(1) This is an appeal from the judgment of the learned Principal City Civil Judge, Madras, dismissing a petition before him under S. 12(1)(c) and (d) of the Hindu Marriage Act, XXV of 1955. That petition was instituted by the present appellant, an upper division clerk in the office of the Accountant General, Madras, to have his marriage with his wife Saroja (the respondent) annulled on the ground that the respondent was, at the time of the marriage, pregnant by some person other than the petitioner.
(2) Before proceeding into the merits of the evidence, I have to take note of a point of law urged before me by learned counsel for the appellant (Mr. T. K. Kasturi), which appears to be res integra, and is also of some interest and significance. The point relates to the burden of proof in such cases, and may not be very material at the present stage, in the sense that the entire evidence was before the lower Court when the learned City Civil Judge proceeded to judgment, and it is certainly undeniable that he has dealt with all the particulars of evidence in a careful and exhaustive manner in his judgment. But the question may assume some importance in a future case, and, even in this case, it may affect the perspective with which the facts have to be approached. In order to appreciate the precise point, it is necessary to set forth the relevant provisions of the Act as regards nullity upon this specific ground namely, concealed pregnancy. The provisions with which we are concerned in the present case may be extracted and set forth as follows (see also Bindra on the Hindu Marriage Act, XXV of 1955-1958 p. 356). Section 12(1) states:
'Any marriage solemnised, 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,
(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-s. (1) no petition for annulling a marriage:
(b) on the ground specified in clause (d) of sub-s (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 solemnised before the commencement of this Act within one year of such commencement and in the case of marriage solemnised 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.'
(3) The point urged before me is that, upon an examination of the scheme of the provisions extracted above, it would be apparent that the condition that marital intercourse with the consent of the petitioner should not have taken place since the discovery by the petitioner of the existence of the grounds for a decree (the third condition), is a kind of proviso or qualification of the main requirement of the section which a petitioner should establish before he can seek a decree of nullity, namely, that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
It is urged that, this being so, it would be for the respondent (the wife) to show, upon proof by the petitioner of pregnancy per alium at the time of marriage, that subsequently there was marital intercourse between the parties even after the petitioner had discovered, or had grounds to infer, the existence of the case for the decree. In brief, the burden of proof shifts to the wife (the respondent), when the initial fact is established of a pregnancy through another at the time of marriage. This argument would, of course, equally apply to the other condition of the petitioner's ignorance. Admittedly, there is no decision bearing upon this matter of any Court in this country, and the English decisions that I have been able to trace do not throw any direct light upon this.
(4) But it will be clear, upon a scrutiny of the Matrimonial Cases Act, 1950 in the United Kingdom (see also Rayden on 'Divorce', 7th Edn. p. 1023), that our present S. 12 of the Hindu Marriage Act, (Act XXV of 1955) and the sub-clauses thereunder, practically reproduce S. 8(1)(d) of the English Act, and the three provisos indicated thereunder. The matter is dealt with in Latey on Divorce (14th Edn.) in S. 397, under the heading 'Pregnancy of wife per alium'. It is also dealt with in Jackson's 'The Formation and Annulment of Marriage' (1951 Edn.) at page 205. The latter work furnishes a convenient summary of the law in England, and the following extract is significant:
'The matter is now settled by statute in English law (S. 8(1)(d) of the 1950 Act) providing that a marriage shall be voidable on the ground that the respondent was at the time of the marriage pregnant by some person other than the petitioner, but that the Court shall not grant a decree unless it is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged, that proceedings were instituted within a year from the date of the marriage, and 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 other words, this ground of annulment would appear to be a species of fraud perpetrated by a spouse, which would invalidate the marriage. Consequently, it is for the petitioner who seeks annulment on this ground to establish that the fraud is present, and he must affirmatively show that all the conditions set forth in the section are satisfied. Hence, from this statement of the law, it is clear that it would not be sufficient for a petitioner merely to show the existence of pregnancy per alium at the time of marriage.
He must show that he was ignorant of the facts upon that occasion, he must institute proceedings within the period of limitation fixed by statute, and he must also satisfy the Court that he did not have marital intercourse with the wife subsequent to the time when he had grounds for reasonably inferring the case for annulment. In Latey on 'Divorce', page 215, the matter is stated in the following form, upon the authority of Smith v. Smith, 1948 P. 77, one of the very few English cases upon the subject:
'The proviso that there must have been no sexual intercourse after the discovery of the grounds for a decree, operates if there has been intercourse after the husband had knowledge of facts from which any reasonable person would conclude that his wife was pregnant at their marriage by another man.'
(5) Hence I must hold that there is no onus of proof upon the respondent, (the wife), in such cases, with regard to any of the essential conditions upon which the husband can obtain a decree of nullity of marriage. It is for the husband, on the contrary, to satisfy the Court that these conditions are fulfilled.
(His Lordship reviewed the evidence in the case and concluded).
In result, I am satisfied, from a careful review of the evidence and the probabilities, that the lower Court came to the correct conclusion in holding that the petitioner must have been responsible for the pregnancy, that he had knowledge of the pregnancy at the time of the marriage, and that he subsequently had marital intercourse with the respondent with this knowledge. We cannot speculate upon the grounds which have finally estranged the petitioner from the respondent, and led him to institute these proceedings. Social exposure of some kind, or sense of humiliation, resulting from such exposure, or even instigation of third parties, might well be responsible for the present proceeding seeking a decree for nullity. The judgment of the lower Court is therefore confirmed, and the appeal, which fails, is dismissed with costs.
(6) Appeal dismissed.