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2019 DIGILAW 2333 (KAR)

ROOPASHRI @ MUTAWWA W/O KRISHNAGOUDA SANNAMANI v. KRISHNAGOUDA S/O HANAMAPPA SANNAMANI

2019-12-19

NATARAJ RANGASWAMY, P.B.BAJANTHRI

body2019
JUDGMENT : 1. This Miscellaneous First Appeal is filed assailing the Order dated 18.01.2014 passed by the Principal Senior Civil Judge and JMFC, Jamakhandi whereby, the petition filed by the husband in M.C.No.03/2006 under Section 12(1)(d) of the Hindu Marriage Act, 1955 was allowed. 2. For the sake of easy and better understanding, in this Order, the parties are referred to as husband and wife. This appeal is filed by the wife who was respondent in M.C.No.3/2006. 3. The husband filed M.C.No.3/2006 before the Principal Senior Civil Judge & JMFC, Jamakhandi under Section 12(1)(d) of the Hindu Marriage Act, 1955, essentially contending that Roopashri was given in marriage to him on 13.02.2005 and their marriage was solemnized at Basveshwar Temple Kadapatti. He contended that his wife came to the matrimonial home on 14.02.2005 on which day she is stated to have informed him that she had her menstrual period about 8 days prior to her arrival at the matrimonial home and that again she had her periods on 15.02.2005. It is stated that she went to her parents house on 17.02.2005 to observe “sacred month” and she stayed in her parents house till 27.05.2005. During the course of her stay at her parents house, she underwent medical checkup at Government Hospital on 25.05.2005 and it was found that she had conceived and the doctor who examined her was of the opinion that the pregnancy was 22 weeks old. Thereafter, she delivered twin baby boys on 20.08.2005. He therefore contended that after the date of marriage within six months and five days, his wife had delivered and therefore, he contended that his wife was pregnant by some person other than him, which fact was not known to him and that the wife and her family members had concealed this fact from the husband and his family members. He also alleged that the family members of his wife avoided to give proper explanation and started giving evasive replies. He then requested his wife to undergo medical test for confirmation of the paternity of the children to which she never consented. On the other hand, her parents requested the husband and his family members to settle the issue amicably. He is stated to have issued a notice on 08.12.2005 calling upon his wife to undergo DNA test for confirmation of the paternity of the children. On the other hand, her parents requested the husband and his family members to settle the issue amicably. He is stated to have issued a notice on 08.12.2005 calling upon his wife to undergo DNA test for confirmation of the paternity of the children. He also offered to undergo medical test and cooperate in ascertaining the truth. Though notice was received by his wife, she did not choose to reply. 4. He also contended that he had no occasion to have intercourse with his wife after he discovered the fact that his wife was pregnant by some other person. The wife is stated to have lodged a complaint with the police against the husband and his family members. The husband therefore sought for a declaration that the marriage dated 13.02.2005 as a nullity and that the children born to his wife on 20.08.2005 were not fathered by him. 5. The wife entered appearance and claimed that she and her husband were related and that her mother and his father were brother and sister. She contended that their engagement took place three years prior to the date of their marriage and that her husband was visiting her parents house very often and both of them were in love prior to their marriage. She therefore claimed that “it does not lie in the mouth of the petitioner that respondent is pregnant by some other person”. 6. She claimed that from the time of her pregnancy till delivery, she lived and co-habited with her husband. She claimed that her husband had the knowledge about the pregnancy and paternity of the twins. She further contended that her father-in-law and her husband got her admitted in a private hospital and that her father-in-law consented for performing surgery on her if required. She contended that her husband cohabited during the pregnancy and he neither disputed the paternity of the twins nor alleged that he was ignorant of the pregnancy. She therefore claimed that her husband by cohabiting with her, had deemed to have condoned. She further contended that the biological features of the twins resembled her husband and that the children born after 210 days cannot be considered as illegitimate. She also alleged that family members of her husband attended the naming ceremony of the twins. She therefore claimed that her husband by cohabiting with her, had deemed to have condoned. She further contended that the biological features of the twins resembled her husband and that the children born after 210 days cannot be considered as illegitimate. She also alleged that family members of her husband attended the naming ceremony of the twins. At paragraph 13 of her objection, she contended that her husband could not deny the sexual intercourse that they had even after discovery of the said pregnancy, presumably to invoke the defence available against invocation of Section 12(1)(d) of the Hindu Marriage Act. Therefore, she sought for dismissal of the petition and also contended that relief No.2 cannot be granted since twins born to her were not parties to the proceedings. 7. The husband was examined as P.W.1. A doctor by name Narayan who performed the caesarian on the wife was examined as P.W.2. Dr.Jayashree M.Emmi who had examined the wife on 25.05.2005 was examined as P.W.3 and Dr.Sudheer, a pediatrician who issued Exs.P3(2 & 3) was examined as P.W.4 and Exs.P1 to P17 were marked. On an application filed by the husband, the trial Court had directed him and his wife to undergo DNA test at Centre for DNA Fingerprinting and Diagnostics, Hyderabad. The report of the Center was marked as Ex.C1, C1(A) and C1(A-1 to 3), Ex.C1(B)to C1(B-4), Ex.C1(C) to Ex.C1(C-4), Ex.C1(D) to Ex.C1(D-3). 8. The wife was examined as R.W.1 and her father was examined as R.W.2 and a resident of the village was examined as R.W.3 and Exs.R1 to R6 were marked. 9. The trial Court after considering the pleadings on record framed following issues. i) Whether the petitioner proves that the respondent was, at the time of marriage, pregnant by some person other than the petitioner? ii) Whether the petitioner further proves that he was, at the time of marriage, ignorant of the fact of pregnancy alleged? iii) Whether the petitioner further proves that the martial intercourse is not taken place with his consent after discovery of the fact of pregnancy alleged? iv) Whether the petitioner is entitled to the relief claimed? v) What order? 10. ii) Whether the petitioner further proves that he was, at the time of marriage, ignorant of the fact of pregnancy alleged? iii) Whether the petitioner further proves that the martial intercourse is not taken place with his consent after discovery of the fact of pregnancy alleged? iv) Whether the petitioner is entitled to the relief claimed? v) What order? 10. The trial Court after considering the oral and documentary evidence, relied upon the Judgment of the Hon’ble Apex Court in the case of Mahendra Manilal Nanavati Vs Sushila Mahendra Nanavati reported in AIR 1965 Supreme Court 364 in which the Apex Court discussed finer aspects of obstetrics and child birth/paternity and taking cue from the findings recorded therein, the Trial Court held that the wife must have been pregnant by 28.12.2004. In order to arrive at such a conclusion, the Trial Court took into consideration the fact that the usual period of gestation from the date of the first coitus is between 265 and 270 days and delivery is expected in about 280 days. The Trial Court considered the fact that the twins were born on 20.08.2005 and hypothetically deducted 266 days which is the full term of gestation having regard to the fact that the twins were fully hale and healthy and held that the wife could have been pregnant on 28.11.2004. The Trial Court further went a step ahead and held that even if the twins were born one month prior to normal period of gestation, then also the probable date of her pregnancy would be 28.12.2004. The Trial Court noted the date of marriage was 13.02.2005 and the date of delivery was 20.08.2005 and held that the children could not be born within 188 days from the date of marriage. The Trial Court relied upon the evidence of PW-3 who had examined the wife on 25.05.2005 and found that she was pregnant by 22 weeks or 154 days. The Trial Court counted back 154 days from 25-05-2005 and held that she must have been pregnant by 23.12.2004. The trial Court in order to rule out any erroneous judgment, relied upon the report submitted by the Center for DNA finger printing and Diagnostics, Hyderabad and held that the wife was pregnant by a person other than her husband. The Trial Court counted back 154 days from 25-05-2005 and held that she must have been pregnant by 23.12.2004. The trial Court in order to rule out any erroneous judgment, relied upon the report submitted by the Center for DNA finger printing and Diagnostics, Hyderabad and held that the wife was pregnant by a person other than her husband. The Trial Court also relied upon the deposition of the wife in Crl.Misc.No.364/2006 (Ex.P-13) wherein she had deposed that she was two months pregnant at the time of her marriage. The Trial Court relied upon this evidence of the wife and in terms of the impugned Judgment and Order dated 18.01.2014, allowed the petition and nullified the marriage that was solemnized on 13.02.2005 and further declared that the children born to the wife on 20.08.2005 were not fathered by her husband. 11. The wife has filed this appeal challenging the aforesaid Judgment and order. 12. Heard the learned counsel for the wife and husband. Perused the pleadings, oral and documentary evidence as well as DNA report of the Centre for DNA Fingerprinting and Diagnostics, Hyderabad. 13. The contentions of the wife in this appeal are: (i) Her husband was visiting her prior to the marriage and after their engagement. (ii) That the husband was aware of the fact that she was pregnant at the time of marriage and that he continued to cohabit with her. (iii) That under Section 112 of the Evidence Act, there was a presumption regarding the paternity of the children born out of a valid marriage. (iv) That the DNA report could not be considered as a valid piece of evidence, more so when the wife had filed her objection to the report which was not considered by the Trial Court. (v) That the Trial Court had failed to consider IA No.19 that was filed by her for payment of arrears of maintenance and IA No.20 for stopping further proceedings in MC No.3/2006 until arrears of maintenance was paid. 14. Having regard to the serious consequences that has resulted in as against the wife and her children, in order to tread carefully, this Court has framed the following points for consideration: 1. Whether the facts/evidence available on record is sufficient to hold that the wife was pregnant by some person other than her husband? 2. 14. Having regard to the serious consequences that has resulted in as against the wife and her children, in order to tread carefully, this Court has framed the following points for consideration: 1. Whether the facts/evidence available on record is sufficient to hold that the wife was pregnant by some person other than her husband? 2. Whether the husband indulged in sexual intercourse with his wife after he discovered that she was pregnant by some other person? 3. Whether the husband has filed the petition for annulment within one year from the date of marriage? 4. Whether the husband was aware that his wife was pregnant by some other person at the time of their marriage? 5. Whether the findings recorded by the Trial Court are just and probable and whether the evidence on record was sufficient to disprove the paternity of the twins? 6. Whether the finding of the Trial Court calls for interference? 15. All the above points are taken for consideration together. 16. In the petition filed for divorce, the husband has narrated in detail the events that led to the filing of the petition. In para 6 of the petition, it is claimed “This fact was knowingly concealed by the opponent and his family members at the time of marriage with the petitioner. So also, in view of the facts stated above, the petitioner had no occasion to have intercourse with the opponent after the discovery of the above said facts”. 17. In reply to this statement, the wife contended that “from the time of pregnancy till delivery, the respondent-(wife) lived and cohabited with the petitioner (husband) and he had knowledge about pregnancy and paternity of the twin babies and father of the petitioner and petitioner-(husband) got admitted in private hospital and wherein consent for surgery was given by the father of the petitioner and petitioner also.” 18. Thus, it is evident that while the husband claimed that his wife was pregnant by some other person, before the marriage, the wife claimed that she was impregnated by her husband. She therefore subtly claimed that he used to visit her before marriage but never said that he had physical access to her before marriage and or that he used to have sexual intercourse with her.. She therefore subtly claimed that he used to visit her before marriage but never said that he had physical access to her before marriage and or that he used to have sexual intercourse with her.. In fact P.W.2, the father merely said that the husband used to visit his house but he too did not whisper about any access before the marriage. It is relevant to note that the husband and wife were closely related and it not unnatural that the husband visited his paternal uncle. 19. Section 12(1)(d) of the Hindu Marriage Act reads as under: “12. Voidable marriages.-(1) Any marriage solemnized, whether before or after the commencement of the Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely- (a) xxxxx (b) xxxxx (c) xxxxx (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.” 20. The facts which are not in dispute are that: a) The husband married the daughter of his paternal aunt. b) The betrothal between them was on 20.05.2002. c) Their marriage was held on 13.02.2005. d) The wife delivered twins on 20.08.2005. e) The twins were hale and healthy and they weighed 2.3 kg and 2.2 kg at the time of birth. f) That the father-in-law of the wife had signed consent form for performing any procedure on her when she was admitted at the hospital for delivery. g) That the respondent had filed Crl.Misc.22/2006 and Crl.Misc.364/2006 against the petitioner and his family members. 21. The evidence of R.W.1 discloses that she was not pregnant at the time of her marriage. Though she stated in her objection statement and also in her evidence that her husband used to visit her very often before the marriage, neither did she claim nor can we assume that the husband had access to his wife to procreate, since she has categorically stated that, she was not pregnant at the time of marriage. She further stated that (Other Language) This categorical statement of the wife made on oath is sufficient to hold that the husband did not know that his wife was pregnant at the time of marriage. She further stated that (Other Language) This categorical statement of the wife made on oath is sufficient to hold that the husband did not know that his wife was pregnant at the time of marriage. Insofar as, the assertion of the wife that her husband continued to cohabit till her delivery, it is stated in the petition that the wife reached her matrimonial home on 14.02.2005 and that she had her menstrual cycle on 14.02.2005 and later went to her parents house on 17.02.2005 and remained there till 27.05.2005 during which time she was examined at Government Hospital Bilagi on 25.05.2005. In response to this, the respondent-wife casually denied the same but did not disclose when she had her menstrual cycle after her marriage. The wife had stated in Ex.P.13 that (Other Language) This statement of the wife in a judicial proceeding makes it clear that she returned to her parents house 2-3 days after 14-2-2005. There is no evidence on record to show that she returned to the marital home thereafter. On the contrary evidence of P.W-3 discloses that the respondent-wife had visited the Government Hospital, Bilagi for check up and it was found that the respondent-wife was pregnant by about 22 weeks. It is to be noted that the wife was residing at Bisanal village in Bilagi Taluka while the husband was residing at Maigur in Jamakhandi Taluka. It is clear that the wife was residing with her parents in Bilagi when she was checked at a hospital in Bilagi and was found to be pregnant. Thus, the contention of the husband that the wife left the matrimonial home on 17.02.2005 and remained at her parents place till 27.05.2005 is probable and believable. There is no evidence of either RW-1, RW-2 or RW-3 that the husband used to visit his wife at her mother’s place. However, when PW-1 was cross examined, there is not even a suggestion that the husband indulged in sexual intercourse from the date of marriage till the date of delivery as alleged by her in her statement of objections. These discussions makes it clear and beyond doubt that the husband did not have any intercourse with his wife. Thus, the wife is not entitled to the defences that are available to turn down a petition under Section 12(1)(d) of the Hindu Marriage Act. 22. These discussions makes it clear and beyond doubt that the husband did not have any intercourse with his wife. Thus, the wife is not entitled to the defences that are available to turn down a petition under Section 12(1)(d) of the Hindu Marriage Act. 22. The Apex Court in the case reported in 1979 (3) SCC 782 has held “in our view, therefore, the High Court was clearly in error in relying upon passages occurring in text books of medical experts dealing with exceptional cases and rejecting the positive and clear evidence that was led by the appellant in regard to the pregnancy of the respondent and the delivery which took place on 20.05.1963. In the face of the positive and clear evidence that was led by the appellant in the case, we are of the view that the High Court’s finding were based on conjectures and surmises and the trial Court was right in coming to the conclusion that the appellant had satisfactorily discharged the burden which lay upon him”. 23. The Apex Court in the case of Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati reported in AIR 1965 SC 364 which is till date an authority as to the appreciation of conflicting evidence of doctors regarding the delivery of a child after the first coitus between husband and wife, held “where the child was born after 171 days of the first coitus between the husband and wife and the delivery was normal, normally the Court should hold that the child was not a child born after 171 days gestation and was not the child of the husband, unless there is evidence which should justify the Court in holding otherwise.” 24. In the case on hand, the RW-1 has categorically stated that there was no physical relationship between the petitioner and the respondent prior to marriage and that she was not pregnant at the time of marriage. However, PW-3 has categorically stated when the wife was examined on 25.05.2005, the respondent was 22 weeks pregnant. Therefore the respondent must have been pregnant by 23.12.2004. This is fortified from Ex.P-3{3}. Ex.P3[3] discloses that an ultra sonography was advised for confirmation. The ultra sonography report would have been the best document that would disclose the date of pregnancy, but she has withheld it from the Court. Therefore the respondent must have been pregnant by 23.12.2004. This is fortified from Ex.P-3{3}. Ex.P3[3] discloses that an ultra sonography was advised for confirmation. The ultra sonography report would have been the best document that would disclose the date of pregnancy, but she has withheld it from the Court. It is found that later the respondent-wife delivered twins on 20.08.2005 after 32 to 33 weeks gestation. P.W.-4 who is a pediatrician has deposed that the twins were delivered after gestation of 32 to 34 weeks. Thus, it is clear that the wife was pregnant during December-2004. The events such as the husband and wife being closely related and the way in which the wife returned to her parents house soon after marriage, she being treated at Bilagi Taluk, goes to show that there was an apparent attempt to conceal the pregnancy. 25. It is also to be noticed that the husband issued a notice prior to institution of the present proceedings calling upon his wife to undergo a DNA test, the wife for the reasons unknown neither replied to the notice nor consented to the procedure, which compels us to draw an adverse inference against the wife. As a matter of fact, in the proceedings before the trial Court, the application of the husband for DNA test was stiffly resisted by the wife, again pointing to the fact that the wife was apprehensive about a fact that was only within her knowledge. 26. Co-incidentally, the report of the Centre for DNA Finger Printing and Diagnostics (Ex.C-1), disclosed that the DNA of the twins do not match with the DNA of the husband. We are conscious of the relevancy of opinions of the experts as provided under Section 45 of the Indian Evidence Act. It is no doubt true that the respondent-wife has filed objections to the DNA report and in the course of cross-examination of P.W.1, she has blindly suggested that a relative of the petitioner-husband was working at the DNA Finger Printing and Diagnostic, Centre, Hyderabad, but did not disclose the name of the person. A perusal of the objections filed by the wife to the DNA shows that she had not raised any tenable ground to disbelieve the report. A perusal of the report at Ex.C1 discloses that the expert was willing to appear before the Trial Court to give his evidence. A perusal of the objections filed by the wife to the DNA shows that she had not raised any tenable ground to disbelieve the report. A perusal of the report at Ex.C1 discloses that the expert was willing to appear before the Trial Court to give his evidence. Despite this, the wife never even attempted to summon the expert to face cross-examination. On the contrary, the cross-examination of R.W.1 indicates that the wife and the twins went to Hyderabad and gave the blood sample and the husband also gave his blood sample. There is nothing amiss in the report and there is no reason why this report should not be considered as an additional aid to determine the dispute in controversy. 27. The above discussions therefore make it clear that the respondent-wife was pregnant before the marriage and in view of categorical statement made by the respondent-wife that there was no physical relationship between her and her husband before marriage, it has to be held that the wife was pregnant by a person other than her husband. Further, there is ample evidence to show that the husband did not have any knowledge about pregnancy of his wife at the time of marriage and that he did not continue to co-habit with his wife despite knowing her pregnancy. Therefore, it can be definitely held that the husband has successfully proved the ground for annulment of the marriage under section 12(1)(d) of Hindu Marriage Act, and he has filed the petition for such annulment within one year from the date of marriage. 28. The respondent-wife attempted to contend that Under Section 112 of the Evidence Act, there is a presumption about the paternity of the children born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution. In a vain attempt to leverage Section 112, the wife contended that her husband used to frequently, visit her. This is also stated by PW2 but none of them including wife, ever said either in the pleading or in their evidence that the husband had a physical relationship with his wife prior to marriage. The reluctance on the part of the wife is understandable as she was already pregnant prior to her marriage and could not possibly accuse her husband for being responsible for it. 29. The reluctance on the part of the wife is understandable as she was already pregnant prior to her marriage and could not possibly accuse her husband for being responsible for it. 29. The Apex Court in the case of Goutam Kundu Vs State of West Bengal and Another reported in (1993) 3 SCC 418 has held that, “Section 112 is based on well known maxim pater rest quem nuptiae demnstant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiatino (parentage) may be presumed, the law in general presuming against vice and immorality. 30. This presumption as held by the Apex Court is rebuttable but the degree of proof is not a balance of probabilities but strong preponderance of evidence. As discussed above, the oral and documentary evidence and the evidence of doctors who treated the wife, point to a certain fact that the wife was pregnant prior to her marriage. In view of the categorical evidence of wife that she did not have any physical relationship with her husband, prior to the marriage, the presumption available under Section 112 of the Evidence Act stood substantially rebutted. Even if the report of the DNA Finger Printing and Diagnostic, Centre, Hyderabad is excluded, the oral testimony of the wife makes it all the more evident that she was pregnant by a person other than the husband and therefore, the presumption stood sufficiently rebutted. 31. Section 3 of the Evidence Act defines the word “proved” and is extracted below: “A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”. The evidence of R.W.1 discloses the following facts. Other Language 32. The wife had examined her father who stated as follows: Other Language 33. The evidence of R.W.1 discloses the following facts. Other Language 32. The wife had examined her father who stated as follows: Other Language 33. In order to prove the assertion that both had prior physical relationship, wife examined R.W.3 who stated that the husband used to visit the house of his wife on and of and used to lodge there. He deposed that when he asked the husband as to why he was visiting often, the husband is stated to have told that he was visiting the house owing to old relationship. In the course of cross-examination, R.W.3 stated as follows: Other Language 34. The evidence of R.W.3 does not instill confidence and cannot be relied upon to believe that the husband and his wife had any physical relationship prior to the marriage since the wife had categorically stated that there was no physical relationship prior to the marriage. Thus, statement of R.W.3 at best be described as hearsay and nothing else. 35. The documentary evidence placed on record speaks of the fact that husband and wife were engaged on 20.05.2002 (Ex.R1). The marriage of the petitioner with respondent was solemnized on 13.02.2005 (Ex.P2). The respondent was first examined on 25.05.2005 by P.W.3 who gave a certificate stating that the uterus size was 22 weeks and suspected twin pregnancy (Ex.P3(3)). As per Ex.P10, the respondent was examined on 25.05.2005 in the OPD Section and the wife delivered on 20.08.2005. 36. The aforesaid evidence has compelled us to conclude that the husband has proved the fact that the wife was pregnant prior to her marriage. 37. The trial Court has gone in detail and considered the evidence on record and also looked into the legality and tenacity of the evidence of the wife, opinion of the Centre for DNA Fingerprinting and Diagnostics, Hyderabad and has verified the position of law and also looked into the aspects of DNA verification and has rightly come to the conclusion that the wife-appellant herein was pregnant by some other person at the time of her marriage. The trial Court therefore, rightly allowed the petition filed by the husband and declared the marriage between appellant and respondent herein as a nullity and we therefore, restrict and upheld the Judgment and Order of the Family Court only to the extent of nullifying the marriage. 38. The trial Court therefore, rightly allowed the petition filed by the husband and declared the marriage between appellant and respondent herein as a nullity and we therefore, restrict and upheld the Judgment and Order of the Family Court only to the extent of nullifying the marriage. 38. We therefore affirm that the findings of the Family Court in MC No.03/2006 are based on sound reasoning and on a thorough verification of the oral and documentary evidence and therefore does not call for any interference. However, the findings recorded by the Family Court in MC No.03/2006 and the finding recorded by us in this appeal are relevant only for the limited purpose of deciding the proceedings before us and shall not bind those who are not parties to this proceeding. 39. Hence, this appeal filed by the wife/appellant fails and the same is hereby dismissed. No order as to costs.