P S SIVAGURU Vs. P S SAROJA

JUDGEMENT

(1.) This is an appeal from the judgment of the learned Principal City Civil Judge, Madras, dismissing a petition before him under S. 12(1)(c) and (d) of the Hindu Marriage Act, XXV of 1955. That petition was instituted by the present appellant, an upper division clerk in the office of the Accountant General, Madras, to have his marriage with his wife Saroja (the respondent) annulled on the ground that the respondent was, at the time of the marriage, pregnant by some person other than the petitioner.

(2.) Before proceeding into the merits of the evidence, I have to take note of a point of law urged before me by learned counsel for the appellant (Mr. T. K. Kasturi), which appears to be res integra, and is also of some interest and significance. The point relates to the burden of proof in such cases, and may not be very material at the present stage, in the sense that the entire evidence was before the lower Court when the learned City Civil Judge proceeded to judgment, and it is certainly undeniable that he has dealt with all the particulars of evidence in a careful and exhaustive manner in his judgment. But the question may assume some importance in a future case, and, even in this case, it may affect the perspective with which the facts have to be approached. In order to appreciate the precise point, it is necessary to set forth the relevant provisions of the Act as regards nullity upon this specific ground namely, concealed pregnancy. The provisions with which we are concerned in the present case may be extracted and set forth as follows (see also Bindra on the Hindu Marriage Act, XXV of 1955-1958 p. 356). Section 12(1) states:

(3.) The point urged before me is that, upon an examination of the scheme of the provisions extracted above, it would be apparent that the condition that marital intercourse with the consent of the petitioner should not have taken place since the discovery by the petitioner of the existence of the grounds for a decree (the third condition), is a kind of proviso or qualification of the main requirement of the section which a petitioner should establish before he can seek a decree of nullity, namely, that the respondent was at the time of the marriage pregnant by some person other than the petitioner. It is urged that, this being so, it would be for the respondent (the wife) to show, upon proof by the petitioner of pregnancy per alium at the time of marriage, that subsequently there was marital intercourse between the parties even after the petitioner had discovered, or had grounds to infer, the existence of the case for the decree. In brief, the burden of proof shifts to the wife (the respondent), when the initial fact is established of a pregnancy through another at the time of marriage. This argument would, of course, equally apply to the other condition of the petitioner's ignorance. Admittedly, there is no decision bearing upon this matter of any Court in this country, and the English decisions that I have been able to trace do not throw any direct light upon this.