J. Chandrasekharan alias Sekhar vs G. Rosaline Pushpamoni and Another

M. Anantanarayanan, C.J.—This is a reference u/s 10 and 17 of the Indian Divorce Act by, the learned District Judge of 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 paragraphs 5, 6 and 7. The first ground is the somewhat extraordinary one that the marriage was on 26th April, 1965 according to Christian

rites, that on 4th December, 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 2nd 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 2nd respondent.

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

u/s 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 4th December, 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.

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 2nd 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 2nd

respondent, whether during the subsistence of 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 No. 1, when taxed by him with the pre-marital pregnancy admitted an illicit relationship between

herself and respondent No. 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 No. 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. ''

Under these circumstances, and even though 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 the marriage has broken down, and that the

petitioner and the first respondent are not now living together, and that it may be possible that the first respondent is living with the 2nd respondent

on terms of illicit intimacy even now. If that is the fact, we reserve a right to the husband to institute a fresh petition for divorce on that ground, 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

this reservation, the reference itself has to be dismissed, as totally excluding a basis for a relief of either dissolution of marriage or divorce, under

the circumstances. No costs.