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2005 DIGILAW 2256 (RAJ)

Gopal Prasad v. Jeewaata

2005-08-25

VINEET KOTHARI

body2005
Judgment Vineet Kothari, J.-This appeal has been filed by the appellant husband Mr. Gopal Prasad being aggrieved by the Judgment and decree dated 22.03.1994 of the learned District Judge, Bharatpur in Civil Misc. Petition No. 76/1991 rejecting his application filed under Section 12 of the Hindu Marriage Act, 1955 (herein after referred to as “the Act” of 1955) for annulment of his marriage with Smt. Jeevanlata, which was admittedly solemnised as per Hindu rites on 05.03.1991 at Malipura (Sewar) District Bharatpur. 2. The appellant in the petition for annulment of his marriage sought such annulment on the ground that the respondent Jeewanlata was pregnant by some person other than the appellant at the time of marriage and, therefore, according to Section 12(1)(d) of the Act of 1955. The marriage was voidable and accordingly a decree for nullity of the said marriage was prayed for. 3. The appellant petitioner the husband contended in his petition that after his marriage with respondent Jeevanlata on 05.03.1991 his wife came with him to Bharatpur and remained with him for four to five days and thereafter, she went back to her parents house. According to the petitioner husband after she returned back from her parents house after five/six days, she complained of physical weakness and she also started vomiting. Thereupon, the petitioner consulted a Physician who advised them to consult with a Gynecologist. On 07.04.1991 the petitioner accompanied with respondent and consulted with Dr. Mahesh Agarwal who opined that the respondent Jeevanlata was pregnant of three months and for confirmation, he advised for sonography test. Thereupon, the petitioner arranged for sonography test of the respondent on 08.04.1991 and the report of Dr. Ramesh Singhal of the said sonography revealed that the respondent was pregnant of eleven weeks. Thus, according to the petitioner, the respondent was pregnant at the time of marriage by some other person and that the petitioner had no knowledge of such pregnancy at the time of marriage and further that he did not have any sexual intercourse after discovery of the said pregnancy. Accordingly, the petitioner prayed for annulment of the said marriage before the Court below. 4. The respondent denied the said allegation in the petition and on the contrary in her additional pleas in the written statement filed before the Court below, she levelled allegation against the petitioner husband about demand of dowry. 5. Accordingly, the petitioner prayed for annulment of the said marriage before the Court below. 4. The respondent denied the said allegation in the petition and on the contrary in her additional pleas in the written statement filed before the Court below, she levelled allegation against the petitioner husband about demand of dowry. 5. The learned District Judge in the Judgment impugned in the present appeal framed only one issue as to whether the respondent Jeevanlata was pregnant by some other person at the time of marriage with the petitioner on 05.03.1991. The learned District Judge doubting the evidence of all the Doctors who came in the witness box and also finding discrepancy in the date of sonography (Ultra Sound) examination on 07.04.1991 and the report thereof being of 08.04.1991 held that it cannot be said whether the sonography report was of the same person i.e., respondent namely; Jeevanlata. The Court below also held that there was no evidence as to what happened to the pregnancy of respondent Jeevanlata. Accordingly the learned Court below rejected the petition of the petitioner husband under Section 12 of the Act of 1955. 6. Being aggrieved with the said impugned Judgment , the present appeal has been filed by the appellant husband in this Court. 7. Learned Counsel appearing on behalf of the appellant vehemently urged that the learned Court below has erred in rejecting the petition and dis-believing the medical evidence on record before the Court. He has also taken me through the statements of various witnesses recorded by the Court below. In support of his submission, he submitted that if within a month of marriage on 05.03.1991, the said date being not in dispute, the husband came to know of pre-marriage pregnancy of the respondent and on 07.04.1991/08.04.1991 the Doctor Mahesh Agarwal and Dr. Ramesh Singhal after ultra sound sonography examination gave a clear finding that the respondent Jeevanlata was pregnant of eleven weeks at that time and the petitioner had no relation-ship or access to the respondent before his marriage, there was definitely a fraud of marriage played upon him and, therefore, he could validly claim to avoid such marriage under Section 12(1)(d) of the Act of 1955. 8. 8. On the other hand, learned Counsel appearing on behalf of the respondent supported the Judgment impugned passed by the Court below and submitted that since the evidence which came before the learned District Judge was doubted by the Court and the burden of proof to prove the pre-marital pregnancy beyond reasonable doubt was on the petitioner husband, the Court below cannot be said to have committed any error in rejecting the petition. 9. I have gone through the record of the case, the statements of various persons including the petitioner and the respondent and also the medical evidence on record. 10. The marriage of petitioner Gopal Prasad and respondent Jeevanlata on 05.03.1991 is not in dispute. In her second visit to her in-laws place only, the respondent showed the signs of pregnancy and upon medical verification on 07.04.1991/08.04.1991 she was found to be pregnant of eleven weeks, whereas a period of 4-5 weeks had only passed by that time of her marriage. Initially the petitioner and the respondent accompanied with the mother of petitioner went to Dr. Saroj who also indicated that the respondent was pregnant of three months. Thereupon, the petitioner obtained a second opinion of Dr. Mahesh Agarwal on 07.04.1991 and upon his advice got the ultra sound (sonography) examination performed on the respondent on 08.04.1991 which confirmed that the respondent was pregnant of eleven weeks on that date. Merely because, Dr. Saroj the initial Gyneacologist with whom the petitioner consulted was not produced in the witness box does not render evidence of Dr. Mahesh Agarwal and Dr. Ramesh Singhal un-reliable in any manner. These two independent Doctors and the report of ultra sound sonography examination clearly shows that the respondent was pregnant of eleven weeks on 07.04.1991/08.04.1991. The alleged discrepancy in the date of report of ultra sound (sonography) of the same being of 08.04.1991 whereas the ultra sound sonography examination having been performed on 07.04.1991 also does not render the said report un-reliable. The alleged discrepancy in the date of report of ultra sound (sonography) of the same being of 08.04.1991 whereas the ultra sound sonography examination having been performed on 07.04.1991 also does not render the said report un-reliable. It is also not possible to cast burden on the petitioner husband to prove as to what ultimately happened to that pregnancy specially, when it has come on record that after detection of the said pregnancy the respondent was taken away by her parents/brother to their residence at Malipura and since then the respondent was living with them only and, therefore, the petitioner husband could not naturally ascertain the fate of the pregnancy which according to him was prior to his marriage. Since, the factum of pre-marriage pregnancy has been proved by the petitioner beyond reasonable doubt, his testimony that he did not have any sexual intercourse with the respondent after detection of the said pregnancy is credible and can be relied upon. 11. In view of the aforesaid discussions, it is found that the learned Court below has committed an error in rejecting the petition filed by the petitioner appellant under Section 12(1)(d) of the Act of 1955 for the annulment of marriage and, therefore, the said order is liable to be quashed and set-aside. 12. Accordingly, the present appeal is allowed. The order impugned dated 22.03.1994 is quashed and set-aside and the petition filed by the petitioner under Section 12(1)(d) of the Act of 1955 for annulment of marriage is allowed. The marriage of petitioner-appellant Gopal Prasad with respondent Jeevanlata is annulled as per Section 12(1)(d) of the Act of 1955. Decree be made accordingly. 13. No order as to costs.