SUBHENDU MISHRA Vs. RUNU MISHRA

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree of dismissal passed by the learned Additional District Judge, 2nd Court, Burdwan in Matrimonial Suit No. 4 of 1989/7 of 1987. The petitioner -appellant Subhendu Mishra filed the said suit against his wife Smt. Runu Mishra, the opposite -party -respondent for decree of nullity of marriage under Section 12 of the Hindu Marriage Act, 1955. The ground on which the petitioner prayed for decree of nullity of marriage was that the respondent wife was, at the time of marriage, pregnant by some person other than the petitioner -husband. The petitioner's house is at village Malgram under P.S. Ketugram and the respondent's father's house is at village Chakta under the same Y.S. Admittedly the marriage between the parties took place according to Hindu rites on 19.5.86 corresponding to 4th Jaistha, 1393 B.S. at Chakta. Thereafter a male child was born to the respondent -wife on 22.8.86, that is, about three months after the marriage. The suit for a decree of nullity was filed by the petitioner -husband on 14.1.87 on the ground that on the date of the marriage the respondent was pregnant by some person other than the petitioner -husband. The petitioner's case is that he is not the father of the child that was born within about three moths of the marriage and the birth of the child took place in the respondent's father's house at Chakta and then the petitioner came to learn on enquiry that the respondent gave birth to a male child on 22.8.86. It is the petitioner's allegation that by suppressing the fact that the respondent was pregnant by some other person she was given in marriage with the petitioner and soon after the marriage the respondent went to her father's place for Dwiragaman and thereafter came to her matrimonial home and stayed there for two or three days and then went back to her father's place at Chakta and that the marriage has not been consummated and the respondent on one plea or other never allowed the petitioner to have access to her and on false pretext kept everything concealed. It is the further case of the petitioner, as stated in the petition, that since Jaistha 1393 B.S. the respondent stayed in her father's place and as such the petitioner could not detect earlier that she was in advanced stage of pregnancy and that the pregnancy was the outcome of illegal intercourse with someone else other than the petitioner. The petitioner accordingly prayed for decree of nullity of marriage under Section 12 of the Hindu Marriage Act, 1955.

(2.) ON the other hand, it is the case of the respondent -wife that prior to the marriage between the parties they had intimacy and taking that opportunity the petitioner used to visit the respondent's father's house at Chakta when they were known to each other through a relation and the petitioner and the respondent had the occasion of free mixing and had sexual enjoyment as a result of which the respondent became pregnant and ultimately when it came to the knowledge of the parents of both the parties the guardians of both sides arranged for their social marriage and after the marriage they lived as husband and wife and enjoyed their marital life and the birth of the child took place in the matrimonial home at Malgram and after sometime she was sent to her father's place at Chakta for rest.

(3.) THE learned trial court after considering the facts, circumstances and evidence on record came to the finding that the respondent -wife was made pregnant by the petitioner himself before their marriage and with full knowledge of the same the petitioner married her thereafter. The learned trial court came to the further conclusion on the basis of evidence on record that the marriage was not only consummated but even after knowing about the pregnancy they lived as husband and wife and accordingly the suit was even barred under Section 12(2)(b)(iii) of the Hindu Marriage Act. Accordingly the learned trial court dismissed the suit. The appellant -husband has thereafter preferred the present appeal against such dismissal of the suit. The point for our consideration now is whether the learned trial court was justified in the dismissing the suit.