RANGASWAMY Vs. NAGAMMA

JUDGEMENT

(1.) The respondents in MC. No. 14 of 1968 on the file of the Prl. Civil Judge, Mysore, are the appellants in this case. The said case was filed by the respondent in this appeal, under S.9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for restitution of conjugal rights and it ended in a decree against the first appellant. Hence this appeal.

(2.) The first appellant is the husband of the respondent. Their marriage took place on 28-6-1964 at Mysore. Appellants 2 and 3 are the father and mother of the 1st appellant. The appellants are residents of Bangalore City. The father of the respondent is a resident of a village in Mysore District. After the marriage, the respondent came to the house of the appellants and was residing with them. On the night of 22nd February, 1965 she gave birth to a child at Vani Vilas Hospital, Bangalore. After staying in the hospital for a period of 12 days, she returned to the residence of the appellants and thereafter she was taken along with the child by her father to his village. The first appellant became suspicious about the paternity of the child, since it was born on the 239th day after the marriage and the delivery of the child was a normal one. The case of the petitioner in the Court below and the respondent herein was that even before her marriage with the first appellant, he was in intimate terms with her while she was staying in a Girls' Hostel at Mysore City. At that time the first) appellant was studying in Maharaja's College, Mysore and therefore, there were opportunities for them to meet off and on. Her case is that even during that time she had sexual intercourse with the first appellant before her marriage and afterwards thev were married, and after the marriage she was continuously staying in the house of the first appellant at Bangalore City except for a break of 2 or 3 days during which period she had gone to her parents' house in Mysore District, to attend some festival. It was further pleaded that after the marriage she was continuously having sexual intercourse with the first appellant and there was no justification for the first appellant to have any suspicion about the paternity of the child. After she was taken to the house of her parents on 4th March, 1965 after the birth of the child, the first appellant did not make any attempt to secure her back. On the other hand he abandoned her. Some letters written by the respondent to the appellant No.l elicited no reply. But on the other hand the first appellant instituted a petition in H.M. Misc. Case No.105 of 1967 in the Court of the Civil Judge, Bangalore, under S.10 of the Act for judicial separation, which he later withdrew. Since the first appellant did not allow the respondent to join him at Bangalore at his residence, she filed the above petition for restitution of conjugal rights in the year 1968.

(3.) The appellants contended in their statement of objections that the respondent was pregnant even at the time of the marriage and that the said fact was not disclosed to them. The first appellant did not have sexual intercourse at any time with her till the birth of the child, since the formal nuptial ceremonies had not been performed. It was admitted by them that the respondent was staying in their house at Bangalore imme diatelv prior to the date on which the child was born, but they contended that the child was not the child of the first appellant. Their further rasp was that the respondent got herself admitted in the Vani Vilas Hospital without the knowledge of anv of the inmates of the house of the appellants and they came to know of the birth of the child only on the next day through some person who was working as a ward-boy in the said hospital. The father of the respondent took her from the hospital directly to his village and that the respondent did not go back to their residence at Bangalore after she left Vaniyilas Hospital. It was also pleaded by the awellants that in accordance with the custom prevailing in the community to which the parties belonged, there was a proceeding before the Yejamans which resulted in a divorce and that therefore the first appellant and the Respt. were no longer husband and wife, when the petition was presented before the Court below. It was also pleaded that since the Respt. was pregnant by some person other than the 1st appellant at the time of the marriage and that the said fact was not made known to the first appellant, the first appellant was entitled in law to a decree declaring the marriage as a nullity and therefore, he was entitled to plead the said ground by way of defence to the petition under S. 9 of the said Act. Under these circumstances, it was contended that the petition was liable to be dismissed.