R. Basant. J.

Mat. Appeal No.75 of 2008:

(i) Has not the appellant succeeded in proving that his wife/the respondent was pregnant through another when she entered matrimony with him?

(ii) Is he not entitled for a decree of nullity of marriage under Section 19 of the Divorce Act on the ground that his consent for marriage is vitiated by fraud?

(iii) Is it fair, just and reasonable to expect him to produce still better evidence to substantiate his claim?

These questions are raised for our consideration by Sri.S. Sreekumar, the learned senior counsel for the appellant in this appeal.

2. Facts are simple. Parties are Christians by religion. Theirs was a traditional arranged marriage in accordance with the customary religious rites. The betrothal took place on 05-05-2003. The marriage was solemnized on 17-05-2003. They lived together with ample opportunity for physical access after their marriage. It was realised that she was pregnant. Doctor was consulted. Urine test confirmed pregnancy. USG scan was taken on 26-06-2003. It showed that the gestational age of the foetus was 61 days (8 weeks and 5 days) on 26-06-2003. She gave birth to a healthy baby on 06-01-2004. The husband and his relatives entertained a serious doubt whether the respondent/wife had actually conceived in her relationship with the appellant. It allegedly dawned on them that the respondent/wife must have been pregnant through another on the date of her marriage with the appellant.

3. The appellant on 16-01-2004 filed a petition for declaration of nullity under Section 18 of the Divorce Act on the ground that his consent for marriage was vitiated by fraud. He was not aware of the fact that she was pregnant through another on the date of his marriage. He would not have consented if this information were revealed/available to him. He prayed that his marriage may be declared to be null and void.

4. The respondent resisted the prayer for declaration of nullity of marriage. She was not pregnant on the date of her marriage with the appellant. She had conceived only after the solemnization of her marriage with the appellant. The child was conceived in her physical relationship with the appellant. The child born on 06-01-2004 was a premature child and the child was born in valid matrimony. The respondent invoked conclusive presumption under Section 112 of the Evidence Act contend that the child was legitimate. Paternity and legitimacy have to be conclusively presumed, it was contended. Access after the date of marriage having not been disputed and heavy burden on the appellant to dislodge the presumption under Section 112 of the Evidence Act by the only method of proving non-access having not been discharged, the claim for declaration of nullity must fail, it was contended. It was prayed that the petition may be dismissed.

5. Parties went to trial on these contentions. On the side of the appellant/petitioner before the Family Court PWs 1 to 3 were examined and Exts. A1 to A5 were marked. On the side of the respondent, RW 1 was examined and Exts. B1 and B2 were marked. Exts. X1 and X2 were also marked as court Exhibits by consent.

6. Ext. X1 is the D.N.A. test report obtained from the Rajeev Gandhi Centre for Biotechnology at Trivandrum dated 04-01-2005. After receipt of that report, the respondent claimed that a further test must be conducted. When her prayer was rejected by the Family Court, she came to this Court and obtained judgment dated 14-10-2005 in W.P. (C) No. 28841 of 2005 in her favour. Thereafter an Advocate Commissioner was appointed and the parties were taken to Hydrabad to the Central Forensic Science Laboratory. It was thereafter that Ext. X2 DNA report was obtained. Both Exts.X1 and X2 showed that the appellant was not the biological father of the child born to the respondent after marriage.

7. Before this Court, PW 2 was recalled and examined. PWs 4 and 5 were examined and Exts. A6 and A7 issued by PWs 4 and 5 respectively were marked. RW