M. Anantanarayanan, C.J.
1.This is a reference under Sections 10 and 17 of the Indian Divorce Act by the learned District Judge South Arcot, for confirmation of the decree declaring the marriage between the parties (the petitioner and the first respondent) to be null and void. In the petition itself, the two grounds upon which dissolution of the marriage was sought under the provisions of the Indian Divorce Act IV of 1869 are set forth in paras 5, 6 and 7. The first ground is the somewhat extraordinary one that the marriage was performed on 26-4-1965 according to Christian rites, that on 4-12-1965 the first respondent gave birth to a female child in the Government Hospital at Ulundurpet, that this child, a fully matured infant was born after about 212 days of the marriage, that the normal period of gestation is 270 days, and that, hence, this child must have been conceived by the wife prior to the marriage. The husband affirmed that he had no sexual relation with the wife prior to the date of the marriage, that he taxed his wife with having conceived through another prior to the marriage, and that the wife confessed that she was previously in illicit relationship with the second respondent, husband of her paternal aunt, Since the wife fraudulently suppressed the fact of pregnancy through another (pregnancy per alium) prior to the marriage, this is one ground of the dissolution sought for. The other ground is that, even subsequent to the marriage, there was illicit relationship and adultery between the first respondent and the second respondent.
2. Apart from the fact that conception or pregnancy through another prior to the actual date of marriage, is not a ground for dissolution of marriage under Section 10 of Act IV of 1869, when the evidence is scrutinised, it is at once seen that proof of this ground has miserably failed. It is undoubtedly true that the evidence of Dr. Saroja (P. W. 1) proves that on 4-12-1965 at 6-50 A. M, the first respondent was delivered of a female child, in the maternity ward of the hospital. But first of all, though the normal period of gestation is 270 days, there are lesser periods even for full-term births which have actually occurred, as is clear from the passage in Modi's Text Book on Jurisprudence, to which our attention has been drawn by learned counsel acting as amicus curiae. In other words, this is a case in which it is impossible to draw any definite inference that the wife conceived the baby, necessarily prior to the actual date of marriage. Again, and even granting this, the conception could have been due to the husband himself, and we have only his bare denial of that fact or possibility. Most significantly, there is a very important circumstance appearing in the evidence, from which this ground of the fraudulent suppression of a pre-marital conception by the wife, through a person other than her husband, will have to be totally excluded as a ground for dissolution of the marriage or divorce. This is the very specific evidence of Dr. Saroja (P. W, 1) to the effect that 'I know the petitioner as her husband. He was present in the hospital at the time of delivery.' This, in our view, renders it altogether unacceptable that we should act on this alleged ground for divorce or dissolution of the marriage; in any event, the husband was fully aware of the pregnancy, and had apparently condoned the conception, or, even more probably, the conception could have been after the marriage itself.
3. With regard to the other alleged ground, namely, adultery with a relative, the evidence is thoroughly inconclusive and unsatisfactory. In the addresses given in the petition, the address of the first respondent relates to a different village altogether from the village of the second respondent. Considering the close relationship between the parties, it is not at all unnatural that the first respondent should have paid a visit to the second respondent, whether during the subsistence or the marriage, or after the petitioner and the respondent had ceased to live together. The evidence of the petitioner is to the effect that respondent 1, when taxed by him with the pre-marital pregnancy admitted an illicit relationship between herself and respondent 2. He adds 'She is now living with respondent 2 as his wife'. This is not corroborated, in any real sense. P. W. 3 merely states that respondent 1 had illicit intimacy with respondent 2, the husband of her paternal aunt, prior to the marriage, and that she is having illicit intimacy thereafter also. Since the two would appear to be living in different villages at the time of the institution of this proceeding, this appears to be sheer conjecture on the part of this witness. It does not appear to be based upon any personal knowledge and he does not say so. This evidence is totally unacceptable and too vague for basing any inference or conclusion.
4. Under these circumstances, and eventhough the respondents have failed to contest the proceeding, we must decline to accept the evidence on the available record.The petition has necessarily to be dismissed.There is no doubt the hardship that themarriage has broken down and that thepetitioner and the first respondent are notnow living together, and that it may bepossible that the first respondent is livingwith the second respondent on terms ofillicit intimacy even now. If that is thefact, we reserve a right to the husband toinstitute a fresh petition for divorce on thatground, after adducing relevant and tangible evidence, in corroboration of such averments as he may choose to make in a petition of that character. Subject to thisreservation, the reference itself has to bedismissed, as totally excluding a basis fora relief of either dissolution of marriage ordivorce, under the circumstances. No costs.