Raju @ Rajendra v. Ratan — 1987 DIGILAW 767 (RAJ)

JASRAJ CHOPRA, J.—This appeal is directed against the Judgment of the learned District Judge, Jodhpur dated 23.1.1987 whereby the learned District Judge has dissolved the marriage of the appellant and respondent under s. 13 (2) (iv) of the Hindu Marriage Act, 1955 (for short the Act). 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are that the wife-respondent filed an application for dissolution of her marriage with the husband-appellant on July 3,1985 pleading, inter-alia, that she was married with the husband appellant Raju @ Rajendra before about five years, i.e. at the time of the death of her great-grand mother, that after marriage, she has never gone to her matrimonial home meaning thereby that her marriage has not been consummated, that even now, her age is 17 years and she has passed matriculation; that she is in a position to understand what is good for her and what is bad for her and that she does not like to keep her marital relations with the husband-appellant and, therefore, a decree for dissolution of marriage be passed in her favour. She has further stated that she gave a registered notice to the husband-appellant for dissolution of marriage on 13.6.1985 but that notice has been returned as refused. She has contended that when she was married, she was below 15 years and when she repudiated the marriage, she did not attain the age of 18 years and, therefore, a decree be passed. 3. The husband-appellant filed his reply on 6.12.1985 pleading, inter-alia, that the wife-respondent has intentionally refrained from mentioning the date of her birth and the date of the death of her great-grand mother. It has, however been admitted that the marriage was performed at the time of the death ceremony of the great-grand mother of the wife respondent. It has also been contended that after the marriage was performed, the wife-respondent came to the house of the husband-appellant twice: once when his uncle Balkishan was married and second time, when his brother Kamal Kishore was married and on both these occasions, she stayed with him for about 5 to 10 days. It has also been contended that when she was studying in 10th Class, at the time of filling her application, she must have given her date of birth. It has also been contended that when she was studying in 10th Class, at the time of filling her application, she must have given her date of birth. According to the husband-appellant, in their community, the marriages take place early according to their caste -customs and the father of the Bridegroom has to spend allot of money. It appears that the parents of the wife-respondent want to get her ere married at some other place for earning money and, therefore, this decree should not be passed. The husband-appellant has submitted that he received no notice. He has insisted that the wife-respondent be asked to submit the correct proof of her age. 4. On the basis of these pleadings of the parties, the following three issues were framed by the learned District Judge: (1) Whether at the time of the marriage of the wife-respondent with the husband-appellant, her age was below 15 years? (2) Whether the wife-respondent has repudiated the marriage before she attained the age of 18 years? (3) Relief. In support of these issues, the wife-respondent examined Smt. Surendra Kaur (P W. 1), herself as P. W. 2, Kishanlal (P. W. 3) and Mangilal (P. W. 4). The husband-appellant examined Kishnaram (O. P. W. 1), Bherulal (O. P. W. 2) and Rajendrakumar (O. P. W. 3). After hearing both the parties, the learned District Judge decided issues No. 1 and 2 in favour of the wife-respondent and, therefore, he granted a decree for dissolution of the marriage and hence this appeal by the husband-appellant. 5. It is alleged that in the meanwhile, the wife-respondent Smt. Ratan has re-married and an application has been filed that these proceedings have become infructuous but that application has been dismissed by this Court vide its order dated 18 3.1987. 6. I have heard Mr. M. L. Kala, learned counsel for the husband-appellant and Mr. R. M. Bhansali, learned counsel for the wife-respondent. I have carefully gone through the record of the case. 6. I have heard Mr. M. L. Kala, learned counsel for the husband-appellant and Mr. R. M. Bhansali, learned counsel for the wife-respondent. I have carefully gone through the record of the case. S. 13(2)(iv) of the Act reads as under: "13(2)—A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:- (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the that age but before attaining the age of eighteen years." Explanation:-This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976(68 of 1976)." It is therefore, clear that for the success of the petition, the petitioner has to prove three things: (a) that her marriage was solemnized before she attained the age of fifteen years; (b) that she repudiated the marriage after attaining the age of 15 years; and (c) that she repudiated the marriage before attaining the age of 18 years. 7. Whether the marriage was consummated or not is immaterial and beside the point, ft is immaterial whether the repudiation was made before the Marriage Laws (Amendment) Act, 1976 (for short the Amendment Act") came into force or thereafter. Even if the repudiation was made before coming into force the Amending Act, the wife can take advantage of this provision in such a petition and can be granted a decree for divorce under s. 13(2) (iv) of the Act. Now, we proceed to examine whether these three ingredients have been proved by the wife-respondent. It is admitted case of the parties that she was married when she was below 15 years. P. W. 2 Mst. Ratan has stated that at the time of her marriage, she was aged about 11 years as she was born on 1. 2. 1969. Her father P. W. 3 Kishanlal has stated that Mst. Ratan was married before about six years. He was examined on 4. 4. 1986 and, therefore, according to him, Mst. Ratans marriage was performed somewhere in April 1986 and so, if her date of birth is 1.2. 1969, she was definitely 11 or 12 years old at the time of her marriage P. W. 4 Mangilal has stated that Mst. Ratan was married before about six years. He was examined on 4. 4. 1986 and, therefore, according to him, Mst. Ratans marriage was performed somewhere in April 1986 and so, if her date of birth is 1.2. 1969, she was definitely 11 or 12 years old at the time of her marriage P. W. 4 Mangilal has stated that Mst. Ratan was married before about 6 years and he cannot say what was the age of Mst. Ratan at the time of her marriage. O. P. W. 1 Kishnaram has stated that at the time of the marriage of Mst. Ratan, she was 13 years old. To the same effect is the statement of O. P. W. 2 Bherulal, who happens to be the father of Raju & Rajendra Kumar. O. P. W. 3 Rajendra Kumar has stated that at the time of his marriage, Mst. Ratan was aged about 13-14 years. Thus, it has definitely come in evidence that when Mst. Ratan was married she was definitely below 15 years. 8. The next question that arises for my consideration is whether the marriage has been repudiated after Mst. Ratan attained the age of 15 years and before she attained the age of 18 years and in this context, her date of birth becomes important. The wife-respondent has examined Smt. Surendra Kaur, Head Mistress, Government Secondary School, Bamba, Jodhpur. She has brought the Register of Scholars with her as also the form, which has been submitted by Mst. Ratans father at the time of her admission in that School. That form has been marked as Ex. 1 and in that form, it has been recorded by her father that the date of birth of Mst. Ratan is 2.1.1969 and she got admission in that School on 2. 7. 1981. Earlier, she was studying in Government Primary School, Hathiram-ka-Odha. Thus, the date which has been recorded in this form Ex. 1 was written at the time when there was no dispute about her age. It is true that P. W. 2 Kishanlal who has filled that form is a sami-literate person, who has studied only upto fourth class and he is not in a position to remember the exact date of birth but he has stated that he was married before 20 years, and Mst. Ratan happens to be his eldest daughter. It is true that P. W. 2 Kishanlal who has filled that form is a sami-literate person, who has studied only upto fourth class and he is not in a position to remember the exact date of birth but he has stated that he was married before 20 years, and Mst. Ratan happens to be his eldest daughter. She was born after 4 years of their marriage and so, according to him, presently, Mst. Ratan is aged about 16 years. That tallies with the approximate date given by him in the form Ex. 1. It was asked to him in cross-examination that she is aged about 18 years but he has denied that fact and has asserted that she is aged about 16-17 years. He was examined on 4. 4. 1986. Not a single question was asked to him that he has purposely recorded this age in the form wrongly. P. W. 2 Mst. Ratan too has asserted in her examination-in-chief that her date of birth is 2. 1. 1969 and that date has been recorded by her father in Ex. 1. She has stated that at the time, she filed the petition, she was aged about 16 years. This fact has not been challenged in her cross-examination. It has, therefore, to be accepted that P.W. 2 Mst. Ratan was born on 2. 1. 1969 P. W. 4 Mangilal has also stated that Mst. Ratan is the eldest daughter of Kishanlal. 9. O.P.W. 1 Kishnaram has stated that age of Mst Ratan, on 3.10.1986, was 19 years and that estimation of age has been given by him on his visual observation of Mst. Ratan. In cross-examination, he has frankly conceded that he does not know when she was born. Neither he knows the year nor the month of her birth. O. P. W. 2 Bherulal has also asserted on 3. 10. 1986, that the age of Mst. Ratan is 19 years but in cross-examination, he too has stated that has does not know the date of her birth. He has only stated that her father told him at the time of the marriage that her age is 13 years. It was put to him in cross-examination that actual date of birth of Mst. Ratan is 2. 1. 1969 and to this, he has replied that he does not know whether it is wrong or correct. He has only stated that her father told him at the time of the marriage that her age is 13 years. It was put to him in cross-examination that actual date of birth of Mst. Ratan is 2. 1. 1969 and to this, he has replied that he does not know whether it is wrong or correct. Thus he even does not dispute this fact that she was born on 2.1.1969. O.P.W.3 Rajendra Kumar has stated that on 3. 10. 1986, when he was examined, the age of Mst. Ratan was 19-20 years. He has admitted that Mst. Ratan has studied in Bamba School upto 5th standard. He has stated that Mst. Ratan met him in some marriage and there he questioned her about her age and then she told him that she was born in the year 1967. He has stated that he disclosed this fact to his Advocate. If that was so how is it that it does not find mention in his written statement. Moreover, if husband and wife meet in a marriage all of a sudden, they do not ask about the age of each other. This is totally against the human conduct. It was specifically put to Rajendra in his cross-examination that the actual date of birth of Mst. Ratan is 2.1.1969 to which he has replied that he does not know. It means that he has not disputed this assertion of Mst. Ratan that she was born on 2. 1. 1969. I, therefore, feel that the learned District Judge was perfectly justified in taking the view that Mst. Ratans date of birth is 2. 1. 1969. 10. Now, I take up the case of repudiation of the marriage. Mr. M. L. Kala, learned counsel for the appellant has submitted that the notice which has been issued by Mst. Ratan has not been received by Rajendra Kumar. He has categorically denied the receipt of notice. The notice that has been filed has been returned with the endorsement of Refused. It was, therefore, essential for Mst. Ratan to have proved that this notice was actually sent to him and what are the contents of this notice. No efforts have been made to prove that. Be that as it may, the petition has been filed on 3. 7. It was, therefore, essential for Mst. Ratan to have proved that this notice was actually sent to him and what are the contents of this notice. No efforts have been made to prove that. Be that as it may, the petition has been filed on 3. 7. 1985 and in para 3 of the petition the wife-respondent has stated that she does not want to live as a wife of the husband-appellant and she wants dissolution of marriage, and, therefore, she has filed this petition. Mr. Kala has submitted that repudiation of the marriage should be made earlier than the filing of the petition. In this respect, he has placed reliance on a decision of this Court in Smt. Durga Bai Vs. Kedarmal Sharma (1). wherein. K. S. Sidhu, J. (as he then was) has observed that according to s. 13(2) (iv) of the Act, the wife has to prove that her marriage was solemnised before she attained the age of 15 years and she repudiated it after attaining the age of 15 years and before attaining the age of 18 years. It is nowhere mentioned in this Judgment that the repudiation has to be prior to the filing of the petition and, therefore, this ruling does not help the case of Mr. Kala. 11. Reliance was also placed on Smt. Kamla Vs. Jagdeesh Pd. (2), wherein the learned Judge has observed that the petitioner-appellant has not proved that she has repudiated the marriage after attaining the age of 15 years and before attaining the age of 18 years. Of course, the learned counsel made a statement that the allegation made in the petition do not amount to repudiation and it has to be made earlier to the filing of the petition but the learned Judge has not specifically accepted that submission. He has only observed that the petitioner has failed to prove that she has repudiated the marriage after attaining the age of 15 years and before attaining the age of 18 years. The law only requires that the marriage has to be repudiated after attaining the age of 15 years and before attaining the age of 18 years and that repudiation can be made even in the petition. The law does not require that such a repudiation has to be made earlier to the filing of the petition. The law only requires that the marriage has to be repudiated after attaining the age of 15 years and before attaining the age of 18 years and that repudiation can be made even in the petition. The law does not require that such a repudiation has to be made earlier to the filing of the petition. In this case, even the repudiation contained in the petition itself will enure for the benefit of the wife-respondent. She has stated in her statement that she does not want to keep relations of husband-wife with the husband-appellant, She has further stated that she sent a notice repudiating the marriage to the husband-appellant prior to the filing of the petition but that was received back as refused. I, therefore, feel that if she was born in the year 1969 (on 2. 1. 1969), the repudiation contained in the petition filed on 3. 7. 1985 enures for the benefit of the wife-respondent because on that date, she has already, attained the age of 15 years and this repudiation has been made before she attained the age of 18 years. 12. Some evidence has been led to prove that she has gone twice to her in-laws house after marriage. That, of course, is beside the point. As observed earlier, whether the marriage has been consummated or not is not be considered in ordering dissolution of marriage under s. 13 (2) (iv) of the Act. It is true that she has been re-married during the pendency of the appeal but that point has not been pressed into service by the wife-respondent in this appeal. Earlier such an application was filed but that has already been dismissed and, therefore whether she has re-married or has not remarried does not remain relevant. Actually it has become beside the point when I have already taken the view that she was married before attaining the age of 15 years and she has repudiated the marriage after attaining the age of 15 years and before attaining the age of 18 years. These are the only requipement of law which has to be kept in view for granting a decree for dissolution of marriage under s. 13 (2) (iv) of the Act. 13. In the result, I find no force in this appeal and it is hereby dismissed with no order as to costs.