VINA Vs. DIGAMBAR

JUDGEMENT

(1.) This appeal is preferred by the appellant/ wife against the decree of nullity passed by the Extra Assistant Judge, Akola in Hindu Marriage Petition No. 156 of 1983 on 10.7.84 under Sec. 12(1)(d) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act").

(2.) The respondent/husband claimed a decree of nullity of marriage on the ground that the appellant/wife was, at the time of marriage, pregnant by some person other than himself. His case as pleaded was that after having seen the appellant sometime in Dec., 1982, the engagement ceremony was performed on 31.1.1983 and the marriage was solemnized at Akola on 20.3.1983. Within two days after the marriage, the appellant/wife went to her parent's house where she stayed for 15 to 20 days. Thereafter, the appellant was brought to Akola and taken to Paturda for Otibharan ceremony, to be performed on 16.4.1983. On that day, the health of the appellant was not good, inasmuch as she had vomited twice or thrice with the result that he could not have any sexual intercourse with her. On that very day, the respondent/husband had got the appellant examined by the doctor but inspite of the treatment, the health of the appellant did not improve. The appellant's father hence took her away to his house where she stayed for about 3 weeks. During the stay of the appellant at her parents house, the mother and brother of the respondent met the appellant for making enquiries about her health. At that time, it was represented that the appellant would come to the house of the petitioner's brother at Akala after she had improvement in health. The appellant returned back to the marital house at Akola in the third week of May, 1983. At that time, there were discussions amongst ladies about the suspected pregnancy of the appellant. Shocked thereby, the respondent got her examined by Dr. Mrs. Tamhane on 30.5.1983. After examination, she certified that the appellant was pregnant since about 12 to 14 weeks and a certificate to that effect was also issued. The Doctor also prescribed some medicines. After returning back to the house, the respondent enquired from the appellant regarding the pregnancy and in response to this enquiry, she confessed of having illicit connection with one Harish Kale, who was a tenant at the house of the parents of the appellant. After 2-3 days, the respondent left for his duty at Jamb Vasu where he was employed. Within 2-3 days thereafter, he received a message from his brother that the appellant had left the house after leaving a chit on 6.6.1983. Upon receiving the message, the respondent came to Akola and found that the appellant was staying at her parents' house. Thereafter, the respondent issued a notice dated 15.6.1983 to the appellant. A reply thereto was also received. In the meanwhile, the child came to be aborted. Briefly, what is contended by the respondent in the petition was that the appellant was pregnant by some other person than himself and that he was ignorant of the fact of pregnancy at the time of marriage and there was no marital intercourse between him and the appellant since the discovery of the pregnancy.

(3.) The appellant contesting the petition admitted the fact of solemnization of marriage on 20.3.1983. According to her, the Otibharan ceremony took place on 14.4.1983 and in the night of that very day, she had sexual intercourse with the respondent. She denied having any illicit contact with Harish Kale who was the tenant of the father of the. appellant. Her further contention was that the respondent used to visit her father's house after the engagment ceremony that was held on 31.1.1983 and she had sexual intercouse with him twice or thrice prior to the marriage and the pregnancy was result of such sexual intercourse she had with the respondent. She also contended that even after she returned from her father's house to the house of the respondent, he used to have sexual intercouse with her till she was driven out. The gist of the defence of the appellant was that she had no contact with any other person and according to her, the pregnancy was as a result of contact with the respondent and he alone is responsible and no one else. She hence prayed that the petition be dismissed.