JHARKHAND HIGH COURT
JUSTICE H.C. Mishra, J. & Dr. S.N. Pathak
Kumari Pooja @ Pooja Kumari Vs. Nandan Kumar @ Munna On 6 February 2017
Law Point:
Void Marriage — Appellant-wife pregnant at the time of her marriage by some person other than Respondent-husband — Unimpeachable evidence that female child born to appellant within 6 months 13 days of marriage — Court below rightly decreed suit by dissolving marriage between parties by decree of divorce under Section 12(1) of Act.
JUDGEMENT
1. Heard learned Counsel for the appellant and learned Counsel for the respondent.
2. The appellant is aggrieved by the ex parte Judgment and Decree dated 12.2.2016 passed by the learned Principal Judge, Family Court, Garhwa, in M.M. Case No. 37 of 1995, whereby, the marriage between the parties has been dissolved by a decree and divorce, under Section 12(1) of the Hindu Marriage Act.
3. The respondent husband had filed the suit for decree of divorce under Sections 12(1) and 13(1) of the Hindu Marriage Act, stating therein that the marriage between the parties had been solemnized on 20.6.2014. On 21.6.2014, he found that the abdomen of his wife was very large and on being asked, she stated that it was due to some illness. Thereafter, she went back to her father’s place, where on 2.1.2015, the appellant wife gave birth to a female child. It is the case of the petitioner-respondent that his wife was pregnant at the time of marriage with someone else than the petitioner-respondent and this fact was concealed at the time of negotiation of the marriage. After the birth of the child, it was mutually agreed between the parties to return all the marriage gifts and to sever the relationship, for which a document was also prepared and thereafter, the appellant-wife went back to her parents’ place with her belongings. With these averments, mainly with the averment that the wife was pregnant at the time of marriage with some other person, not known to the petitioner-respondent, the suit for dissolution of marriage was filed in the Court below.
4. Upon notice, the respondent appellant appeared in the Court below and she filed her W.S. also. The impugned Judgment shows that the case was sent for mediation between the parties, but the matter could not be settled as the respondent appellant did not appear before the Mediator. It also appears from the impugned Judgment that thereafter, the respondent appellant, did not appear in the Court below also, due to which the matter proceeded ex parte and she did not cross-examine any witness, examined on behalf of the petitioner-husband, nor she adduced her evidence.
5. Four witnesses were examined on behalf of the petitioner-respondent in the Court below and they proved the fact that the female child had been born to the wife within six months thirteen days of the marriage. The document, which was prepared for returning all the marriage gifts on severing the relationship, was also proved as Exhibit-1 in the Court below. On the basis of these evidence, the Court below found that the appellant-wife was pregnant at the time of her marriage by some person, other than the petitioner-respondent, and accordingly, decreed the suit with the decree of divorce, dissolving of marriage under Section 12(1) of the Hindu Marriage Act.
6. Learned Counsel for the appellant has submitted that the impugned Judgment and Decree passed by the Court below is absolutely illegal, in-as-much as, adequate opportunity was not given to the appellant in the Court below to cross-examine the witnesses of the petitioner respondent and to adduce her own evidence. Learned Counsel accordingly, submitted that the impugned Judgment and Decree cannot be sustained in the eyes of law.
7. Learned Counsel for the respondent on the other hand has opposed the prayer and has submitted that in view of the findings given by the Court below, there is no illegality in the impugned Judgment and Decree passed by the Court below.
8. Having heard learned Counsel for both the sides and upon going through the impugned Judgment, we find that upon notice, the appellant had appeared in the Court below and had also filed her written statement. When the matter was sent for mediation, she did not appear before the Mediator. Thereafter she did not appear in the Court below also for the reasons best known to her and matter proceeded ex parte, and she did not cross-examine the witnesses examined by the petitioner respondent. In view of the unimpeachable evidence brought before the Court below that the female child had been born to the appellant within six months and thirteen days of the marriage, the Court below has rightly held that the wife was pregnant at the time of marriage with some person, other than the petitioner husband and has accordingly, decreed the suit by dissolving the marriage between the parties by a decree of divorce, dissolving of marriage under Section 12(1) of the Hindu Marriage Act.
9. In view of the above discussions, we do not find any illegality in the impugned Judgment and Decree dated 12th February, 2016 passed by the learned Principal Judge, Family Court, Garhwa, in M.M. Case No. 37 of 2015.
10. There is not merit in this appeal and the same is accordingly, dismissed at the admission stage
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