PATNA: The Patna high court has set aside a divorce decree granted by a Motihari family court, whereby the marriage of a woman was nullified on ground of her alleged “premarital pregnancy”.
The family court’s verdict was based on an ultrasound diagnosis, conducted six weeks after the marriage of the woman, which had affirmed her pregnancy and determined the age of fetus as about eight weeks. The high court found the findings of the family court as illegal as the woman’s husband had not denied any cohabitation with her.
A division bench of Justice P B Bajanthri and Jitendra Kumar, while allowing an appeal filed by the aggrieved woman, delivered the judgement on September 15. However, the judgment was uploaded to the website of the court on Tuesday.
The two judges gave benefit of the presumption in Indian law regarding legitimacy of child, in favour of wife. Section 112 of the Indian Evidence Act lays down a presumption of legitimacy of a child, born during the continuation of a valid marriage or within 280 days after dissolution of marriage if mother remains unmarried. However, this presumption can be held wrong if it is proved that the couple had no cohabitation either during married life or during the said gestation period of 280 days.
The marriage of the woman was solemnized under Hindu rituals on April 19, 2012, and the next day she joined her husband in matrimonial home. The husband and in-laws of woman doubted that she had become pregnant prior to her marriage. Upon ultrasound test conducted on June 8, 2012, her pregnancy was affirmed. This became the reason for filing divorce petition by the husband which was allowed in April 2019 by the family court. The woman had given birth to a girl child on January 22, 2013.
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