BRAMHANAND Vs. TRIVENI BAI

JUDGEMENT

(1.) THIS is plaintiff husband's first appeal under Section 28 of Hindu Marriage Act against the judgment and decree dated 24-4-1986 passed by Shri R. B. Dixit, Additional Judge to the Court of District Judge, Jabalpur at Katni in Civil Suit No. 45-A of 1983 dismissing the appellant's suit for divorce with costs and directing the appellant to maintain the respondent-wife by paying Rs. 100/- per month, as maintenance.

(2.) THAT the parties were married on 12-3-1981 and the respondent gave birth to a male child on 18-12-1981 are not in dispute. The said child unfortunately died on 19-12-1981. The case of the appellant was that he did not have an opportunity of cohabitation with the respondent for a period of nine months calculated from the date of birth of the male child, which by itself proves that the respondent was the lady of easy virtue. According to him, the child born to the respondent, was not his child. He also complained cruelty on her part against himself and the members of his family. He further complained that the respondent left his home on 1-8-1982 and thereby deserted him unlawfully. He, therefore, claimed divorce. The respondent denied all allegations and submitted that the male child born to her was the child of the appellant. She denied that her behaviour was cruel or that she deserted the appellant. According to her, the appellant and the members of his family had treated her cruelly thereby forcing her to leave the house. She also submitted that the appellant never attempted to call her back. Indeed, her specific allegation was that the appellant refused to admit her to his home, unless she had paid him a sum of Rs. 15,000/ -. The learned Judge, on the basis of evidence adduced by the parties, held that the child born to the respondent was not proved to be the child of anyone else, except the appellant. The learned Judge further held that the respondent did not behave cruelly nor did she retire from his company voluntarily. The learned Judge also found that the appellant has demanded Rs. 15,000/- as a condition of her bringing into the house and, therefore, she was forced to live with her parents. It is this part of the judgment and decree, which is impugned in this appeal.

(3.) IN view of the serious factual controversy between the parties, it may be examined whether the allegations made against the appellant are true ? A perusal of the application for divorce would indicate that the parties were married on 12th March, 1981. This is also the date given by the respondent in her application (Ex. P-A-1) filed under Section 125 Cr. P. C. The appellant has denied that they were married on 12-3-1981 and has asserted that they were married on 12-5-1981. In spite of it, be has not given any explanation as to why he has mentioned 12th March, 1981 as the date in his application, though he claims that it was wrongly written. Nathulal Yadav (PW 3), who supports him on the point, has disclosed in his cross-examination that he changed the date to 12th May at the instance of the brothers of the appellant. Under the circumstances, the learned Judge made no mistake in accepting 12-3-1981 as the date of marriage. The child was born to the respondent on 18-12-1981. This is also admitted by the appellant. In this way, it would appear that the male child was born to the respondent after 9 months and 6 days of her marriage. The appellant has himself admitted that he had sexual relationship with the respondent immediately after marriage, which continued for 5-6 days thereafter. In, view of this admission, it is not possible to hold that the child was not born during the lawful wedlock. Indeed, Nathulal Yadav (PW 3) has admitted that the child was born normally and was not premature. If evidence of this witness is believed, the respondent could have been pregnant at the time of her marriage and the child would, therefore, be not premature, but overdue. This, however, is not the case of the appellant. In this view of the matter, the conclusion that the child was born during the lawful wedlock is the correct conclusion needing no interference of this Court.