SHAKUNTALA Vs. RAM DHAYAN MISHRA

JUDGEMENT

(1.) APPELLANT feels aggrieved by the judgment and decree dated 6 -2 -1991 passed by Shri Yakub Ali, I Additional District Judge. Shahdol in Civil Suit No. 2 -A/1991 decreeing dissolution of marriage by a decree of divorce, and challenges legality and validity thereof in this first appeal filed under Section. 28 of Hindu Marriage Act, 1955 (hereinafter referred to as the Act).

(2.) THE respondent -husband filed the present suit seeking dissolution of his marriage with the appellant held on 20th June, 1982 at Shahdol. He alleged that at that time, Gauna ceremony was not performed and, therefore, the appellant -wife did not accompany him to his place and continued to live with her parents. According to the plaint, because of the aforesaid, there was no consummation of marriage and yet the appellant delivered a male child on 2 -6 -1983 at Shahdol. According to the respondent, the appellant was leading a life of adultery, which furnished him a ground for seeking divorce. The appellant in her written statement admitted that the marriage between the parties was performed, but denied that Gauna was not performed. According to her, Gauna was also performed, but in spite of it, she admitted that she did not accompany the respondent to his home after marriage. The appellant further admitted that she gave birth to a male -child, as alleged, but denied that the said child was not of the respondent. According to her, the respondent was, at the time of marriage, living with his uncle at Shahdol. The uncle had got annoyed and driven him out of the house, as a result of which the respondent came to live in the house of the appellant and actually lived for about 4 months. She further submitted that during the 'aforesaid period of 4 months, she bad sexual inter -course with him and as a result of which, she had given birth to the child. The appellant, therefore, denied that she was living in adultery. Both the parties adduced evidence in support of their case. The learned ADJ, on appreciation of evidence adduced by the parties, held that the appellant did not accompany the respondent to his house after marriage and even subsequently. There was no opportunity for the respondent to develop sexual relationship with her. In view of the aforesaid, the learned Judge held that the child born to the appellant was not the child of the respondent. The learned Judge, therefore, held that the appellant was leading a life of adultery, sufficient to dissolve the marriage. That is how the impugned -judgment and decree have been passed and are subject matter of challenge in this appeal.

(3.) APPELLANT as D.W. 1 has stated on oath that after about a month or a month and a half, the respondent came to her house and informed that he had been removed from the house of his uncle and thereafter lived in her house for 4*5 months, during which period, he was studying. Her statement to the Court does not tally with her statement in the Criminal Court (Ex. P/4). In the said Court, she had submitted that the respondent came to live in her house in August, 1983 and she gave birth to the child in June, 1984, while in the Witness Box in the Criminal Court, she admitted that the said statement was incorrect. In the Criminal Court statement, she had further admitted that there were only 2 -3 rooms in the house and 3 sisters, 4 brothers and parents lived in them. If it was such a large family, it was not possible for the parties to live separately. Ram Rudra Prasad (D.W. 2) is the father of the appellant and has stated that after one month of marriage, the respondent came to live in his house and lived for four months. Both the appellant and this witness do not allege anything against the respondent so as to justify conclusion that he was making the false statement. The statement that the respondent lived with the appellant for about 4 months is also established from the evidence of Mustafa Khan (D. W. 3). Adityanath (D W. 4), Sitasharan Shukla (D.W. 5) and Bhikarisingh, (D.W. 6). As against this evidence, there is evidence of respondent denying the allegation that be had any quarrel with his uncle and ever went to stay with the appellant. His uncle Ramsumiran (D.W. 4) has also denied that he ever removed the respondent from his house or that the respondent ever lived with the appellant. Nothing whatsoever is alleged against the uncle so as to justify his making a false statement in this behalf. If this was the only material on record and there was no other suspicious circumstances, it could legitimately be argued that the finding as recorded by the learned ADJ was perverse, but besides the aforesaid, there are two important circumstances, which justify the finding against the appellant.