THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. Nos. 75 and 80 OF 1991 COMMON JUDGMENT: Both the appeals arise out of a common judgment dated 28.08.1991 in O.S.Nos.84 and 1155 of 1985 on the file of the II Additional Judge, City Civil Court, Hyderabad. The appeal in C.C.C.A.No.75 of 1991 arises out of the suit in O.S.No.84 of 1985, which was filed for dissolution of marriage, grant of divorce and also for maintenance of Rs.3,000/- per month towards iddat and maintenance at Rs.1,000/- from the date of suit till the date of decree of dissolution of marriage. The appeal in C.C.C.A.No.80 of 1991 arises out of the suit in O.S.No.1155 of 1985, which was filed for maintenance by the plaintiffs, who were the minor children of the defendant. The defendant in both the suits is the appellant herein. The parties are hereinafter referred to as arrayed in the lower Court. The allegations in brief in both the suits are that the defendant has married the plaintiff in O.S.No.84 of 1985 and out of lawful wedlock the plaintiffs in O.S.No.1155 of 1985 were born to them. According to the case of the plaintiffs, the marriage was said to have been performed on 23.05.1977 at Hyderabad and a sum of Rs.12,000/- was paid as dower and at the time of marriage, the plaintiff was in M.B.B.S. final year at Kakatiya Medical College, Warangal, whereas the defendant was studying final year of M.D. course in Osmania Medical College, Hyderabad. After the marriage, they stayed for 11 days at Hyderabad and thereafter left to Bangalore for one month and thereafter the plaintiff was staying with her parents at Hanamkonda till the completion of her studies. The defendant also completed his M.D. course in April, 1978. During the stay with the defendant, the plaintiff was not treated properly by the defendant and his mother and there was a complaint of giving less amount of dower and the mother of the defendant did not allow the privacy of the plaintiff and defendant, and even when the plaintiff was sick, she was not treated. The first child was born at Hanamkonda on 08.05.1978 and thereafter the plaintiff completed her M.B.B.S. examination in April, 1979. In January, 1979, the defendant was posted at Tirupati as Assistant Professor. He did not even take care of the plaintiff. The parents of the defendant reside at Kurnool and therefore, the plaintiff went to Kurnool along with the child, whereas she was ill-treated when she stayed for one week. Thereafter, she went to Tirupati, where also the child has fallen ill. During her stay at Tirupati, the plaintiff became again pregnant and the mother of the defendant suspected the character and insulted the plaintiff along with her daughter. The defendant also acted to her tunes and the defendant insisted for issue of a Khula and thereafter the brother of the plaintiff and another uncle came to Tirupati in October, 1979 and she was taken to Hanamkonda where she has fallen ill. Subsequently, the pregnancy aborted due to lack of proper food and good treatment. The defendant got employment at Libya and he came to Hanakmonda. The plaintiff got again pregnancy by 28.01.1980 and on 25.08.1980 the plaintiff gave birth to a female child and it was informed to the defendant but there was no response. The defendant has failed to perform the marital obligations and due to the conduct of the defendant, it has become difficult for the plaintiff to continue the marital relationship and hence, the suits. The defendant filed written statement admitting the marriage and also the education and the payment of dower of Rs.12,000/-. He denied the suggestion that the attitude of the plaintiff was not proper and she preferred to reside with her parents and the plaintiff failed to discharge her marital obligations. As per the medical report dated 08.10.1979, the plaintiff was pregnant and by that time, there was no contact and, therefore, the above pregnancy was suspected and consequently the plaintiff on realizing her mistake suggested the defendant for dissolution of the marriage by way of Khula and it was accordingly dissolved on 11.10.1979 at Tirupati and the plaintiff has executed a document to that effect and, therefore, there is no subsisting marriage. There is no liability to pay maintenance to the plaintiff or to the second child. Apart from it, the plaintiff herself was earning and consequently pleaded for dismissal of the suit. The plaintiff filed a rejoinder contending that the written statement was filed by GPA holder without the knowledge of the facts, rude behaviour of the defendant and his family members only the Khula was forced and it was not willingly given by the plaintiff. It was also further pleaded that the plaintiff underwent operation in the first week of November, 1979 and the defendant, to her surprise, came to Hanamkonda and stayed there and visiting Hanamkonda now and then from Tirupati and the plaintiff became pregnant in January, 1980 before the defendant left to Libya. Even the letters written by the defendant from Libya clearly reflect as to how the defendant treated the children as his own children and the present theory of suspecting the legitimacy of the second child is not true. On the basis of the above pleadings, necessary issues have been framed for trial and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-3. On behalf of the defendant, D.Ws.1 and 2 were examined and marked Exs.B-1 to B-3. After considering the evidence on record, both the suits were decreed and decree for dissolution of marriage was granted in O.S.No.84 of 1985 and a sum of Rs.3,000/- was granted as maintenance towards iddat period and monthly maintenance @ Rs.1,000/-. So far as the suit relating to the children is concerned, a sum of Rs.72,000/- was granted as arrears of maintenance and also @ Rs.1,000/- per month to each of the child till the first child attain the age of majority and the second child gets married. Aggrieved by the said common judgment and decree dated 28.08.1991, the present appeals are filed. The points that arise for consideration are: 1. Whether the marriage was dissolved by Khula dated 11.10.1979 under Ex.B-1 and if so, the wife of the appellant is not entitled for any maintenance or any decree of dissolution? 2. Whether the 2nd plaintiff in O.S.No.1155 of 1985 was not born to the defendant and the plaintiffs are not entitled for the maintenance? POINTS: There is not of much evidence available on record on both sides except the statements of the plaintiff as P.W.1 and the evidence of the defendant as D.W.1 supported by P.W.2, who is the brother of the plaintiff P.W.1 and D.W.2, who is the advocate and who issued the notice under Ex.B-2 said to be at the instance of plaintiff to the defendant. In view of the nature of the controversy between the parties, it has to be noted that when the parentage of the 2nd plaintiff is disputed, it is for the defendant to prove that he had no access with P.W.1 in or about the time when the 2nd plaintiff was conceived. Though certain allegations were made against the family members of the defendant and also the nature of the ill-treatment, no neighbours were examined. There is a presumption that when a child was born during the lawful wedlock, it shall be presumed to be a legitimate child and the burden is on the person, who disputes the same, to prove non-access. According to the case of the plaintiff, when she stayed in Hanamkonda before the defendant left to Libya, he came there and stayed for some time and thereafter she became pregnant. She also claims to have stayed for some time at Tirupati along with the defendant and there she got pregnancy and it was aborted. According to the case of the defendant, when this pregnancy was suspected, P.W.1 has realized her mistake and has voluntarily executed the deed of Khula agreeing to dissolve the marriage. Therefore, according to him, after 11.10.1979, there was no access. On the other hand, it is the contention of the plaintiff that this document was never signed by her and it was never communicated and acted upon and the evidence of D.W.2 cannot be accepted. Strong reliance has been placed by the plaintiff on Ex.A-2, which is a letter said to have been written by the defendant from Libya in 1984. This letter clearly goes to show that he was treating both the children as born to him. He never referred that only one child has born to him and a detailed study of the letter Ex.A-2 refers to the displeasure suffered by both the parties and also wish of happiness for the plaintiff. This document, which has been relied on by the lower Court, which is undisputed, clearly goes to show that the appellant was treating the 2nd plaintiff in O.S.No.1155 of 1985 as also born to him. If it is to be noted that the child was born in 1980 and the said letter was written in 1984 before filing of the suit. If really, the claim of the appellant that the second child was not born is true and acceptable, then there was no reason for him to refer to both the children and also their future. Therefore, it clearly goes to show that prior to the filing of the suit, the defendant has in unequivocal terms expressed love and affection to the children. Therefore, if this letter is taken into consideration coupled with the presumption, when naturally the claim that the 2nd plaintiff was not born, cannot be accepted. If this inference is possible then the irresistible conclusion is that the alleged Khula on 11.10.1979 as pleaded by the defendant is not true or it might not have been acted upon since even after the said dissolution, there is said to be cohabitation between the spouses and the contention that there was already a dissolution, cannot be accepted. Even otherwise, as per the evidence of D.W.2, he is a practicing advocate in suit and Ex.B-2 notice was got issued on the instructions of the plaintiff on 28.05.1983 to the defendant and copy of it was also said to have been sent to the mother of the defendant. He claims to have given instructions as per Ex.B-2 for executing document of divorce and not for recovery of any money. As against the instructions of the plaintiff for recovery of the money he has issued the notice Ex.B-2. In cross-examination, he stated that the plaintiff failed to produce any document before him evidencing the divorce and he does not know whether any reply was given by the defendant and prior to Ex.B-2 he had no acquaintance with the plaintiff. A reading of Ex.B-2, the alleged notice, clearly goes to show the birth of two children in the lawful wedlock and the neglect of the plaintiffs and calling upon the defendant to execute a document of divorce. It does not show that already a Khula was given on 11.10.1979 and a document was executed between the parties, a reply notice is said to have been issued on 17.09.1984 and it does not show that on 11.10.1979 the plaintiff has in fact executed the deed of Khula, which is marked as Ex.B-1 foregoing maintenance to herself and also the maintenance of the children. It was stated that at the instance of the advice of the elders and well-wishers, the marriage was dissolved by mutual consent. The names of those elders are not mentioned and none of them were examined. It is to be noted that the wording of this notice clearly shows that the alleged Khula was at the time when the second baby was in the womb, which was, evidently, after 11.10.1979. Since the delivery of the second child was said to be in August, 1980 and the pregnancy is said to be in December, 1979. Consequently, the theory that on 11.10.1979 itself Ex.B-1 Khula was given by the plaintiff is falsified. It is to be noted that this Ex.B-1 was not filed along with the written statement. The lower Court has noticed this and found that Ex.B-1 was filed in the Court for the first time on 16.03.1989 even without the knowledge or notice to the other side and without any petition for condonation of the delay. In fact, there is no signature of the plaintiff and about the date as to when it was executed, except that there is date under the signature of the defendant. In fact this Ex.B-1 clearly goes to show that the relinquishment was false and the child also, which was in the womb of the plaintiff. This, as rightly found by the lower Court, cannot be treated as a genuine document as by 11.10.1979, there is no proof that a child was in the womb of the plaintiff. Therefore, taking into consideration all these aspects, the lower Court has rightly disbelieved the claim of the appellant and taking into consideration the status of the parties and also the fact that the defendant worked in foreign countries and has got sufficient earning capacity, the maintenance granted by the lower Court cannot be said to be excessive or unreasonable. There are absolutely no merits in the appeals and accordingly both the points are held against the appellant. Therefore, both the appeals are dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 21-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. Nos. 75 and 80 OF 1991 Date: 21-11-2011 MR