NANIKRAM GELLARAM Vs. DRUPADIBEN

JUDGEMENT

(1.) This petition involves a simple question of law as regards the interpretation of clause (b)(ii) of sub-sec. (2) of sec. 12 of the Hindu Marriage Act 1955 (Act No. 25 of 1955) (hereinafter referred to as the Act). The original petition namely H.M.P. No. 5 of 1965 was filed under sub-sec. (i) of sec. 12 of the Act for annulment of the marriage on the grounds covered by clause (d) namely that the respondent was at the time of the marriage pregnent by some person other than the petitioner. The petitioners case was that his marriage with the respondent-wife was solemnized according to Hindu religious rites on June 1 1964 at Kubernagar in Ahmedabad. At that date he did not know that the respondent was pregnant. He came to know about it only in the month of October 1964 The respondent wife delivered a child on October 25 1964 The respondent wife is now staying with her parents at Ankleshwar. It was on this allegation that the petition was filed on June 14 1965 The respondentwife contested the petition by her written statement wherein she inter alia contended that her betrothal with the petitioner took place in March 1963 when her brother was in service at Anand. She went to liv. with her brother at Ankleshwar on the transfer of her brother to Ankleshwar. She contended that during this period the petitioner used to visit her brothers place at Ankleshwar very often that he had come twice and for the last time in January 1964 the petitioner came again to Ankleshwar; that by that time both came in close contact and in January 1964 there was sexual intercourse between them. She contended that the petitioner used to see her secretly and that she had disclosed the fact of her pregnancy to the petitioner one month prior to the marriage and that fact was also known to the parents of the petitioner. She contended that the petition was not filed within one year of their marriage and could not be entertained.

(2.) The learned Civil Judge Senior Division Narol before whom this petition was filed raised a preliminary issue as regards the maintainability of the petition in view of the provisions in sec. 12(2)(b)(ii) of the Act. He found relying upon a Bombay decision that the petition was not maintainable. The decision relied upon was the one of the Division Bench of the Bombay High Court consisting of Patel and Chandrachud JJ. in Sawlaram v. Yeshodabhai A.I.R. 1962 Bom. 190 decided on September 4 1961 wherein the view taken is that sec. 10 of the General Clauses Act 1897 (Act No. 10 of 1897) does not apply in the case of a petition filed under sec. 12(1)(d) of the Act as condition in sec. 12(2)(b)(ii) is not complied with. It is against this decision that the present second appeal has been filed.

(3.) It is admitted that the proceeding has been instituted not within one year from the date of the marriage. Sec. 12 of the Act deals with voidable marriages and the grounds on which a marriage may be annulled by a decree of nullity. The relevant ground which has been urged is one which falls under clause (d) of sub-sec. (1) of sec. 12 of the Act. Sec.