1. The respondents in M. C. No. 14 of 1968 on the file of the Principal Civil Judge, Mysore, are the appellants in this case. The said case was filed by the respondent in this appeal, under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for restitution of conjugal rights and it ended in a decree against the first appellant. Hence this appeal.
2. The first appellant is the husband of the respondent. Their marriage took place on 28-6-1964 at Mysore. Appellants 2 and 3 are the father and mother of the 1st appellant. The appellants ere residents of Bangalore City. The father of the respondent is a resident of a village in Mysore District. After the marriage, the respondent came to the house of the appellants and was residing with them. On the night of 22nd February, 1965 she gave birth to a child at Vani Vilas Hospital, Bangalore. After staving in the hospital for a period of 12 days, she returned to the residence of the appellants and thereafter she was taken along with the child by her father to his village. The first appellant became suspicious about the paternity of the child since it was born on the 239th day after the marriage and the delivery of the child was a normal one. The case of the petitioner in the Court below and the respondent herein was that even before her marriage with the first, appelland, he was on intimate terms with her while she was staying in a Girls' Hostel at Mysore City.
At that time the first appellant was studying in Maharaja's College, Mysore and therefore, there were opportunities for them to meet off and on. Her case is that even during that time she had sexual intercourse with the first appellant before her marriage and afterwards they were married, and after the marriage she was continuously staying in the house of the first appellant at Bangalore City, except for a break of 2 or 3 days during which period she had gone to her parents' house in Mysore District, to attend some festival.
It was further pleaded that after the marriage she was continuously having sexual intercourse with the first appellant and there was no justification for the first appellant to have any suspicion about the paternity of the child. After she was taken to the house of her parents on 4th March. 1965 after the birth of the child, the first appellant did not make any attempt to secure her back. On the other hand he abandoned her. Some letters written by the respondent to the appellant No. 1 elicited no reply. But on the other hand the first appellant instituted a petition in H. M. Misc. Case No. 105 of 1967 in the Court of the Civil Judge, Bangalore, under Section 10 of the Act for judicial separation, which he later withdrew. Since the first appellant did not allow the respondent to join him at Bangalore at his residence, she filed the above petition for restitution of conjugal rights in the year 1968.
3. The appellants contended in their statement of objections that the respondent was pregnant even at the time of the marriage and that the said fact was not disclosed to them. The first appellant did not have sexual intercourse at any time with her till the birth of the child, since the formal Nuptial ceremonies had not been performed. It was admitted by them that the respondent was staying in their house at Bangalore immediately prior to the date on which the child was born, but they contended that the child was not the child of the first appellant. Their further case was that the respondent got herself admitted in the Vanivilas Hospital without the knowledge of any of the inmates of the house of the appellants and they came to know of the birth of the child only on the next day through some person who was working as a ward-boy in the said hospital. The father of the respondent took her from the hospital directly to his village and that the respondent did not so back to their residence at Bangalore after she left Vanivilas Hospital. It was also pleaded by the appellants that in accordance with the custom prevailing in the community to which the parties belonged, there was a proceeding before the Yejamans which resulted in a divorce and that therefore, the first appellant and the respondent were no longer husband and wife, when the petition was presented before the Court below.
It was also pleaded that since the respondent was pregnant by some person other than the 1st appellant at the time of the marriage and that the said fact was not made known to the first appellant, the first appellant was entitled in law to a decree declaring the marriage as a nullity and therefore, he was entitled to plead the said ground by way of defence to the petition under Section 9 of the said Act. Under these circumstances, it was contended that the petition was liable to be dismissed.
4. In the Court below, on behalf of the respondent two witnesses were examined including herself in support of her case. P. W. 1 is the Office Superintendent of Vanivilas Hospital. Bangalore He produced before the Court the Admission Register of the Hospital for the period between 18-2-1965 and 4-3-1965 (Ex. P. 19). Ex. P. 19 (a) is the entry dated 22-2-1965 relating to one Nasarnma, wife of Rangaswamy. i.e., the respondent in this case. She had been admitted into the Vanivilas Hospital for delivery and that one Narasamma, who according to the respondent was no other than her mother-in-law, had signed the said register. P, W. 2 is the respondent herself.
She has stated that the marriage between her and the first appellant took place on 28-6-1964 and that prior to the marriage she was meeting the first appellant at Mysore City where both of them were staying at that time, and that after their marriage she came to Bangalore and staved in the house of the appellants where she was having sexual intercourse with the first appellant. She stated that she was taken to the hospital by her mother-in-law appellant No 3 and that Ex. P. 19 (b) was the signature of her mother-in-law.
After the birth of the child, she was taken by her father to his village in Mysore District and that she was staying there with the child. The appellants became suspicious about the paternity of the child on the ground that the child was born on the 239th day after the marriage, and therefore, they did not allow the respondent again to join the first appellant and other members of the family at their residence in Bangalore. Therefore, she was compelled to file the above petition. She further stated that the child was born to the first appellant alone and nobody else.
5. As against the above oral evidence adduced on behalf of the respondent, the appellants examined on their behalf six witnesses. R. W. 1 is appellant No. 2 Chikkarangaiah. who is the father of the first appellant. His evidence is that, he did not know about the respondent being admitted into the hospital on 22nd February, 1965. He came to know of it only on the next day. The nuptial ceremony was not performed and therefore the first appellant could not have had sexual intercourse with the respondent when she was staying with them. According to him the father of the child must be somebody else other than the first appellant.
He also stated that he complained about the fact that the respondent had become pregnant even prior to the marriage, to the Yejamans of the community and that the Yejamans had ordered that the marriage between the respondent and the first appellant should stand dissolved. He stated that the petition was therefore liable to be dismissed. R. W. 2 and K. W. 3 are the two panchayatdars who are said to have participated in the panchayat. They are residents of Mysore City. Their evidence is that they were the Yejamans of the community to which the parties belonged and that the second appellant had complained to them against the respondent and had stated that she had become pregnant even before her marriage and therefore, they should investigate into the matter and pass appropriate orders.
According to R. W. 2 they passed an order, after issuing notice to the respondent that the marriage between the respondent and the first appellant had come to an end. They do not give any evidence about the existence of the custom prevailing in the community to which the parties belonged which authorised the Yejamans of the community to pass orders having the effect, of dissolution of marriage. D W. 4 is the Record Keeper of Vanivilas Hospital. He produced before the Court the Parturition Register of the hospital for the period from 12-12-1964 to 26-2-1965, and that was marked as Ex. D.1 in the case. Ex. D 1 (a) related to one Nagamma, wife of Ransaswamy, i.e., the respondent in this case. He had no personal knowledge about the said entry.
D. W. 5 is the first appellant in his evidence he admitted that he was staying in Mysore City when the respondent was also staying in Mysore City. He however pleaded that there were no opportunities for him to meet her before the marriage and that he met her for the first time at the time of the marriage. He stated that he did not have sexual intercourse with the respondent until the child was born because the nuptial ceremony had not been performed. His further evidence was that he was not even talking to her in privacy and that he could talk to her only in the presence of either her parents or his parents.
Even though in the course of his evidence he denied having moved about with the respondent, he had to admit the same when he was confronted with a letter written by him. In that letter dated 8-12-1964 marked at Ex. P.14 in the case he had stated that he had brought the respondent from Mysore to Bangalore. At that time the respondent must have been in advanced stage of pregnancy. But he stated that he was not able to look at the respondent at any time till she was delivered of the child end that he was not able to make out that she was pregnant. He further stated that he withdrew the petition which he had instituted for judicial separation since he had obtained an order of divorce from the Yejamans of the community.
The 6th witness examined on behalf of the appellants was appellant No. 3 the mother-in-law of the respondent. She admitted in the course of her evidence that the respondent was brought to their house on the date of the marriage and she was sent back thereafter. Her further evidence is that after some time the respondent came end stayed with them at Bangalore City. She denied having taken the respondent to the hospital. She also denied having signed at Ex. P.19 (b).
In the cross-examination it is brought out that she was not able to identify her signature even in the Vakalathnama given by her to her lawyer. She stated that the respondent was not having menses during the period of stay but that she was not able to make out by the physical appearance of the respondent whether she was in an advance stage of pregnancy even on the date on which she went to the Hospital for delivery. The Court below on a consideration of the material before it disbelieved the case of the 1st appellant that he was not having sexual intercourse with the respondent and came to the conclusion that the 1st appellant had not made out that the child was born to a person other than himself.
It also came to the conclusion that in view of Section 9(2) of the Act, it was not open to the 1st appellant to plead the ground under Section 12(1)(d) of the Act as a defence to the above petition, since the period of one year had elapsed from the date of the marriage. The lower Court therefore, passed a decree as prayed for. Aggrieved by that decree, the appellants have filed this appeal.
6. We shall take up for consideration the second ground on which the Court below relied for rejecting the defence of the appellants. Section 9(2) of the Act states that:
'Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.'
The ground relied upon by the first appellant in this case is one falling under Section 12(1)(d) of the Act. The relevant part of that section reads as follows :
'12. (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely--
(a) x x x x x
(b) x x x x x
(c) x x x x x
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in Sub-section (1), no petition for annulling a marriage,--
(a) x x x x x
(b) on the ground specified in Clause (d) of Sub-section (1), shall be entertained unless the Court is satisfied,--
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriage solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.'
In order to succeed in a petition for annulling a marriage filed on the ground mentioned in Section 12(1)(d) of the Act, it is necessary for the petitioner to satisfy the requirements of Clause (b) of Section 12(2) of the said Act also. In the instant case it is not disputed that by the time the defence was filed in the case, more than one year had elapsed from the date of marriage.
The question, therefore, for consideration is whether the defence set up in this case even if true is a tenable one. The answer to this depends on the construction of Section 12(2)(b)(ii). If it is construed as prescribing a mere period of limitation, then probably the contention of the first appellant would be well-founded, in view of the legal principle that limitation does not bar a defence. But if it is held that Section 12(2)(b)(ii) does not prescribe a period of limitation but as prescribing time limit within which alone the ground under Section 12(1)(d) would be available and beyond which it would be non-available, then the said ground cannot also be urged as a defence to a petition under Section 9 beyond the prescribed period.
We are of the opinion that the period of one year mentioned in Section 12(2)(b)(ii) is not a period of limitation as such. It lays down the condition subject to which it would be open to the husband to maintain a petition for a declaration that the marriage is a nullity. After the expiry of a period of one year, the said ground would not be available at all to the husband to seek relief under Section 12 of the Act. The above provision in Section 12 of the Act is based on the lines of Section 7(1) of the English Matrimonial Causes Act, 1937 which reads as follows:--
'In addition to any other grounds on which a marriage is by law void or voidable, a marriage shall be voidable on the ground......(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner; provided that.........the Court shall not grant a decree unless it is satisfied- (i) that, the petitioner was et the time of the marriage ignorant of the facts alleged; (ii) that proceedings were instituted within a year from the date of the marriage; and (iii) that marital intercourse.......has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.'
In Chaplin v. Chaplin, (1948) 2 All ER 408 the above clause came up for consideration before the Court of Appeal in England. In that case a petition for declaration that the marriage was a nullity was filed beyond one year from the date of marriage, but within the extended period under the Limitation (Enemies and War Prisoners') Act 1945. It was argued on behalf of the petitioner before the Court that the petition was maintainable even after the expiry of one year from the date of the marriage because the period of limitation stood extended by the provisions of the Limitation (Enemies and War Prisoners') Act. 1945 which provided in Sub-section (1) of Section 1 as follows:
'If at any time before the expiration of the period prescribed by any statute of limitation for the bringing of any action any person who would have been a necessary party to that action if it had then been brought was an enemy or was detained in enemy territory, the said period shall be deemed not to have run while the said person was an enemy or was so detained, and shall in no case, expire before the end of twelve months from the date when he ceased to be an enemy or to be so detained, or from the date of the passing of this Act, whichever is the later........'
Rejecting the above contention Tucker. L. J.. observed thus:--
'The mere fact that Parliament thought fit, in the special case of persons who were enemies or were detained in enemy territory, to provide that some extension of time should be given for bringing proceedings under Sub-section (1) of Section 7 of the Matrimonial Causes Act, 1937, does not, in my view, bind us to decide that the sub-section should be interpreted as meaning that Parliament has intended to enable the Courts, in applying the sub-section, to invoke equitable principles with the result that in many cases the period of twelve months would be considerably extended. I do not think that this case can be dealt with merely by considering whether or not this subsection is for some purposes a statute of limitation. The question turns on the construction of the sub-section as a whole. One must appreciate the subject-matter with which it is dealing, viz., proceedings to alter the status of the parties, the result of which will affect the children of the marriage, and that in all the cases specified in the sub-section Parliament has thought fit to prescribe in the clearest possible language that the Court shall not grant a decree unless it is satisfied that proceedings were instituted within a year of the date of the marriage. It would be wrong for this Court to extend that period in a way which might, in some cases, involve bastardizing children that had been born of the union which it was sought to avoid......'
7. In Savalaram Kacharoo v. Yeshodabai Savalaram, : AIR1962Bom190 Section 12(2)(b)(ii) of the Act came up for consideration before the High Court of Bombay. It held that the period mentioned in that sub-clause did not prescribe a period of limitation for filing a petition by the plaintiff. It was in terms mandatory and prohibitory and provided that the Court should not entertain the petition if the conditions laid down were not satisfied. Those conditions were in absolute terms and they could not be relaxed. Hence it came to the conclusion that a petition filed for a nullity of marriage on the ground mentioned in Section 12(1)(d) of the Act on the day on which the Court opened after long vacation during which vacation the period mentioned in Section 12(2)(b)(ii) ended, could not be entertained.
In coming to the said conclusion it relied on the decisions on an analogous provision of law found in Provincial Insolvency Act. Under Section 19(2) of the Provincial Insolvency Act, a creditor is entitled to present an insolvency petition against a debtor, provided the act of insolvency has been committed within three months from the date of presentation of the application. The several decisions relied on by the High Court of Bombay, namely, Mokshamadan Lal v. Hariprasad, : AIR1956Bom650 ; Chenchuramana Reddi v. Arunachalam, (AIR 1935 Mad 857 (FB)); and Muradan Sardar v. Secy. of State, : AIR1939Cal313 , laid down that the provisions of Limitation Act were not applicable to extend the period of three months within which a creditor was expected to file a petition.
The High Court of Madras has taken the same view with regard to the provisions of Section 12(2)(b)(ii) of the Act. In Vellinayagi v. T. Subbramaniam, : AIR1969Mad479 it was held that the period mentioned in the said sub-clause was not a period of limitation and it could not be extended on any account. It is no doubt true that no decision has been placed before us in which it has been held that although a petition for annulling a marriage was not maintainable after the expiry of the period of one year after marriage when the ground on which the decree is sought is one falling under Section 12(1)(d), that the said ground was not available as a defence also in an action under Section 9 of the Act beyond one year from the date of marriage.
On a reasonable construction of what is contained in Section 9 (2) of the Act, we are of the opinion that what the Parliament intended when it said that it was not permissible to plead in answer to a petition for restitution of conjugal rights, any ground which would not be a ground for judicial separation or for nullity of marriage or divorce, was that if on the date on which the defence was filed to a petition for restitution of conjugal rights, the respondent was not entitled to maintain a petition for judicial separation or for nullity of marriage or for divorce on any of the grounds mentioned in the Act, then he could not successfully defend himself against the action for restitution of conjugal rights on the same ground. It is clear from the provision of Section 9(2) that no other ground can be pleaded as a defence for a petition under that Section.
If that is the, true interpretation to be placed on Sub-section (2) of Section 9, we are of the opinion that in the year 1969 (sic) the first appellant had no right to raise a ground covered by Section 12(1)(d) as a defence to the petition filed by the respondent when he was not entitled to maintain a petition for a decree for nullity of the marriage in view of the provisions contained in Section 12(2)(b)(ii) of the Act. In the absence of any other tenable ground the lower court was right in coming to the conclusion that the first appellant had not made out any defence at all to the petition for restitution of conjugal rights.
8. With regard to the contention urged on behalf of the first appellant before us, viz., that the first appellant and respondent had ceased to be husband and wife when the petition was presented in view of an order passed by the Yejamans of the community, it is to be observed that the pleadings and the evidence in this case ere insufficient to hold in favour of the first appellant. In the statement of objections, apart from saving that the Yejamans had passed such an order, there are no particulars regarding the custom prevailing in the community which entitled the Yejamans to pass an order of divorce. The Yejamans who have been examined as R. Ws. 2 and 3 do not also say that there was such a custom prevailing in the community to which the parties belong. In the above circumstances, it is very difficult to accept the submission made on behalf of the appellants that such a custom was prevailing in the community and to hold that the first appellant and respondent had ceased to be husband and wife when the petition was presented before the court. The lower court has observed that this part of the case is a mere myth.
9. Even on merits, we are of the opinion that the appellants have not made out their defence. Admittedly, the marriage took place in the month of June. 1964 and the child was born on the 239th day or 240th day from the date of the marriage. It is in the evidence of R. W. 6, the mother-in-law of the respondent that the girl came to Bangalore on the date of the marriage and stayed with them. It is further seen that the first appellant had opportunities to meet the respondent at her parents' place and after sometime she came and staved with the appellants at Bangalore for several months prior to the date on which she gave birth to the child.
It is difficult to believe the evidence of the first appellant and third appellant that it was not possible for them to make out that the respondent was pregnant from her physical appearance. There is no evidence to show that they had any suspicion about the conduct of the respondent till the child was born. The birth of a child on the 240th day after sexual intercourse is not unnatural. Ordinarily a period of 10 days plus 9 months after the date of the last menstruation is taken as the period of gestation of a normal baby. But on account of the existence of certain individual factors, women give birth to children sometimes earlier than 280 days. It is enough to refer at this stage to a passage from Modi's Medical Jurisprudence and Toxicology (XIV Edition) page 329 which states:--
'Children born at or after 210 days or 7 calendar months of uterine life are viable, i.e., ere born alive and are capable of being reared.'
The fact that a formal nuptial ceremony had not taken place would also be of no avail to the first appellant in this case. We feel that the case of the respondent that she was having sexual intercourse with the 1st appellant is more probable. We reject the contention that the child of the respondent is one born to some one other than the first appellant. The appellants have therefore failed to establish their defence in this case.
10. In the result, the appeal fails and it is dismissed with costs.