted and the husband is entitled to a decree of divorce.
8. The Petitioner/husband seeks annulment of marriage on the ground of pregnancy per alium i.e. concealed pregnancy. It is not the case of the husband that the wife was already pregnant at the time of marriage because that would be a ground for voiding the marriage by a decree of nullity
under Section 12(1)(d) of the Act. A decree of divorce under Section 13(1)(i) of the Act can be obtained only on the ground that other party to the marriage, after solemnization of the marriage, had voluntary sexual intercourse with any person other t ban his or her spouse. In the instant case, the main emphasis for seeking a decree of divorce by the husband is on the admission contained in the statement of wife in her cross-examination that after marriage when the husband visited her parents’ place between 8-1-86 to 12-1-86 the wife was in menstrual period and could not have conceived. Relying on the above part of the statement of the wife, the argument sought to be built up is that the wife became pregnant due to illegitimate sexual connection with a person outside the wed-lock sometime after 12-1-86 when the menstrual period might have been over. The rule of evidence contained in Section 112 of the Evidence Act raises mandatory presumption that a child born during wedlock, no matter when the child could be begotten, is the legitimate issue of the husband of the mother. The presumption can be dislodged by proof of non-access during the time of conception. The husband has admitted a consummation of marriage after it took place on 29-11-85 and also admitted access to each other between 29-11-85 to 12-1-1986. The child born on 31-10-1986 could have been conceived as the husband and wife had access to each other between the above period. As held by the Supreme Court in Dukhtar Jahan v. Mohammad Farouq, AIR 1987 SC 1049, the sole ground that the child had been born in seven months ‘time after the marriage leads to no conclusion that the child was conceived even before the marriage. Giving birth to a viable child after 28 weeks’ duration of pregnancy is not biologically an improbable or impossible event.
9. The husband cannot derive much help from the admission made by the wife in her cross-examination that when the husband visited her while she was living in her parents’ house between 8-1-1986 and 12-1-1986, she was in menstrual period. Merely because the wife states that she was in menstrual period at the time of visit of the husband, it cannot be conclusively held that she could not have conceived earlier to the above period as a result of her access to the husband before the aforesaid period.
10. The medical opinion on the above subject may be found in Text Books of Medical Jurisprudence and Toxicology. The medical opinion as
contained in the medical text books is that even during pendency there could be occasional cases where a pregnant woman may have menstruation. See : the following passage in the text book “Courtroom Medicine” Edited by Marshall Houts, page 223 :
“Calculations Based on Menstrual Dates.
Ordinarily a woman is two weeks pregnant when she misses her first period, six weeks when she misses her second, and so on. In occasional cases conception is followed by a short and scanty flow, a “phantom” period, around the time when normal menstruation would be due. If calculations are based upon the supposition that pregnancy began subsequent to such a flow, results will ultimately prove that the patient is four weeks further along than was originally supposed. There are also cases in which menstrual dates are not available: for example, a woman may become pregnant while her periods are already absent because she is nursing a baby, or for some other reason.”
See: also the following passage from the text book namely “Parikh’s Textbook of Medical Jurisprudence and Toxicology”, Page 405 :
“Suppression of menstruation: Menstruation normally ceases after impregnation and does not recur until some months after child birth. However, instances are known of women who have never menstruated becoming pregnant, and menstruation continuing during early months of pregnancy. Again, cessation of menses may result from ill health or fear of pregnancy.”
Jhala and Raju in ‘Medical Jurisprudence’, Sixth Edition, at page 441, have also opined thus :
“. . . It is, therefore, necessary to know the main signs and symptoms from which it may be concluded that the woman is pregnant. There are some symptoms which may be considered presumptive or probable. Of these the main symptoms are the cessation of menstruation and presence of morning sickness. Even after conception, menstruation is possible for a period of three months. After that period menstruation cannot appear because of fusion of the decidua vera and decidua capsularis…”
11. The wife, therefore, in her version is truthful when she admitted that at the time when the husband visited her in her parents’ house
between 8-1-86 and 12-1-86 she was in menstrual period, but that is not a conclusive indication that she could not have conceived prior to the above period. In her statement she categorically stated in paragraph 2 of her examination-in-Chief that when her husband came to her parents’ house in January 1986 she had already become pregnant. The version of the wife is appears natural and truthful.
12. In view of the above medical opinion, the contention of the husband based on the alleged admission of the wife in her cross-examination about her menstrual period does not lead to a rebuttable presumption that the wife had conceived as a result of any illicit sexual intercourse with any person outside the wedlock. The presumption in Section 112 of the Evidence Act thus does not stand rebutted, in view of the admitted access between the husband and the wife during which she could have conceived and delivered a normal child.
13. So far as the blood test is concerned, no doubt, with the advancement in the medical science, it can to a great extent help in coming to a conclusion for fixing the paternity of the child. The Supreme Court in its decision reported in AIR 1993 SC 2295 (Goutam Kundu v. State of West Bengal) has, however, held that blood test has no legal sanction as evidence under the Indian Evidence Act. It has also been held that since the blood test is a constraint on the personal liberty of a person, and it may have the effect of branding a child as a bastard and its mother an unchaste woman, the Court should be slow and very conscious while directing blood test of the parties. See : The conclusions and safeguards laid down by the Supreme Court in Paragraph 26 of its judgment in Goutam Kundu (supra) :
“(1) Courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained;
(3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act;
(4) the Court must carefully examine as to
what would be the consequence of ordering the blood test; whether it. will have the effect of branding a child as a bastard and the mother as an unchaste woman;
(5) no one can be compelled to give sample of blood for analysis.”
14. It is no doubt true that in the matrimonial Court below the husband had filed an application seeking directions of the Court to the wife to submit herself and her child to blood test, but the wife refused on the ground that there is no one in her family to take her for the test to New Delhi. On the basis of evidence discussed above, and the medical opinion, this Court does not find that any adverse inference can be drawn against the wife in refusing to submit herself to blood test.
15. Under a fear that in this appeal this Court may raise such a presumption against the wife, the learned counsel on her behalf has moved an application (registered as I. A. No. 454/98) now expressing her willingness to submit herself to blood test. This Court, however, in view of the above discussed evidence of admitted access between the parties, refuses to allow such an application for blood test because it may have ill-effect on the status of the child. As has been held above, there is undisputed evidence of access between the spouses. The intervening menstrual period before delivery of the child is, on the medical opinion, no ground for coming to the conclusion that the wife became pregnant through some person other than her spouse.
16. Before parting with this case, it may be observed that repeated attempts were made by this Court by calling the parties to reconcile, but the attempts have failed. It appears that the seed of suspicion was planted in the mind of the husband by the medical opinion of his own brother-in-law Dr. Badri Singh (P.W. 2) with whom the couple had stayed in his quarter for a short period after the marriage.
17. For the reasons aforesaid, this Court finds no merit in this appeal. It is accordingly dismissed, but in the circumstances without any order as to costs.
