IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.1201 OF 2004. APPEAL NO.1201 OF 2004. APPEAL NO.1201 OF 2004. Shri Mangesh Shankar Kolat ...Appellant. Versus. Shankar Namdeo Kolat ...Respondent. Ms Swapna Abhyankar h/f Shri D.N. Salvi for the Appellant. Shri Piyush Shah for the Respondent. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 05th February, 2008. : 05th February, 2008. : 05th February, 2008. P.C.: P.C.: P.C.: 1. Heard advocates appearing for the parties. The Appeal is by the original defendant. 2. According to the case of the respondent-plaintiff he had married to one Vatsala. His contention is that from 1972 the said Vatsala deserted him. The appellant was born on 21st January, 1980. According to the case of the respondent-plaintiff as the appellant was born on 21st January,1980, he is not his son. A suit was filed claiming a declaration that the appellant was not the son of the respondent and that he was not entitled to claim any right as a son. The suit was contested by the appellant by contending that he has born from a valid wedlock between the respondent and the said Vatsala. The trial Court accepted the case made out by the respondent-plaintiff that he had undergone a family planning operation on 01st October, 1977. However, the trial Court proceeded to dismiss the suit. : 2 : 2 : 2 : In an appeal preferred by the respondent, the Appellate Court has interfered and passed a decree. 3. The submission of the learned advocate for the appellant is that there was no material on record to rebut the presumption under section 112 of the Indian Evidence Act, 1872. The second submission is that the decision in petition for divorce filed by the respondent against his mother does not decide the issue of legitimacy and the said judgment cannot be used for rebutting the presumption under section 112 of the Evidence Act. 4. I have given careful consideration to the submissions. The respondent had filed a petition in the year 1982 for divorce on the ground of cruelty and adultery against the said Vatsala. By judgment and decree dated 19th December, 1988, the said petition was decreed on both the grounds of cruelty and adultery. The learned trial Judge in the said decision held that the respondent had proved that said Vatsala had deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. It will be necessary to refer to the finding recorded by the trial Court in paragraph No.26 of the said judgment. The said paragraph No.26 reads thus: : 3 : 3 : 3 : "26. The Petitioner’s evidence on record shows that the Respondent No.1 is living separately without any good reason from the Petitioner since May 1972 and therefore, there is a reason to believe that the Respondent No.1 has deserted the Petitioner for more than two years immediately preceding the presentation of the petition." 5. In paragraph No.28 the trial Court in the said Petition held thus: "28. It appears from the evidence on record as well as averments made by the petitioner in his petition that he got his own family planning operation i.e vasectomy operation on 01.10.77 vide sterilization certificate Exhibit 44. Exhibit 40 is duplicate of the same Exhibit 45. After vasectomy operation of the Petitioner, his semen was examined by the Medical Officer, Primary Health Centre, Dehu Taluka Haveli, District Pune on 27.12.1978 in which it was found that sperms were not present in the semen of the Petitioner vide certificate Exhibit 44. The extract of register showing family planning operation of the Petitioner is produced by the Petitioner. : 4 : 4 : 4 : Exhibit 46 is a copy of Exhibit 44." 6. In the present case, according to the appellant he was born on 21st January, 1980. It is therefore, obvious that going by the findings recorded in Marriage Petition No.62 of 1982 which are reproduced above, the presumption under section 112 of the said Act of 1872 stood rebutted. Therefore, the Appellate Court was justified in passing a decree for declaration and injunction in favour of the respondent. No substantial question of law arises. The second appeal is accordingly dismissed. There will be no orders as to costs. 7. In view of the dismissal of the appeal, Civil Application No.1616 of 2004 does not survive and the same is rejected. Judge. Judge. Judge.