Is Pre- Marriage Pregnancy good for our society

(i) Generally

Virginity is the hall mark for the marriage and as such, if that is lost, obviously, a man is given reason to repudiate the marriage, if so desired. As such, if wife is already carrying a child of someone else, the Parsi Law prescribes Divorce.

The premarriage pregnancy is called as pregnancy “pre alim.” It is worth noticing that the ground is premarriage pregnancy and not premarriage ‘unchastely.’ Therefore, even if a woman is unchaste and had even delivered an illegitimate child, the marriage cannot be avoided because of chastity. It was held that unchastely is not the ground of annulment of marriage.

(ii) Requirements under the Act

The Parsi Act under Section 32(c) lays down that:

1. Wife was pregnant at the time of marriage by some other person than her Husband.

2. The husband was not aware of pre-alim pregnancy.

3. The suit must be filed within two years from the date of marriage.

4. No marital intercourse should have taken place after knowing that wife was pregnant by someone else.

It is true that otherwise also sexual intercourse during pregnancy is prohibited. However, possibility is not ruled out that husband may force his wife to indulge into sexual intercourse out of jealousy, revenge or causing harm to her and/or to her child in womb. But the law very vigilantly prohibits it. The prohibition is well intended to protect the woman and her child.

Despite this prohibition, if a Husband takes courage to have marital intercourse, he is deprived of his remedy. But whether a Husband had sex after knowing that wife was pregnant by someone else or not is a pure ‘Question of Fact.’ A Question of Fact always has to be proved in accordance with the provisions of Evidence Act and Civil Procedure Code. Therefore, discussion on proof of ‘Question of Fact’ can be read in those Books and the same is not undertaken in this Family Law Book.

(iii) Provisions in other Enactments

The Dissolution of Muslim Marriages Act, 1939 – Only for Muslim Women. There are no provisions under the Act.

Hindu Marriage Act, 1955

Section 12(1)(d) of Hindu Act treats the marriage (with woman pregnant by some other person) as voidable marriage at the option of the husband and prescribes annulment of marriage by way of Decree of Nullity. The corollary is that the wife cannot avoid the marriage and force her husband to divorce her because she was already pregnant by some other person. Section 12 (2) (b) then proceeds to clarify that no Petition for annulment on this ground shall be entertained unless the Court is satisfied that (i) Husband was ignorant of pre-marriage pregnancy at the time of marriage. (ii) Proceedings have been instituted either within one year after commencement of the Act or within one year from the date of the marriage (not from the date of knowledge), if marriage is solemnized after
commencement of the Act. (iii) Marital intercourse had not taken place (with the consent of husband) since the discovery of existence of the said ground.

The Special Marriage Act, 1954

Section 25 (ii) treats the marriage (with woman pregnant by some other person) as voidable marriage at the option of husband and prescribes annulment of marriage by way of Decree of Nullity. The corollary is that the wife cannot avoid the marriage and force her husband to divorce her because she was already pregnant by some other person. The PROVISO added to the Section lays down that Court shall not grant Decree of Nullity unless it is satisfied that (a) Husband was ignorant of pre-marriage pregnancy at the time of marriage (b) Proceedings have been instituted within a year from the date of the marriage (not from the date of knowledge), (c) Marital intercourse had not taken place (with the consent of Husband) since the discovery of existence of the grounds for a decree.

Case laws

Court did not grant the relief because in the case before it, all the requirements stipulated in the Act were not fulfilled – Mohinder Kaur vs. Bikker Singh, AIR 1970 P & H 248.

Wife’s admission of pre pregnancy coupled with the fact that the husband did not have any access to his wife before marriage was taken as sufficient proof of pre-marriage pregnancy – Mohandre vs. Sushila, AIR 1965 SC 384.

Court took the view that even medical evidence is sufficient to prove pre-marriage pregnancy – Baldev Raj vs. Urmila Kumari, AIR 1979 SC 879.