Smt. Shakuntla vs Rajbir

J.V. Gupta, J.—The marriage between the parties was solemnised on April 4, 1985. The husband Rajbir, filed the petition for the grant of the decree of divorce u/s 13 of the Hindu Marriage Act, (hereinafter called the Act) on May 16, 1986. Out of this wedlock, a child was born on September 30. 1985, who died after about 14 days. It was alleged by the husband that he suspected the virginity of the wife and that the same was pointed out to her on which she became annoyed and left his house. Thereafter, she never visited the matrimonial home. He also made enquiries and came to the conclusion that she was of bad character and that she was living in adultery. It was further alleged that the wife gave birth to a male child on September 30. 1985, in the Haryana Maternity Home, Charkhi Dadri and that it died after 14 days. The wife or her parents never gave any information regarding the birth of the child or his death. According to him. the wife had deserted him since April 10, 1985. In the written statement, it was pleaded inter alia that in the month of September, 1985, she fell down from the Pairkala (staircase) resulting into severe bleeding and ultimately a premature baby was born who died She denied that her parents had not given any information to the husband She stated that the husband had himself got her admitted to the hospital. In fact, she further pleaded that the husband was not satisfied with her and that she was always subjected to torture and taunts on account of inadquate dowry. The husband had leveled false and baseless allegations in order to harass her parents. She denied that she had left the matrimonial home. According to her, rather it was she who had been driven out of the home by snatching her ornaments and clothes On the pleadings of the parties, the trial Court framed the following issues:

Whether the Petitioner is entitled to a decree of divorce on the grounds of adultery as mentioned in the petition ?

Relief

The learned Additional District Judge came to the conclusion that since the wife delivered a child on September 30, 1985, i.e., after about five months of the marriage, the said child could not be said so be that of the husband and according to the learned Additional District Judge, the wife was, at the time of the marriage, pregnant by some person other than the husband. Thus, it was held that all the ingredients of the matrimonial offence as contained in Section 12(1)(d) and Section 12(2)(b) of the Act, were complete. In view of that finding the learned Additional District Judge held that in these circumstances no decree of divorce as such could be passed, but the marriage could be annulled u/s 12(1)(d) of the Act. At the same time, it was also found that since the evidence of living in adultery was missing, nor the alleged adulterer was arrayed as a Respondent, the question of grant of divorce as such did not arise. Consequently, the marriage was annulled by passing a decree u/s 12 of the Act.

The learned Counsel for the Appellant wife contended that the husband never filed the petition u/s 12 of the Act for annulment of the marriage, nor there was any such issue claimed in the petition. Thus, argued the learned Counsel, the marriage could not be annulled in view of the provisions of Section 12(2)(b) (ii) of the Act, which provides for a period of one year for instituting the proceedings from the date of the marriage. Since the petition was filed after more than one year of the marriage, no relief could be granted u/s 12 of the Act.

After hearing the learned Counsel for the parties, I find force in the contention raised on behalf of the Appellant.

Admittedly, the petition was filed by the husband u/s 12 of the Act, for getting the marriage annulled Clause (b) of Sub-section (2) of Section 12 of the Act inter alia provides that on the grounds specified in Clause (d) of Sub-section (1) of Section 12, the proceedings could be instituted within one year from the date of the marriage. In the present case since the petition was filed after more than one year of the marriage, the same could not be annulled u/s 12 of the Act.

Faced with this situation, the learned Counsel for the Respondent-husband submitted that from the evidence on the record, it was proved that the wife was living in adultery as contemplated u/s 13(sic)(i) of the Act, and, therefore, on that basis, he was entitled to the decree of divorce, since no such finding has been given by the learned Additional District Judge, this contention could not be accepted.

Under the circumstances, this appeal succeeds and is allowed. The decree of the trial Court is set aside and the case is sent back to the Additional District Judge, for deciding the matter afresh in accordance with law u/s 13 of the Act, after allowing the parties to lead additional evidence, if any. The parties have been directed to appear in his Court on November 2, 1987. The records of the case be sent back forthwith.