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Report No. 59

6.5. Section 12(1)(d), H.M.A. and premarital pregnancy.-

Under section 12(1)(d) of the Hindu Marriage Act, subject to certain conditions, the pre-marital pregnancy of the wife is a ground on which the marriage could be avoided. The Act, however, does not provide for any such relief to the wife of the male with whom the pregnant with had sexual relations. It was suggested that if the rationale of the present provision entitling the innocent husband (of the pregnant wife) to relief is that mutual love and affection cannot possibly survive in such circumstances by reason of the grave fraud of the one party, then the same rationale applies in favour of the innocent wife of the male who has been guilty of sexual relations with another woman leading to that woman's pregnancy.

6.6. As Morse J. observed:-

"The essence of the marriage contract is wanting when the woman, at the time of its consummation, in bearing in her womb, knowingly, the fruit of her illicit intercourse will a stranger; and the result is the same whether the husband is ignorant of her pregnancy, and believes her chaste, or is cognizant of her condition, but has been led to believe that the child is his1."

This reasoning, it was stated, should apply against the father of the child.

1. Sissung v. Sissung, 65 Mich 168: 31 NW 770 (773) (USA), cited in Morres v. Morres, (1940) 13A 2d 603; Goldstein Family & the Law, (1964), p. 652.

6.7. We are not in favour of any such change. We think that a distinction can be made between the pregnant woman and her paramour. The former is burdening her husband with a child. The latter does not burden the wife with a child.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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