Kamlesh vs Chamel Singh

M.M. Punchhi, J.—Since the claim of the wife that she had repudiated her marriage, solemnised before the attainment of 15 years of age. after attaining that age but before attaining the age of 18 years was negatived by the Additional District Judge, she has come up in appeal. Some of the undisputed facts which have been found by the Court below are these.

The wife was born on 28-8-1965, as revealed from birth entry, Exhibit P. 2. The marriage took place on 7-4-1976 i. e. before she attained the age of 15 years She repudiated the marriage after attaining the age of 15 years as established by her conduct, least of which is her filing the petition for divorce. The only clog to her claim was whether she had caused repudiation of the marriage before attaining the age of 18 years.

The wife completed her eighteenth year on 28-8-1983 and it was on her to prove that she had repudiated the marriage before that date. She filed the petition for the purpose on 17-1-1985 i.e. after one year, five months and twenty-one days of her completing eighteen years of age. The act of repudiation, if any, was thus a matter of pleading and proof.

As averred in her petition, she stated in paragraph 5 thereof that she had repudiated the alleged marriage after attaining the age of 15 years and before attaining the age of 18 years. To this, the husband replied that marriage was validated by the wife after attaining her maturity and she remained with the husband for about one month and consummated marriage with the Respondent. In her replication, she stuck to her ground and asserted repudiation of the marriage. At the trial, she maintained that she was a virgin and had never gone to live with the husband in his house. The husband, on the other hand, stuck to his claim that the marriage was consummated and the wife was not a virgin. However, the wife got herself medico-legally examined from Dr. Subhita Azmani P. W. 4. She deposed to have made observations in her medico-legal report. Exhibit P. 3, from which she came to the opinion that the wife was a virgin. This aspect of the case is also no longer in dispute that the wife is a virgin. No medical expert to the contrary was produced by the husband.

In paragraphs 6 and 7 of the petition, the wife had alleged that the consent of her parents for marriage was obtained by fraud as it was averred that the husband was studying and was a brilliant student but later on it transpired that he was totally illiterate. Additionally, it was stated that the relatives of the husband came to her house about a year back when it came to her knowledge that he was an illiterate person, a vagabond and a habitual drunkard. The husband, of course, denied the allegations. The learned trial Judge ignoring the allegation made by the wife in paragraph 5 of the petition of her repudiating the marriage after attaining the age of 15 years and before attaining the age of 18 years took into account averments in paragraph 7 alone. He came to the opinion that repudiation took place when the relatives of the husband came to the wife''s house about a year back prior to the presentation of the petition and since the petition was moved on 16-1-1985, it was taken as if the repudiation had taken place in early 1984 i.e. when the wife had attained 18 years of age. It is on this ground that the wife''s claim was negatived. Additionally, the plea of the husband that the wife had gone to his house in 1982 and lived with him for a month during which time he had got her enrolled as a voter in the Assembly list and got her name added in the ration card, as evidenced from Exhibit''R-1'' and Mark''A'' found favour with the learned trial Judge. He thus took the view that there was no truth in the contention of the wife that she had not joined her husband after her marriage although, of course, cohabitation was not proved.

Precedent cited at the bar was Bathula Iylaiah Vs. Bathula Devamma, , in which it has been laid down that it is not necessary for a wife to file a petition u/s 13(2) of the Hindu Marriage Act for dissolution of the marriage before completion of 18 years of age and that she could file it even later but repudiation of marriage had to take place before the attainment of 18 years of age. There can be no two opinions on the subject. Thus, the only point to be seen is whether the word of the wife that she had repudiated the marriage before attaining 18 years of age should be axepted or not.

u/s 20(2) of the Hindu Marriage Act, the statements contained in every petition under the Act can at the hearing be referred to as evidence. As said before, paragraph 5 of the petition clearly carried the requisite assertion that she had repudiated the marriage after attaining the age of 15 years and before attaining the age of 18 years. In that situation, there was no occasion for the learned trial Judge to rest the case of the wife on allegations in paragraphs 6 and 7 alone and treating the crucial event to have happened a year prior to the presentation of the petition. No where did wife say in her petition that she had repudiated the marriage on the visit of her husband''s relatives a year prior to the presentation of the petition. It is true that in her statement in Court and that of her father this incident has been said to have happened 11/2 or 2 years prior to the presentation of the petition but that by itself does not seem to me in any manner telling on her case otherwise set up in paragraph 5 of the petition and stuck to at the trial. Her word in that regard seems to me more trust worthy than that of the husband when his claim to the consummation of marriage has been negatived and the wife having emerged truthful that she was a virgin.

Additionally, as observed earlier, the claim of the husband, if true, about her having lived with him in 1982 would normally have ended in the establishment of the sexual relationship between them. The incidence that her name was found in the Assembly voters'' list or in the family ration card is by no means conclusive for such additions, as common experience tells us, are often made to serve other purposes like electoral strength and drawing up more ration from consumer shops. These facts, in the circumstance of the marriage not being consummated, by themselves do not establish the wife having gone to her husband. This rather is one of the behaviours from which repudiation of the marriage can be inferred and I do so accordingly.

For the view above taken, this appeal merits acceptance. Accordingly, the judgment and decree under appeal is set aside. The wife is granted divorce in terms of Section 13(2) (iv) of the Hindu Marriage Act, 1955 but without any order as to costs.