SMRITIKANA BAG Vs. DILIP KUMAR BAG

JUDGEMENT

(1.) The appellant wife has preferred this appeal against the judgment and decree passed by the learned Additional District Judge, 12th Court, Alipore dissolving her marriage with the respondent hushand under Section 13 (1) (iii) of the Hindu Marriage Act, 1955. The learned Additional District Judge, however, dismissed the prayer of the respondent husband for annulling the marriage of the parties on the ground specified in Section 12 (1) (b) of the said Act. The respondent husband has also filed a cross-objection against the said dismissal of his prayer for annulment of their marriage.

(2.) On 3rd March, 1976 the marriage between the appellant and the respondent according to Hindu rites took place at 50/1, Shib Tbakurbari Lane, P. S. Behala, District 24 Parganas. On 21st Sept., 1976 Dilip Kumar Bag, the respondent herein, had presented in the Court of the District Judge, 24 Parganas his petition for annulment of his marriage with the appellant under Section 12 and in the alternative for dissolution of the said marriage under Section 13 (1) (in) of the Hindu Marriage Act, 1955. Although the said petition for divorce was presented by the respondent husband before even one year had elapsed since the date of his marriage with the respondent, he did not make any application under the proviso to Section 14 (1) of the Hindu Marriage Act for allowing him to present the said petition for dissolution of marriage. He did not plead any case of exceptional hardship to him or of exceptional depravity on the part of his wife. Therefore, it is patent that on the date of the presentation of the said petition, the Court below was not competent to entertain the respondent husband's petition for dissolution of his marriage with the appellant by a decree of divorce. But the said bar under Section 14 of the Hindu Marriage Act did not apply to the respondent's petition for annulling the marriage under Section 12 (1) of the said Act. It is somewhat strange that none of the parties had drawn the attention of the Court below to the provisions of Section 14 (1) of the Hindu Marriage Act and overlooking the said provisions, the Court below has dissolved by a decree of divorce the marriage between the appellant and the respondent.

(3.) We find from the records that on 1st April, 1977 the present appellant had filed her written statement in the present case and on 15th April, 1977 the trial Court had framed the issues. On 14th May, 1977 the respondent husband, who was the petitioner in the Court below, purported to file an application under Order 6, Rule 17 of the Code read with Section 39 (2) of the Marriage Laws (Amendment) Act, 1976. He prayed that ht might be allowed to amend his main application 'with a view to give further details and to avail of the reliefs provided in the Marriage Laws (Amendment) Act, 1976'. It was further averred "that the main application was drafted in 'hot haste', due to oversight and inadvertence, proper details of happenings" were not given in the main application. It may be pointed out that the Marriage Laws (Amendment) Act, 1976 (Act 68 of 1976) was published in the Gazette of India Extraordinary Issue dated May 27, 1976 and on 21st Sept., 1976 the respondent husband had presented his petition for annulment and in the alternative for dissolution of the marriage with the appellant wife. Therefore, the provisions of Sub-section (2) of Section 39 of the Marriage Laws (Amendment) Act, 1976 were not attracted to the facts of the present case. But, undoubtedly the Court below had jurisdiction to allow amendments prayed for the purpose of determining the real questions in controversy between the parties. The Court below had allowed the amendments prayed for. Therefore, the present appellant had filed an additional written statement.