(1) THIS is a petition under S. 19 of the Divorce Act 1869 (hereinafter referred to as the Act). The marriage between the petitioner and the respondent was solemnised on 13-5-1970 at Vijayawada. They are Indian christians.

(2) THE case of the petitioner is that he had sexual intercourse with the respondent only after the marriage took place. But it transpired that the respondent gave birth to a normal child on 22-10-1970 and that he was not responsible for the birth of the child. It is urged that thei faqt that the respondent was pregnant at the time of the marriage was fraudulently concealed from the knowledge of the petitioner and hence the marriage was a nullity. On the basis of the above allegations the petitioner has filed this petition requesting the Court to declare the marriage between the parties as a nullity.

(3) THE respondent has remained absent in these proceedings and the proceedings have gone on in her absence. In support of his case the petitioner has examined three witnesses including himself.

(4) THE petitioner has sworn that he is an ordinary resident of Bangalore city and that the respondent was residing at Vijayawada along with her parents it the time of marriage which took place on 13-5-1970. Ext. P1 is the marriage certificate issued by the Pastor of the Church at Vijayawada where the marriage took place. He has further stated that he met the respondent only once before the marrage on 12-2-1970 when the engagement ceremony took place, but he had sexual intercourse only after the marriage. The petitioner came to know that a normal child was born to the respondent on 22-104970 and that the child could not have been conceived on account of him. He did not know at the time of marriage that the respondent was pregnant on account of somebody else and the said fact was fraudulently concealed from him. The petitioner further staled that after the marriage the respondent stayed with him at Bangalore only for thirteen days and that she left his residence on 1-6-1970. Exts. P2, P3 and P4 show that the respondent did not rejoin the petitioner till October 1970. He has produced Ext. C2 which is a certificate issued by the hospital authorities showing that the respondent gave birth to a child on 22-10-1970 at Vijayawada.

(5) PW. 2 who is the father of the petitioner has generally corroborated the evidence of the petitioner. He has stated that he had arranged the marriage beween the parities and that the petitioner had no access to the respondent till the marriage took place, dr. R. Satyam, Medical Officer of St. Anne's Hospital, Vijayawada, has been examined on commission in this case. She has stated that one sara Janaki' wife of Michael Raju gave birth to a child on 22-10-1970 at st. Anne's Hospital, Vijayawada, and the delivery was a normal one. Ext. C1 is the chart containing particulars of the condition of the patient and Ext. C2 is the certificate issued by her. Ext. P6 is the original of Ext. C2. Exts. C1 and C2 referred to by this witness show that a normal child weighing five pounds and four ounces was born on 22-10-1970 and the names of the parents of the child agree with the names of the parties to the petition. Ext. P5 dt. 5-11-1970 is a letter written by the father of the respondent stating that the respondent had given birth to a child. From the evidence on record, it is established that the respondent gave birth to a child on 22-10-1970 and that the child was a normal and fully grown up child at the time of the birth. The evidence of the petitioner that he had no sexual intercourse with the respondent till he was married remains uncontradicted. The interval between the first coitus between the petitioner and the respondent and the date of the birth is therefore, 162 days. In Mahendra v. Sushila (l) the Supreme Court has after a review of authorities' held that a normal child weighing about four pounds born after 171 days of the first coitus between the parents must have been conceived prior to the date of the first coitus. In this case the interval is less than 171 days. Hence, it has to be held that the child must have been conceived on account of some person other than the petitioner much earlier to 13-5 -. 1970. The petitioner has sworn that he did not know at the time of marriage that the respondent was pregnant and that the said fact was fraudulently kept back from him and if he had known that fact he would not have married her. This fact again remains uncontroverted. There is no reason to disbelieve the evidence of the petitioner. Hence, I hold that the petitioner did not know at the time of marriage that the respondent was pregnant by some person other than himself and that the said fact was fraudulently kept back from him. I am also satisfied that there is no collusion between the parties. The next question is whether toe petitioner is entitled to the relief prayed for by him. Since the matter was not free from doubt and the respondent was absent and unrepresented, I requested Sri V. Krishnamurthi to assist me as amicus Curiae in this case. I thank him for the assistance rendered by him.

(6) IT is argued on behalf of the petitioner that he is entitled to a decree of nullity of marriage on the following ground appearing in Sec. 19 of the act which reads : nothing in this section shall affect the jurisdiction of the High court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. The contention of Sri K. S. Chcngappa, learned Counsel for the petitioner, is that since the petitioner would not. have given his consent to the marrage if he had been informed about the respondent being pragnant by another person at the time of the marriage, the Court should hold that the consent of the petitioner for the marriage was obtained by fraud. Til support of his case he relied upon a decision of this. Court in George v. Jaya 1965 (2) Mys. L. J. 383. in which Narayana Pai, J. (as he then- was) held that concealment by a woman of the fact that she was pregnant by another man at the time of her marriage with the petitioner constituted such fraud as to entitle the petitioner to seek a decree of nullity of marriage. The learned judge did not follow the decision in Moss v. Moss 1897 P. D. 283, in which it was held that a husband was not entitled to a decree of nullity on proof of the fact that the wife was preganant by somebody else at the time of marriage and the said fact had been concealed from 'the husband. The reason given for not following the said decision is as follows if I may say so with utmost respect, it is a little difficult to understand what legal value there can be for the idea of fraud if it does not operate as an inducing factor in securing the consent of a person: if there was no consent at all but a mere appearance of consent not only fraud but every other circumstance becomes irrelevant. The harshness of the view taken by the President of the Probate division in the said case was later relieved against in England by provision being made for obtaining a decree for nullity of marriage on the ground that the fact of the girt having been pregnant by another person was concealed from her husband subject to the condition that such petition should be presented within one year of the marriage. Similar provision is found made in the Hindu Marriage Act, but the form and the language of the section of the Indian Divorce Act, 1869, continues to be what they had been about a century ago. Nevertheless, for the reasons already stated by me, there appears to be no compiling logic why the opinion of the Probate Division in england expressed in Moss v. MOSS (1897 P. D. 263) should be accepted and applied in India.

(7) WHEN the case of George v. Jaya (2) was cited before me, I could not readily agree with it and it was at that stage I requested Sri V. Krishnamurthi to argue as an amicus curide in this case. The reason for the doubt i entertained at that stage was two-fold; (i) that even in England- the ground that the respondent was at the time of the marriage pregnant by some person other than the petitioner became available only on the enactment of Matrimonial Causes Act, 1937; and (ii) in a comparative piece of legislation in force in India that is the Hindu Marriage Act, the above ground is dealt with as separate and distinct from the ground that the consent of the petitioner for the marriage is obtained by force or fraud

(8) SRI V. Krishnamurthi, however, supported the view taken in George's case (2) on the basis of S. 7 of the Act which reads : subject to the provisions contained in this Act, the High Court and District Courts shall, in all suits and proceedings hereunder, act and give

" relief on principles and rules which in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court of Divorce and Matrimonial Causes in england for the time being acts and gives relief : provided that nothing in this section shall deprive the said courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to' relief is founded."

(9) IT was argued that when the British Parliament enacted Matrimonial causes Act 1937, it only declared that the ground similar to the one relied on in this case was always there and tried to set right a mistake which had crept in by the view expressed in Moss v. Moss (3) and that even in Hindu Marriage Act the said ground is dealt with separately only to remove any doubt that existed -earlier. It was further contended that since the British Courts are now passing decrees of nullity on this ground, indian Courts also should do so in view of S. 7 of the Act. It may be that as it was held by this Court in George's case (2) the ground relied on by the petitioner may constitute fraud entiling him for the relief prayed for but it is difficult to agree that a statute enacted by British Parliament shculd be followed by Indian Courts while deciding cases under the Act. After giving my anxious consideration to the case, I have decided to pass a decree of nullity of marriage of the petitioner with the respondent. Before concluding, I wish to make one observation. There could have been no objection in the year 1869 when British India was being administered as an English Colony to have a statutory provision like S. 7 of the act which required Indian Courts to follow the principles and rules which were being followed for the time being by the Court for Divorce and matrimonial Causes in England. But after India became a Sovereign republic there is no justification for having S. 7 on the statute book. Further even those persons in India who are governed by the Act are no longer blindly following British conventions and British way of life. It is therefore, hoped that early legislative action is taken to remedy the situation. The petition is allowed as prayed for.