Section 12(1)(d) and Section 12(2)(b) – Nullity of Marriage – Ground of Concealed Pregnancy Per Alium – Onus and Burden of Proof – Statutory Preconditions for Relief. The appellant-husband filed a petition under Section 12(1)(d) read with Section 12(2)(b) of the Hindu Marriage Act, 1955, seeking annulment of his marriage with the respondent-wife on the ground that she was pregnant by some person other than him at the time of the marriage. The trial court (Principal City Civil Judge, Madras) dismissed the petition, finding that the husband failed to satisfy the statutory requirements. On appeal, the husband contended that once pregnancy per alium at the time of marriage is established, the burden shifts to the wife to show that the husband was aware of the facts or that marital intercourse occurred after discovery of the pregnancy. Held, dismissing the appeal:

advocatemmmohan

MADRAS HIGH COURT

AIR 1960 MADRAS 216, 1973 MADLW 224

BENCH: Anantanarayanan, J.

DATE OF JUDGMENT: September 18, 1959

HEADNOTE

Hindu Marriage Act, 1955 (Act 25 of 1955), Section 12(1)(d) and Section 12(2)(b) – Nullity of Marriage – Ground of Concealed Pregnancy Per Alium – Onus and Burden of Proof – Statutory Preconditions for Relief.

The appellant-husband filed a petition under Section 12(1)(d) read with Section 12(2)(b) of the Hindu Marriage Act, 1955, seeking annulment of his marriage with the respondent-wife on the ground that she was pregnant by some person other than him at the time of the marriage. The trial court (Principal City Civil Judge, Madras) dismissed the petition, finding that the husband failed to satisfy the statutory requirements. On appeal, the husband contended that once pregnancy per alium at the time of marriage is established, the burden shifts to the wife to show that the husband was aware of the facts or that marital intercourse occurred after discovery of the pregnancy.

Held, dismissing the appeal:

¶ 1. Statutory Scheme and Analogy with English Law:

Section 12(1)(d) read with Section 12(2)(b) of the Hindu Marriage Act, 1955, is modeled on Section 8(1)(d) of the Matrimonial Causes Act, 1950 (United Kingdom). Concealed pregnancy per alium at the time of marriage constitutes a species of fraud upon the innocent spouse, for which the statute provides a remedy of annulment subject to strict statutory qualifications.

¶ 2. Burden of Proof Rests Entirely on the Petitioner:

There is no burden or onus of proof on the respondent-wife to establish any of the exceptions or negative conditions under Section 12(2)(b). The burden rests entirely and affirmatively on the petitioner-husband to satisfy the Court that all three statutory conditions are cumulatively met before a decree of nullity can be granted:

1. That the respondent was pregnant by some person other than the petitioner at the time of the marriage;
   
   
2. That the petitioner was ignorant of this fact at the time of the marriage; and
   
   
3. That marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
   
   

¶ 3. Marital Intercourse after Knowledge / Reason to Infer:

If a husband continues to have marital intercourse after acquiring knowledge of facts from which any reasonable person would infer that his wife was pregnant by another man at the time of marriage, he is disentitled from seeking annulment under Section 12(1)(d).

(Smith v. Smith, [1948] P. 77, referred to).