: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.683 OF 2004 SECOND APPEAL NO.683 OF 2004 SECOND APPEAL NO.683 OF 2004 Basvaraj Sidrayya Patil ...Appellant V/s. Shobha Basavraj Patil ...Respondent Mr.K.B. Sonwalkar, Advocate, for the Appellant. Mr.S.S. Patwardhan, Advocate, for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 26TH MARCH, 2008. DATE : 26TH MARCH, 2008. DATE : 26TH MARCH, 2008. P.C.: P.C.: P.C.: 1. Heard Advocates appearing for the parties. 2. Though the submissions were fully heard on 22nd February, 2008, order was not passed to enable the parties to explore the possibility of settlement. Today it is pointed out that though the Advocates appearing for the parties have made best efforts to bring about amicable settlement, the settlement could not be arrived at. 3. The appellant is the husband and respondent is the wife. A petition was filed by the appellant by invoking section 12(1)(d) of the Hindu Marriage Act, 1955. The contention of the appellant in the said : 2 : petition was that at the time of solemnization of marriage, the respondent was pregnant by somebody else other than the appellant. It was, therefore, contended that the marriage was nullity. It was alleged that since 30th June, 1999 the parties have been residing separately. The Trial Court dismissed the petition and, in Appeal preferred by the appellant, the decree passed by the Trial Court has been affirmed. 4. The submission of the learned Advocate appearing for the appellant is that there was sufficient evidence on record to show that till 10th May, 1999 the appellant had no physical relationship with the respondent. It is submitted that the reports at Exhibit-46 and 47 were sufficient to hold that as on 30th June, 1999 the respondent was pregnant for a period of 13 weeks. He submitted that in view of the conclusive nature of the medical reports at Exhibit-46 and 47, the Courts below could not have discarded the case made out by the appellant. 5. I have perused the impugned Judgments as well as notes of evidence. The perusal of the impugned Judgment shows that the Courts below have made indepth consideration of the oral evidence on record. The : 3 : Courts have considered the evidence of Dr.Shah who was examined to prove the reports at Exhibit-46 and 47. The Appellate Court found that on the reports at Exhibit-46 and 47, the name of the patient was mentioned simply as "Shobha Patil" and name of either her father or her husband was not mentioned. Dr.Shah admitted that the identification marks of the patient examined by him were not mentioned in the record. Dr.Shah was not able to tell the name of the person who brought the patient to his hospital. Considering the evidence of Dr.Shah, the Courts below and, in particular, Appellate Court found it difficult to accept that the reports at Exhibit-46 and 47 were relating to the respondent herein. After having read evidence of Dr.Shah, it is very difficult to find fault with the concurrent findings of facts recorded by the Courts below. 6. Another submission was made by the learned Advocate for the appellant. He submitted that the parties have been residing separately from the year 1999 for a period of 8 years. He submitted that in view of recent decision of the Apex Court, as reconciliation between the parties is not possible, this is a case where marriage ought to have been dissolved by a decree of divorce. : 4 : 7. It is true that parties have been residing separately for a period of eight years. However, it must be noted that the present Second Appeal does not arise out of a petition filed for divorce or judicial separation. The contention of the appellant in the petition filed by him before the Trial Court was that the marriage was nullity. Therefore, it is for the appellant to adopt necessary proceedings in that behalf. 8. Subject to what is stated above, there is no merit in the Second Appeal and the same is accordingly dismissed. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]