LUXMI ALIAS GOGLI (MINOR) Vs. MAHENDER SINGH

JUDGEMENT

(1.) This appeal arises out of a petition for divorce. It is contested since the respondent refused to accept service.

(2.) The wife-appellant claimed divorce under Section 13(2) (iv) of the Hindu Marriage Act, on the ground that her marriage was solemnized with the respondent before she attained the age of 15 years, it had not been consummated and she had repudiated the marriage after attaining that age but before attaining the age of 18 years. Additionally, she claimed her husband to be deaf and dumb as also insane. Her claim was contested by the husband on both counts, but the appellant gave up her case against the respondent on the ground of insanity. With regard to the age factor, however, the matrimonial Court was obliged to record evidence of the parties. On going through the evidence thus led, it came to the conclusion that the appellant could not repudiate the marriage in accordance with the provisions of law and on this score dismissed the divorce petition, giving rise to this appeal.

(3.) From the evidence led by the appellant, it is clear that her date of birth as recorded in the Admission Register of school, and that too by name, is 10th August, 1971. So says P.W.1 Abhe Singh, Head Master Govt. Primary School Chauki No. 1, Rewari. The marriage between the parties took place in Baisakh Sudi Dooj, Samat 2039, which the matrimonial Court has equalised to March or April 1982. From that angle, the appellant at the time of the marriage was just about 11 years of age, Besides that, tMay, 1979, the respondent met with an accident ; that his right leg was fractured and he was admitted to Guru Tegh Bahadur Hospital, where the appellant was working, but she did not care about him even after coming to know about his accident ; that the appellant and her mother misbehaved with him in the Hospital and all this had created a reasonable apprehension in his mind that it would be harmful and injurious for him to live with the appellant ; that certain respectables intervened in the matter and it was settled that the respondent should have independent separate residence and then the appellant would resign. On this, the respondent took the house on rent at Model Town, Ludhiana, on 14th November, 1979, but even then the appellant did not improve her conduct and behaviour and rather she remained very rude and crude towards the respondent. She was not wiling to attend house-hold work. Upto 17th December, 1979, they lived at Model Town, Ludhiana, and thereafter separated for ever and that the appellant made a false report against the respondent in Police Station Division No. 5, Ludhiana, and on 15th August, 1980, she made a false report of apprehension of breach of peace from the respondent, his mother and father and they were proceeded against under section 107/151, Code of Criminal Procedure, before a Criminal Court. She also made a false complaint under section 406, Indian Penal Code, read with sections 4 and 6 of the Dowry Prohibition Act in which they were acquitted. It was alleged that she had been cruel to him and withdrawn from the society of the respondent with effect from 17th December, 1979 without any reasonable excuse and thus deserted him for a continuous period of not less than two years immediately preceding the presentation of the divorce petition. 3. Surjit Kaur (appellant) contested the petition. She in her reply took preliminary objection that the respondent was estopped by his own act and conduct to file the petition which was frivolous. On the pleadings of the parties, the following issues were framed :-