GABRIEL ANTONY Vs. THRESSYA GRACY

JUDGEMENT

(1.) This revision raises a nice, but important question as to the interpretation of S.19 of the Indian Divorce Act, 1869 (for short 'the Act').

(2.) The revision arises from a proceeding under S.125 of the Code of Criminal Procedure (for short 'the Code'). The facts are these: A husband learnt a few months after his marriage that his wife was pregnant at the time of marriage. The wife gave birth to a full grown child about seven months after the marriage. As the husband refused to maintain the wife and child, a claim was made against him by the wife for maintenance allowance under S.125 of the Code. The claim was resisted by the husband contending, inter alia, that his marriage was null and void ab inito since his consent for marriage was obtained by fraud in that the wife concealed the vital information from aim that she was pregnant through another man. His further case is that the wife had confessed to him later, after marriage, that she was pregnant at the time of marriage through another person. The Chief Judicial Magistrate accepted the contention and held that the marriage has no validity under law. Consequently the wife was non suited. The Sessions Judge, in revision, reversed the finding and held that her pregnancy was caused by the husband himself and that he knew about it even before marriage. Accordingly, the husband was directed to pay maintenance allowance to the wife and child. This second revision is hence at the instance of the husband. For the sake of convenience the husband will hereinafter be referred to as the petitioner.

(3.) It is not disputed that the petitioner has not obtained a decree declaring his marriage null and void. The stand of the petitioner is that when the marriage is null and void, there is no legal marriage in the eye of law and hence it is immaterial that a decree of nullity has been obtained and that the Magistrate exercising jurisdiction under S.125 of the Code is competent to decide the question regarding nullity of marriage. If evidence is adduced to his satisfaction, that the consent for the marriage was obtained by fraud, the Magistrate has a duty to treat the marriage as void, contended the counsel. The Chief Judicial Magistrate was persuaded to uphold the aforesaid stand of the petitioner on the strength of a decision rendered by a Full Bench of Bombay High Court in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another ( 1983 CriLJ 259 ) and also on. the decisions in Santhakumari v. Padmanabhan ( 1985 KLT 42 ); and Amina v. Hassan Koya ( 1985 KLT 596 ).