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2019 Supreme(Kar) 1881
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
P.B. BAJANTHRI, NATARAJ RANGASWAMY, JJ.
SMT. ROOPASHRI @ MUTAWWA W/O KRISHNAGOUDA SANNAMANI - APPELLANT
Versus
SRI. KRISHNAGOUDA S/O HANAMAPPA SANNAMANI - RESPONDENT
MFA No.100612 of 2014
Decided On : 19-12-2019
For the Appellant : SRI.SRINAND A.PACHHAPURE, ADV.
For the Respondent: SRI.MRUTYUNJAYA TATA BANGI, ADV.
Headnote:
Evidence Act – Sections 112, 3 – Hindu Marriage Act, 1955 – Section 12 – Illicit Relationship – Whether facts/evidence available on record is sufficient to hold that wife was pregnant by some person other than her husband – Whether husband indulged in sexual intercourse with his wife after he discovered that she was pregnant by some other person – Whether husband has filed petition for annulment within one year from date of marriage – Whether husband was aware that his wife was pregnant by some other person at time of their marriage – Whether findings recorded by Trial Court are just and probable and whether evidence on record was sufficient to disprove paternity of twins – Whether finding of Trial Court calls for interference – Held, Trial Court has gone in detail and considered evidence on record and also looked into legality and tenacity of evidence of wife, opinion of Centre for DNA Fingerprinting and Diagnostics, Hyderabad and has verified position of law and also looked into aspects of DNA verification and has rightly come to conclusion that wife-appellant herein was pregnant by some other person at time of her marriage. – Trial Court therefore, rightly allowed petition filed by husband and declared marriage between appellant and respondent herein as a nullity and court therefore, restrict and upheld Judgment and Order of Family Court only to extent of nullifying marriage. – Court affirm that findings of Family Court in MC are based on sound reasoning and on a thorough verification of oral and documentary evidence and therefore does not call for any interference. – Findings recorded by Family Court in MC and finding recorded by us in this appeal are relevant only for limited purpose of deciding proceedings before us and shall not bind those who are not parties to this proceeding. – Section 112 is based on well known maxim pater rest quem nuptiae demnstant (he is father whom marriage indicates). – Presumption of legitimacy is this, that a child born of married woman is deemed to be legitimate, it throws on person who is interested in making out illegitimacy, whole burden of proving it. – Law presumes both that a marriage ceremony is valid, and that every person is legitimate. – Marriage or filiatino (parentage) may be presumed, law in general presuming against vice and immorality. – In view of categorical evidence of wife that she did not have any physical relationship with her husband, prior to marriage, presumption available under Section 112 of Evidence Act stood substantially rebutted. – Even if report of DNA Finger Printing and Diagnostic, Centre, Hyderabad is excluded, oral testimony of wife makes it all more evident that she was pregnant by a person other than husband and therefore, presumption stood sufficiently rebutted. – Appeal Dismissed
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. 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
