Lingannagari Chinna Giri v. L.Kamalamma

THE HON'BLE SRI JUSTI CE C.V. NAGARJUNA REDDY AND THE HON'BLE SMT JUSTI CE T. RAJANI FAMI Y COURT APPEAL No.1 5 of 2 0 1 2 DATED: 0 7 .0 3 .2 0 1 7 Between Lingannagari Chinna Giri.

...APPELLANT And L. Kamalamma.

...RESPONDENT COUNSEL FOR THE APPELLANT: MR. K. SI TA RAM COUNSEL FOR THE RESPONDENTS: MR. G. VENKAT REDDY For MR. K. RATHANGAPANI REDDY THE COURT MADE THE FOLLOW I NG:

JUDGMENT: (per the Hon'ble Sri Justice C.V. Nagarjuna Reddy) This appeal arises out of the order and decree dated 16.09.2011 in D.O.P.No.83 of 2008 on the file of the Judge, Family Court - cum - VI Additional District Judge, Kadapa.

2.

The appellant, who lost his first wife, married the respondent on 26.08.2007 at Sri Lakshmi Venkateswara Swamy Temple, Kadapa as per Hindu rites and customs. The marriage was stated to have been consummated. It is the pleaded case of the appellant that, during the nuptials, looking at the stomach of the respondent, he got suspicion that she was pregnant. The appellant has got the respondent tested by a doctor on 05.12.2007 and following the test, a report was given by the doctor to the effect that the respondent was bearing live fetus in the uterine cavity with gestational age 28-29 weeks. However, on 04.02.2008, the respondent delivered a healthy and matured female child at her parental home. It is the pleaded case of the appellant that, as a child was born within less than six months of marriage, the appellant has stopped living with the respondent and filed the aforementioned OP for dissolution of marriage. 3.

The respondent filed counter affidavit denying the allegations of the appellant and she has taken a plea that even prior to her marriage with the appellant, the latter has developed acquaintance with her and that he is the father of the child.

4.

On the direction of the family Court, the DNA test was conducted, the result of which showed that the appellant is not the father of the child. The family Court, however, dismissed the petition

by relying upon Section 12(1)(d) read with sub-clause (i) of clause (b) of sub-section 2 of Section 12 of the Hindu Marriage Act, 1955 (for short 'the Act'). The family Court held that, from the fact that the appellant continued to live with the respondent till the child was born, it can be presumed that he was not ignorant of the fact that the respondent was pregnant at the time of marriage. 5.

Mr. K. Sita Ram, learned counsel for the appellant, submitted that the family Court has committed a serious error in presuming that the appellant was aware of the pregnancy of the respondent at the time of the marriage merely by reason of his living with the respondent even after she was found to be three months' pregnant at the time of marriage. He has further submitted that the plea of the respondent that the child was born through the appellant was found to be false through the DNA test and that, as a matter of fact, the appellant continued to live with the respondent as a humanitarian gesture instead of driving her away from his house, which should not have been used against him in attributing knowledge of pregnancy of the respondent.

6.

Mr. G. Venkat Reddy, learned counsel for the respondent, tried to sustain the findings of family Court. 7.

We have carefully considered the submissions of both the learned counsel and perused the record.

8.

The fact that the respondent was pregnant at the time of the marriage by three months is proved beyond any doubt. Section 12 of the Act envisages different types of voidable marriages. One such

marriage is that if the respondent was at the time of the marriage pregnant by a person other than the petitioner, such marriage becomes voidable at the option of the latter. It is the pleaded case of the appellant that he was ignorant of pregnancy of the respondent at the time of the marriage. From the unequivocal language of sub-clause (i) of clause (b) of sub-section 2 of Section 12 of the Act, it is evident that the initial burden lies on the appellant to satisfy that he was ignorant of the pregnancy. Since the fact to be proven pertains to knowledge, the appellant has discharged the burden by pleading that he was ignorant. Therefore, the onus shifted to the respondent to prove that the appellant had knowledge of pregnancy. No evidence was adduced by the respondent to prove such knowledge. On the contrary, she comes out with the plea that she had acquaintance with the appellant prior to the marriage and the child was born through him only. This plea was falsified by the DNA test. 9.

The only ground on which the family Court has presumed knowledge of pregnancy on the part of the appellant is that he continued to lead conjugal life with the respondent even after she was found to be pregnant after the test was conducted. This conduct of the appellant by itself cannot be a conclusive proof of knowledge. As rightly submitted by the learned counsel for the appellant, the mere fact of living with the respondent till the delivery of child has taken place, cannot by itself be a ground to presume knowledge of pregnancy.

10.

The reaction in such situations varies from person to person. If due to humanitarian consideration, the appellant has allowed the

respondent to live with him till she delivered the child, such conduct cannot be put against him and knowledge could not be presumed therefrom. On a careful appreciation of evidence on record and in the facts and circumstances of the case, we are of the opinion that the appellant had no knowledge of pregnancy of the respondent at the time of the marriage and therefore, the marriage, being voidable at the option of the appellant, the same is liable to be declared as invalid. 11.

As regards the permanent alimony, the appellant has agreed to pay a sum of Rs.2,000/ - per month to the respondent from out of his monthly pension during his lifetime. The appellant further agreed that such payment is made through bank deposit to be credited to the account of the respondent on or before 5th of every month. The counsel for the respondent has undertaken to furnish the account number of the respondent to the counsel for the appellant. Such monthly maintenance should be paid to the respondent commencing from the month of March 2017.

The family court appeal is accordingly allowed subject to the aforementioned condition.

As a sequel to the disposal of the appeal, FCAMP.No.20 of 2016 shall stand disposed of as infructuous.

_____________________ C.V. NAGARJUNA REDDY, J __________ T. RAJANI, J March 7, 2017 DSK