Munni Devi vs Satbir

G.R. Majithia, J.—The wife has assailed the judgment and decree of the Matrimonial Court dismissing her petition for divorce u/s 13 of the Hindu Marriage Act (''The Act'' for short).

The facts :

The parties were married on May 30, 1985; that Smt. Lali, wife''s elder sister, was also married to the elder brother of the husband on the same day; that she was less than 15 years of age on the date of her marriage; that the muklava ceremony was performed after two years of the marriage; that the husband had Pressed the wife to bring Rs. 15000/- from her parents her parents/and on her refusal to do so, she was maltreated. The husband denied the allegations.

On the pleading of the parties, the following issues were framed :

(1) Whether the petitioner is entitled to a decree of divorce on the ground of cruelty as alleged in the petition ? OPP 1-A. Whether the marriage bad been solemnized before attaining the age of 15 years and also whether the petitioner had repudiated the marriage after attaining that age and before attaining the age of 18 years? OPP.

(2) Relief.

Issue Nos 1 and 1-A were decided against the wife and in favour of the husband and on ultimate analysis, the petition was dismissed.

Civil Miscellaneous No. 30-M of 1991 for fixation of maintenance pendente lite was filed by the wife. Statement of the husband was recorded on January 6, 1992 and he stated thus ; 4. We are six brothers. I am third issue of my parents. My father owns 10 acres of land, Out of my six brothers, the eldest and myself are married. I am willing to rehabilitate my wife in the matrimonial home. It is a fact that my elder brother was married to the elder sister of my wife. My brother''s wife died unnatural death. My brother was prosecuted u/s 302 I.P.C but has since been acquitted. 1 may be allowed one. opportunity to persuade my wife to return to the consortium. If I fail to do so, our marriage may be dissolved by a decree of divorce by a mutual consent."

I summoned the wife, but she refused to live with the husband stating that she apprehends danger to her life and she is likely to meet the same fate meted out by her sister. The husband refused to stand by his earlier statement dated January 9, 1992 that if the wife refused to go to the marital home, their marriage be dissolved by a decree of divorce and prayed that the appeal be disposed of on merits.

The Matrimonial Court found that the wife has failed to establish the matrimonial offence of cruelly alleged by her. Under issue No. 1-A, the Matrimonial Court found that the wife had failed to establish that she was less than 15 years of age at the time of her marriage and she had not repudiated the marriage before attaining the age of eighteen years. The approach of the Criminal Court is wholly erroneous.

From the statement of PW-2 Ram Sarup, father of the wife, the following facts emerge:

(i) The wife and her elder sister Smt. Lali were married to both the brothers, namely, Jaswant and Satbir, respondent-husband, on the same day;

(ii) The muklava ceremony of the wife took place one year after her marriage;

(iii) Smt. Lali died an unnatural death;

(iv) Husband''s elder brother Abhe Singh wanted Smt. Lali to live in adultery with him. She reported the incident to her husband Jaswant, Abhe Singh gave 3 jelli blows to Jaswant. Lali was thrown into the well. Lali''s husband was tried for the murder of Lali, but was ultimately acquitted by the Criminal Court.

The husband''s statement was recorded in this Court on January 9, 1992 and he admitted that his wife''s elder sister was married to his elder brother, who died unnatural death and the brother was prosecuted for the murder of his wife, but was acquitted. The statements of the husband and of the wife''s father read together indisputably suggest that the wife''s elder sister was murdered and her husband was prosecuted for causing her death. It is correct that the Criminal Court has acquitted the husband''s elder brother. May be the prosecution did not bring home guilt to the accused, but the fact remains that the wife''s elder sister died unnatural death and the wife is not wrong in saying that she apprehends danger to her life at the hands of her husband. The entire incident leading to the death of her elder sister may be re-constructed in her mind occasionally making it impossible for her to reconcile to live in the house where her elder sister allegedly was being molested by the husband''s elder brother, who wanted her to live in adultery with him and her refusal to succumb to the pressure led to her extinction from mortal frame. The wife is a matriculate. She is not oblivious of the prevalent state of affairs in her husband''s house. The husband has five more brothers and only two were married. The others are unmarried. It may not be improbable that the other brothers were forcing her elder sister to live as common wife to the brothers and on her resistance she was done away to death The lurking fear in the wife''s mind is not without any basis. In this background, it cannot be said that these acts amount to mental agony to the health of the wife, which amounts to legal cruelty. The wife succeeds in proving the offence of mental cruelty against the husband.

The petition for divorce was amended on May 29, 1990 and the following plea was introduced:

That at the time of the marriage the petitioner was 141/2 years of age and was minor at the time of marriage and she has no knowledge about the results of the married life and now the petitioner presented the present petition before attaining the age of 18 years and thus repudiated the marriage between the petitioner and the respondent. Now the petitioner in these circumstances cannot live with the respondent and repudiating the present marriage u/s 13(2)(iv) of the Hindu Marriage Act and not wants to live with the respondent."

In the corresponding paragraph of the written statement, the plea was denied. The wife was recalled as PW-1 and her statement was recorded on September 4, 1990 and she stated that she was 141/2 years of age at the time of her marriage and in cross-examination, she stuck to her guns that she was married 5 years back. In para No. 1 of the petition, it was stated that the parties were married on May 30, 1985. The wife''s version was not disproved by the husband. No evidence was led to rebut the sworn testimony of the wife. The only irresistible conclusion is that the wife was 141/2 years of age on the date of her marriage and she has repudiated the same after attaining the age of fifteen years but before attaining the age of eighteen years and as such, she is entitled to divorce u/s 13(2)(iv) of the Act. The Matrimonial Court misled the evidence and drew wrong conclusion which was not permissible. The findings under issue No. 1-A are also reversed.

For the reasons aforesaid, the wife succeeds in proving the offence of cruelty and also that her marriage was solemnised when she was less than fifteen years of age and that she repudiated her marriage after the age of fifteen years, but before attaining the age of eighteen years. She is entitled to a decree for divorce under Sections 13(1)(ia) and 13(2)(iv) of the Act.

Resultantly, the appeal succeeds. The judgment and decree of the Matrimonial Court are set aside and the marriage between the parties is dissolved by a decree for divorce as indicated above, but with no order as to costs.