C.S. Rangabhattar vs C. Choodamani

Sardar Ali Khan, J.—This C.M.A. arises out of the judgment and decree dt. 6-5-1989 in OP. No. 44 of 1986 on the file of the IInd Additional Judge, City Civil Court, Hyderabad.

2 The petitioner-husband filed the Original Petition u/s 12(1)(d) of the Hindu Marriage Act, hereinafter referred to as the "Act", for annulling the marriage between him and the respondent-wife with the following allegations:--

The petitioner married one Rajyalakshmi and got two songs and one daughter through her. The said Rajyalakshmi died in the month of August, 1984 leaving the three minor children in distress and there was no one in the family to look after the minor children. The petitioner has also submitted that he had undergone vasectomy operation on 23-11-1983 after the birth of the third child through the deceased wife Rajyalakshmi. It seems that he was persuaded by his parents that he should remarry as they were unable to look after the minor children. Thereafter, one Shri N. Ch. Raghavacharyulu, who is friend of the father of the petitioner, arranged the respondents match for the petitioner representing that the respondent belongs to a respectable family and she is the sixth daughter in the row of children of her parents. The petitioner and his father were taken to Yerraboyinapally village of Khammam District on 25-5-1985. After disclosing all the facts about himself, the petitioner and his father expressed their desire for the marriage of the respondent with the petitioner. The respondents parents were apprised of the facts that the petitioners wife died leaving three minor children and that he had undergone vasectomy operation and thereupon they have consented to give their sixth daughter, i.e., the respondent, in marriage to the petitioner. She was then aged about 19 years. The marriage was fixed and was solemnized on 31-5-1985 in accordance with the customs and rites of the Hindu religion. The grievance of the petitioner is that the fact that at the time of the marriage the respondent was pregnant by four or five months having had intimacy with some other person was concealed by the respondent and her parents and that they did not reveal the said fact to the petitioner. After the marriage the respondent was brought to Hyderabad and she began living with the petitioner and pretended that she was not pregnant. She used to cover up her lapses by observing three days menstruation period every month making the petitioner and others to believe that she was not pregnant. The petitioner states there was, therefore, no reason to suspect that the respondent was pregnant at an advanced stage. When the petitioner questioned respondent about the swelling of lower part of the abdomen and hardness thereof, the respondent-wife explained that she had undergone an operation for the removal of abscess which has caused the swelling and hardness. The petitioner believed the story of the wife as he found marks of operation and stitches on the lower part of the abdomen. The respondent wife expressed her desire in the third or fourth week of October, 1985 to go to her parents house to stay there for a month for taking rest but the petitioner insisted that she should stay with him and need not go to her parents House. On 7-11-1985 at about 1.00 a.m. in the night the respondent started complaining of abdominal pains. The petitioner in good faith thinking that there was something wrong in her stomach took her to Niloufer hospital for treatment. The respondent was examined in the hospital and an X Ray was taken and it was found that she was having advanced stage of pregnancy and the pains occurring to her were in fact the labour pains of delivery. After sometime the respondent delivered a full fledged male child weighing about six pounds and the petitioner was shocked to learn that the wife had delivered the child within about five months after the solemnization of the marriage with him on 31-5-1985. The petitioner questioned his wife about the humiliation brought about by her by delivering the child within a short period of five months after the marriage. Then the wife gave a letter admitting the lapses on her part, and the deception played by her and her parents. Thereafter the wife went away to her parents'' house along with her mother and sister. The petitioner got issued a registered notice through his lawyer on 23-11-1985 narrating all the facts and expressing his intention to get the marriage annulled. No reply was given on behalf of the respondents to the said notice. Under these circumstances, the petitioner submits that his marriage with the respondent is a nullity in the eye of law as she was pregnant at the time of the marriage through some other person and therefore prays for a decree of dissolution of marriage u/s 12(1)(d) of the Act.

3-4. In the counter filed on behalf of the wife all the facts alleged by the husband are denied in toto. The case of the respondent-wife is that the husband married the respondent after the fact of pregnancy was made known to him. He was fully aware of the fact that she was pregnant as it was brought to his notice. It is also stated that the primary object of the petitioner in entering into a second marriage was to have some one to look after the minor children. The petitioner and the respondent lived as husband and wife from 31-5-1985 to 7-11-1985 when the respondent delivered a male child after she was taken to Niloufer hospital by the petitioner, who had booked a special ward for her in the hospital. According to the version of the respondent-wife, the petitioner sent a letter to her parents that she had delivered a male child in the hospital and there was no one to look after her comforts and requested her parents to come and take her to their house. The wife further alleges that the petitioner paid the bills in the hospital. It is also alleged by the respondent in the counter that the petitioner through his uncle, who is a legal practitioner in the High Court, arranged for the adoption of the child and an adoption deed was drafted and one of the junior counsel, attached to his uncle''s wife, also signed as a witness in the adoption deed. The adoption deed was registered with the Notary and his uncle has taken a letter from her for the said purpose of adoption. The wife further alleges that it must be kept in mind that the petitioner is a father of three grown up children who is well aware of the world. He is a qualified officer drawing more than Rs. 5,000/- per month. The father of the petitioner is a doctor and another uncle is a legal practitioner in the High Court. The wife further states that the petitioner at one time took her to a Lady Doctor for abortion but since it was at a belated stage of pregnancy such a course of action was ruled out by the doctor. It is only when a male child was born he changed his opinion and wanted his uncle to arrange for adoption of the boy. The wife further reiterates that the petitioner had married the respondent with full knowledge of the pregnancy of the respondent as he wanted to have a second wife to look after the three minor children born through his first wife. In those circumstances the respondent wife pleads that there is no question of granting a decree declaring her marriage with the petitioner as a nullity.

The petitioner husband examined himself as P. W. 1 in the matter and has deposed to the effect that he was deceived by the wife that he did not notice any physical features of pregnancy either on 25-5-1985 or thereafter, till she delivered a male child in the hospital on 7-11-1985. The petitioner also deposes that neither he nor his parents were aware of the pregnancy of the respondent who was living in the house of the petitioner all the time after the marriage. The petitioner testifies that had he known about the pregnancy of the wife, he would not have married her. As the said fact having been concealed from him, he entered into the said marriage alliance. As stated above, the father of the petitioner is a medical practitioner; his junior paternal uncle is a retired Judicial Commissioner of Tripura and Manipur State and his another uncle is a leading legal practitioner in the High Court. The petitioner was working as an Engineer in the Government Mint at Hyderabad at the time of the marriage. The petitioner further states that on the nuptial night itself he found that the abdomen portion of the respondent was a bit elevated and he also saw a vertical scar on her stomach. He questioned the respondent about it who said that she had an operation as a result of which the scar is present on the stomach. After the consummation of the marriage, he took the respondent to his house in Hyderabad in Mehdipatnam area. Thereafter, at the request of the respondent he took a house for rent at Masab tank area. He further states that he was made to believe that she was having her usual menstrual periods. On the night of 6-11-1985 when the wife started complaining of back ache and also stomach pain he took her to Niloufer hospital in good faith thinking that there was something wrong in her stomach and there on the next day she delivered a male child in the Hospital. On 11-11-1985, it seems, the petitioner and his father questioned the respondent about her pregnancy within 5 1/2 months after the marriage. The respondent admitted her guilt of having illegal connections with another person before the marriage and she put down all these facts in writing and signed the document and gave it to the petitioner. At that time the respondent and her elder sister were also present. All this happened in the Niloufer hospital. Thereafter the petitioner stopped visiting the hospital. The petitioner further states that he was informed by his uncle Sri C. Nafasimhachary that the respondent gave the male child in adoption to a doctor'' family who are residing in America. He further states that he received letters from the respondent dated 16-11-1985, 25-11-1985, 5-12-1985 and 22-12-1985 wherein she admitted that she conceived by another person before marriage and has given birth to the male child who was given away in adoption to a doctor''s family living in America. These are the essential aspects of the evidence of P. W. 1 which will have to be kept in view for the purpose of deciding the case.

P.W. 2 is one N. Ch. Raghavachary who was acted as a mediator for arranging the marriage alliance between the petitioner and the respondent. He deposes that on 25-5-1985 the petitioner and his father came to his village for seeing the bride. He was also present at the time and he did not find any physical features of the respondent to suggest that she was pregnant at that time. Muhurtam was fixed on 31 -5-1985 and the marriage took place on the said day. This witness states that neither the respondent herself nor the members of the respondents family informed the petitioner or his parents about the pregnancy of the respondent.

The respondent-wife has been examined as R. W. 1 and in her deposition she has reiterated the facts which have already been narrated in great detail in the counter filed on her behalf she states that the petitioner and his father were informal about the pregnancy at the time of the settlement of the marriage and it was only after knowing the said fact the petitioner agreed to marry her. Subsequently the petitioner himself took her to Lady Doctor also and thereafter they resumed cohabitation till her delivery took place on 7-11-1985. She states that the petitioner has undergone vasectomy operation, that his first wife has died and that he was looking for someone to look after his minor children. It was due to all these factors that the marriage was arranged and the parties agreed to the match after knowing fully the conditions of each other. She also testified to the fact that when the male child was born to her in the hospital she was asked to give away the boy in adoption. After the delivery she was asked to write a letter giving away the child in adoption. Accordingly, at the instructions of Narasimhacharyulu and the petitioner she wrote a letter and the same was given to the petitioner. She wrote that letter as they had placed a condition that they would accept her as a wife of the petitioner only in the event of giving away the child in adoption. The respondent has studied up to IX Class and she is a reasonably educated lady who knows the intricacies of the married life. In the cross-examination she says that first she was not agreeable to give her newly born son in adoption but on persuasion she agreed to give the child in adoption after four or five days. This is the sum and substance of the evidence adduced by the respondent-wife which requires to be considered carefully in the matter.

It would be necessary to reproduce hereunder the provisions of Sections 12(1) and 12(2)(b) of the Act. Section 12(1)(d) is in the following terms:--

VOIDABLE MARIAGE :--

(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:--

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

Section 12(2)(B) of the Act reads as follows:--

12(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage -

(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 marriages 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 said ground."

It is thus clear from a reading of Section 12 that while u/s 12(1)(d) it is stated that if the respondent was, at the time of the marriage, pregnant by some other person, other than the petitioner the marriage would be voidable and may be annulled by a decree of nullity. However, under Sec. 12(2) it is provided that notwithstanding anything contained in sub-section (1) no petition for annulling a marriage can be filed on the ground specified in clause (d) of subsection unless the court is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged. Under, cl. (b) of sub-section (2) of Section 12 it is provided that no such application shall be entertained if the petitioner was at the time of the marriage aware of the facts alleged and if the marital intercourse with the consent of the petitioner has taken place since the discovery by the petitioner of the existence of the pregnancy.

In this case it is to be kept in mind that the petitioner is an educated person who can be deemed to have the necessary knowledge of the worldly affairs. He is a person who has already undergone one marriage and is the father of three children from that union. His marriage with the respondent herein is the second marriage after he had undergone vasectomy operation. It is also in the evidence of P. W. 2 himself that he was badly in need of a suitable lady to look after the three minor children left behind by his deceased first wife/ His parents had advised him to take another wife so that she may be able to manage the house-hold affairs and look after the children. It is under these exceptional circumstances that the marriage between the petitioner and. the respondent was solemnized. In so far as the respondent wife is concerned, she had committed a grave error in life in developing illicit intimacy before her marriage with another person as a result of which she got pregnant and was carrying pregnancy of 4 to 5 months at the time of her marriage with the petitioner. The preponderance of probabilities will have to be judged in this case in considering the question whether the requirements of Section 12 of the Hindu Marriage Act are satisfied in the instant case. It may be true that a woman who is 4 to 5 months pregnant may not appear to be pregnant as there is no physical feature discernible as such but the probabilities of the case clearly point to the fact that since the husband himself was undergoing a second marriage and was having three children from out of the wedlock of the first marriage apart from having undergone vasectomy operation, he could not have been looking for a marriage with an ideal girl for a second marriage in the context" of things as they were existing at that time. Therefore, there is every reason to believe that he was prepared to compromise with the situation and to settle down for a marital life which may not be equal to the expectations that one may have in looking for a partner in life.

Apart from the above, it is difficult to believe the story of the petitioner that even till the time of delivery on 7-11-1985 he was under the impression that the wife was suffering from some ailment which was resulting in the increase of the size of the abdomen. If that was so, then the pertinent question which remains to be answered by him is why for another six months he did not take to a doctor and have her examined about the ailment with which she was supposed to be afflicted. There is nothing on record to show that the petitioner expressed any concern about the health of the wife or has sought for medical advise about her health condition. A father of three children who must be credited with having a fair knowledge of pregnancy of woman cannot be so naive as to think that the wife''s belly is protruding and has become hard because "of the operation she had undergone earlier during her childhood. Indeed we find it extremely difficult to believe that even on 6-11-1985 when she complained of pain in the stomach the husband was still thinking that she was suffering from stomach disorder and took her to Niloufer hospital. It is inconceivable to think that the husband was never aware of the pregnancy of the wife although the period after the marriage when they have lived as husband and wife for a period of about five to six months having normal sexual relationship with each other. It is also improbable that the husband''s father who is a doctor and who might have had occasions to see the daughter-in-law after marriage had failed to notice the advanced stages of pregnancy of daughter-in-law.

Sri. T. Veerabhadraiah, learned counsel for the appellant husband has argued strenuously that if the husband had known about the pregnancy before the delivery of the child and still cohabited with the wife there is no cogent reason as to why all of a sudden after the delivery of the child the husband should think of separating from the wife. According to Mr. Veerabhadraiah, no particular motive or reason has been suggested for this conduct on the part of the husband excepting a suggestion that the birth of male child has given rise to this situation which is a far-fetched suggestion. We are unable to agree with Mr. Veerabhadraiah. When the facts and circumstances clearly suggest that the husband must have been well aware of the pregnancy after the marriage and yet lived and cohabited with the wife, the marriage cannot be annulled though it may be difficult to predicate as to what prompted the husband to take a different posture after the delivery of the child. Mr. Veerabhadraiah also placed strong reliance on the letters addressed by the wife (Exs. A-8 to A-10) to the husband soon after she reached the parents place after delivery. Mr. Veerabhadraiah has submitted that the wife would not have written letters in the language and tenor in which they were written if really the husband had knowledge of her pregnancy. We are of the view that the said letters do not necessarily lead to the conclusion that the husband was throughout unaware of the factum of pregnancy. Though in the letters the wife admits that she committed a mistake in not informing him, it is not possible to draw the inference that even after the marriage the husband was unaware of the pregnancy till the'' date of delivery. Further, these letters were written in a tone and in an obvious attempt to pacify the husband and to appeal to him to take her back. Hence one cannot expect a positive allegation to be made by the wife that he was fully aware of the pregnancy. Mr. Veerabhadraiah then argues that the husband was made to believe as the respondent was feigning that she was having the regular menstrual periods every month. We find it extremely difficult to believe that the husband was all the time innocent of the pregnancy of the wife and yet having the marital intercourse with her almost till the month when she delivered a child in the hospital.

With regard to adoption of the child, the wife deposing as R.W. 1 has stated that the male child born to her was given in adoption to a doctor''s family residing in America much against her will. No woman would like to part with her child unless there are very compelling reasons to do so. She has been asked to write a letter indicating her desire to give the child in adoption which cannot be taken at its face value. It is obvious that many things have happened behind the scene which resulted in the child being given away in adoption to a family living outside India. The respondent has practically no chance of seeing her son again in her lifetime. She has also deposed that all this was done designedly by ensuring her that if she does not give the child in adoption she will not be accepted as a wife by the petitioner and his family. We arc of the opinion that the adoption of the child was the result of persuasion on the part of the relatives of the petitioner and perhaps a promise made to her that she will be accepted as a wife if she agree to give the child in adoption to a family residing in America.

In view of the foregoing discussion, we hold that the present case comes within the four corners of sub-clause (iii) of Clause (b) of sub-sect ion (2) of Section 12 of the Act. Since the marital intercourse with the consent of the petitioner has taken place after discovery by the petitioner of the pregnancy of the wife, we are not inclined to believe the story of the petitioner that he was unaware of the pregnancy till the child was actually born to the respondent in the hospital on 7-11-1985. The lower court is therefore right in holding that the case will fall u/s 12(2)(b)(iii) of the Act and refusing to annul the marriage.

For the reasons stated above, we do not find any reason to interfere with the Judgment and decree of the court below passed in O.P. No. 44/85. We, therefore, confirm the Judgment and decree passed by the court below and dismiss the CMA, but in the circumstances of the case, there will be no order as to costs.

Appeal dismissed.