Ashok Kumar vs Sunita Devi

This appeal under section 34 of the Jammu and Kashmir Hindu Marriage Act 1980 has been filed by the husband against the judgment and

decree dated 290998 passed by the Additional District Judge (Matrimonial Cases), Jammu, who has dismissed his petition for annulment of his

marriage with the respondent.

The marriage of the parties, it is admitted was solemnized on 21061991 and both lived together in the matrimonial house until she gave birth to a

male child on 16011992. Since the child was born within seven .months from the date of their marriage, the appellant applied for annulment of the

marriage on the solitary ground that respondent was pregnant by some person other than the petitioner.

The petition has been dismissed holding that (i) the respondent was pregnant by the appellant and (ii) marital intercourse had taken place

between the parties after the discovery by the petitioner of the existence of the said ground.

Mr. Anil Sethi learned counsel appearing for the appellant argued that the trial court has misread the evidence to record the finding which is

unwarranted by the facts. According to him, the respondent has failed to prove that appellant had access to her before their marriage. He next

argued that the finding of the court that appellant had cohabited with the respondent even after becoming aware of her pregnancy by the other

person, is based on no evidence. Mr. Puri on the other hand, argued that the appellant had access to the respondent before marriage and

therefore, she became pregnant from him. His further contention is that the appellant having cohabited with respondent after becoming aware that

wife was pregnant before their marriage, the petition was rightly dismissed. Moreover, by filing a petition under section 13 of the Hindu Marriage

Act on 14021994 in the court of 1st Additional District Judge, Jammu, which was dismissed on 23091994, the appellant according to Mr. Puri, is

deemed to have given up this ground for the annulment of the marriage. In that petition, he had applied for dissolution of marriage on the ground of

cruelty only. The petition was filed without refereing to this petition, which was pending.

The issues before the trial court were (i) whether the respondent at the time of marriage was pregnant by a person other than the petitioner and

(ii) whether by filing another application for dissolution of marriage under section 13 of the Hindu Marriage Act on the sole ground of cruelty while

the petition under section 12 (d) of the Act was still pending disposal, the ground for annulment of the marriage has been lost.

The trial court found that the respondent was pregnant before marriage but not by a person other than the appellant but by himself, as he had

access to her before marriage. It further found that even if it is assumed that he was not the father of the child, who was conceived before marriage,

he has had marital intercourse with the respondent after he became aware of the fact of her pregnancy and has thus acquiesced in the Act.

It is not a disputed fact that the respondent was pregnant at the time of marriage. The disputed fact is whether she was pregnant by a person

other than the appellant. But assuming that she was pregnant by some person other than the appellant, the marriage can be annuled only if marital

intercourse had not taken place with his consent after the discovery of the existence of pregnancy. This is because while section 12 (1) (d) of the

Act makes such a marriage voidable clause (b) of subsection (2) of section 12 provides that no application for annulment of the marriage shall be

entertained unless the court is satisfied that (1) the petitioner was at the time of the marriage ignorant of the fact alleged and (2) that marital

intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of pregnancy.

The question is, when did the appellant became aware of her pregnancy. It is the statement of the appellant that respondent was examined by

Doctor Kusam Gupta on November 12, 1991. He also stated that on going through the prescription of the Doctor Kusam Gupta, he entertained

doubt about the fidelity of the respondent. It is also his statement that on examining the prescription, his sister had noticed that the respondent was

pregnant at the time of marriage. The respondent however, explained that the prescription might have been exchanged with another patient. So the

doubt entertained by the petitioner was confirmed by his sister. In case he was serious to verify the fact as a prudent man, he would have

approached Dr. Mrs. Kusam Gupta to rule out his doubt or the views of his sister. But he did neither and instead continued to cohabit with her

until the birth of the child. Assuming that respondent had disputed the genuineness of the prescription before accepting explanation, he should have

contacted Doctor Mrs. Kusam Gupta, whom he knew well to verify if what his wife said was correct otherwise he had no reason for him to doubt

her fidelity as stated by him. Since he had doubted her character after examining the prescription, and yet continued to cohabit with her without

verifying the fact about the date of pregnancy, he is estopped from seeking annulment of the marriage under section 12 (1) (d) of the Act. His

admission that he continued to have marital intercourse with the respondent until the first week of January, 1992 only supports the stand of the

respondent that he had fathered the child before their marriage was solemnised. This alone explains his silence and subsequent .conduct by having

marital inter course ever after 12111991 till she delivered the child. Having admitted that after reading the prescription and report of Dr. Kusam

Gupta dated 12111991, he became suspicious about the character of the respondent and yet continued to have marital intercourse with her until

the birth of the child in January, 92, he has forfeited his right to seek annulment of the marriage because grant of relief u/s 12 (1) (d) is subject to

clause (b) of subsection (2) of Section 12 of the Hindu Marriage Act. Both these provisions are reproduced below:

Voidable marriages: (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be

annuled by a decree of nullity on any of the following grounds namely,

(a) (b) (c)

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in subsection (1) no petition for annulling a marriage,

(a)........

(b) on the ground specified in clause (d) of subsection (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)........

(iii) that the marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the

said ground.

The Matrimonial court has found that after the discovery of the fact that the respondent was pregnant at the time of marriage, the appellant has

had marital intercourse with her from 12111991 upto the 1st week of Jan. 92. This finding is based on proper appreciation of evidence furnished

by the parties. It is strange that the petitioner has neither examined Dr. Kusam Gupta nor his sister who had found that she was pregnant at the time

of marriage. They were the best witnesses to prove (i) whether he was informed about the date of respondent's pregnancy and about the

explanation offerred by the respondent. Failure to examine them, raises an inference against the appellant that he was aware of the fact of

pregnancy at the time of marriage. In order to prove that he did not meet Doctor Mrs. Kusam Gupta after she examined the respondent on

12111991, it was necessary to examine her. Similarly as he had doubted the chastity of the respondent on reading the prescription. Dr. Kusam

Gupta was the best person to clarify his dobuts. She has not been examined as witness. Further when by reading the prescription, his sister told

him that respondent was pregnant at the time of their marriage, he took no steps to verify this from the doctor. The question is, why ? Obviously,

because either he had fathered the child or he was aware of the fact of her pregnancy at the time of marriage. It is not his case that he accepted the

explanation offered by the respondent about the exchange of her prescription and continued to cohabit with her. But assuming that the respondent

had offered such an explanation, his mother and sister were the best witnesses to prove this fact. Neither has been examined by the appellant. So,

his statement that respondent pleaded exchange of prescription of doctor Kusam Gupta is not reliable and failure to examine the doctor, his sister

speak volumes against him as they were the material witnesses. So, there is no doubt that even though he was aware of the fact that the respondent

was pregnant at the time of marriage, yet he cohabited with her voluntarily. But assuming that he was not aware of it, he became aware of it on

12111991 and still continued to have marital intercourse with her until the birth of the child. So, their marriage cannot be annuled in view of the

clause (b) of subsection 1.2) of section 12 of the Act.

There is yet another aspect of the case. It is admitted case of the parties that the respondent was taken to her parental house by the parents of

the appellant on 19011992 but he did not accompany them. This is intriguing and in all probability, he was not to part company with her but the

social stigma attached to such birth had forced this situation upon him as his parents, it appears could not reconcile to the fact that their

daughterinlaw was pregnant at the time of their marriage even if appellant may have fathered the child. This alone explains the behaviour of the

appellant, who it appears was unable to convince his parents about his willingness to live and spend rest of his life with the respondent. All this

could have been ascertained if his sister and mother had been examined because it is un'believable that the two ladies could not have discovered

the stage of pregnancy for months after the marriage. Women have uncanny habit of covering pregnancy and their silence about it until disdelivery

can be explained only on the hypothesis that social pressures forced them to take the drastic step.

This takes us to the question whether by filing petition under section 13 of the Act for dissolution of marriage on the sole ground of cruelty

during the pendency of the petition, the appellant is deemed to have given up the ground for annulment of the marriage under S. 12 (1) (d) of the

Act. It is an admitted fact that the petition under section 12 was filed on 16121992. It was decided on 290998. It is also admitted that appellant

filed petition under section 13 of the Hindu Marriage Act in the court of 1st Additional District Judge, Jammu on 14021994. In the petition it is

alleged that respondent is used to luxurious life style of city life and could not adjust herself in the matrimonial home. It is also averred that her

actions were unbecoming of a Hindu Wife as most of the time, she was found gossiping with neighbours. It is also stated that when the elders in the

family tried to pursuade her to behave properly, she on 18011999 became furious and left the matrimonial home without informing them and

eversince is living with her parents.

The appellant admitted that while the proceedings out of which this appeal has arisen were pending, he filed application for dissolution of

marriage under section 13 of the Hindu Marriage Act. He also admitted that the application was dismissed by the Additional District Judge.

However, he did not make any attempt to explain why ""the application for dissolution of marriage was filed while these proceedings were pending.

As noticed above, the divorce petition was instituted on 14021994 and later allowed to be dismissed in default on 23091994. All these

circumstances show that the appellant is the father of the child and has instituted the proceedings only under the pressure of of the parents or under

social pressure. No other reason can explain the filing of the petition for divorce while these proceedings were pending. There is thus no merit in

this appeal, which is dismissed without any order as to costs.