Rachhpal Kaur vs Joginder Singh

M.M. Punchhi, J.—The wife-appellant claimed divorce from her husband under the provisions of section 13(2) (iv) of the Hindu Marriage Act on the premises that her marriage was solemnised before she attained the age of 15 years, and she had repudiated the marriage after attaining that age, but before attaining the age of 18 years. Thus, the sole point for consideration before the trial Judge was whether the wife was married before attainment of the age of 15 years and whether after attaining that age she had repudiated the marriage before attaining the age of 18 years. The trial Court calculated the age against her which has given rise to the present appeal.

At the outset, it must be mentioned that the husband-respondent did not comply with the order of this Court in paying litigation expenses to the wife. Thus, his defence is struck off. That automatically does not mean that the wife is entitled to have her appeal allowed on the fortuitous circumstance of the husband not being in a position to oppose the appeal. The matrimonial Court is not merely a civil court. It has special jurisdiction and a duty cast on it to satisfy itself and be vigilant before granting any relief. Section 23 of the Hindu Marriage Act is a pointer in that regard. It specifically provides as follows:--

Decree in proceedings.--(1) In any proceeding under this Act, whether defended or not if the court is satisfied that--

(a) any of the grounds for granting relief exists.................

(Emphasis supplied).

Thus, on the anvil of this provision even if the appeal is undefended, the Court is required to see whether any of the grounds for granting relief exists and, therefore, the wife-appellant has to prove her case before relief can be granted.

To prove her point that she was less than 15 years of age at the time of the marriage which took place on 12.8 1982 at village Ranguwal, her father stepped into the witness-box as P.W.1. He stated that Rachhpal Kaur was one of his six children and that he was married 25 to 30 years earlier to 5-12-1984, the day he deposed before the Court. He was positive that his first child was born about 1/1 1/2 years of marriage and the rest of the children were born after a gap of 2/3 years. He stated that there was only one child elder to Rachhpal Kaur and that too was a daughter Kanwaljit Kaur by name. Rather, he stated that he had five daughters and only one son. He was positive that his daughter was born on 26-2-1969. P.W.2, an official from the office of the Civil Surgeon, Ludhjana, brought the register of births and left copy, Exhibit P. 1, on the record as certificate of birth. According to the original entry relating to Rachhpal Kaur revealed her to be the third child of Shanti, her mother. The birth, however, was reported on 5-4-1969 as per the entry. P.W.3 Rachhpal Kaur supported her own cause by further suggesting that girls, who were her class mates when she was a student of primary classes, had not got married till then. However when asked to submit herself for radiological examination, she totally refused to do so. Even otherwise, she did not produce any certificate from the school wherefrom some corroborative material could be obtained that birth certificate, Exhibit P. 1, related to her. It is in this state of evidence that the learned trial Judge took the view that when Rachhpal Kaur was the second child of her parents, as deposed to by her father, and he was married 25 years earlier to 1984, then on the day of his deposition, Rachhpal Kaur was about 19 years of age because, as per his statement, the eldest child was born 1 1/2 years of marriage and the following one three years thereafter. On this rough logic, the marriage of Rachhpal Kaur was opined to have been solemnised when she was 17 years of age. It is on this reasoning that the appellant-wife was denied the relief.

Learned counsel for the appellant has vehem ently urged that when birth certificate, Exhibit P. 1, specifically mentions the name of the appellant Rachhpal Kaur and her date of birth to be 26th February, 1969, that should be a clincher on the basis of which should be held entitled to relief. He further contends that the method adopted by the learned trial Judge was erroneous, for it could not be said positively on the basis of Exhibit P.I that Rachhpal Kaur was the third child of her mother Shanti, when the father was saying that she was the second child. Lately, he submitted that the father of appellant being an illiterate man could not be expected to be meticulous in details of years about his marriage and the gaps of age between his children.

Neither point raised by the learned counsel appeals to me. Birth certificate, Exhibit P.I, or the original entry, when tested against the statement of the father and the appellant, is in one way wrong inasmuch as it correctly pertains to the third child and the name written therein as Rachhpal Kaur is wrong. And if on the other hand, the name written as Rachhpal Kaur is right, then the particular that it was the third child of Shanti is necessarily wrong. The father of course is emphatic that the appellant was his second child and by rough calculation was born about 4 1/2 years after his marriage which took place 25 years prior to the year 1984, the day he tdeposed in court. Some cogent and unimpeachable evidence was necessary bo still the fluctuation set in by contrasting statement of the father and the birth certificate. The offer put to the appellant that she should subject serself to radiological examination was spurned by her. Nothing from the chool record is available as corroborative material, one way or the other. It goes without saying that the wife could only succeed on her own evidence and not on the weakness of the defence which, as said earlier, has been kept aside totally from consideration. The evidence led by the wife does not inspire confidence that she was less than 15 years of age before marriage. She was obviously much beyond that. Thus, it is held that she was not entitled to avail the provisions of section 13(2) (iv) of the Hindu Marriage Act to repudiate the marriage and have a decree for dissolution thereof.

For the foregoing reasons, this appeal fails and is hereby dismissed.