HAR DAYAL Vs. SANTOSH

JUDGEMENT

(1.) THIS appeal has been filed against the judgment and decree dt. 27.08.2004 passed by the District Judge, Churu, whereby the learned Judge has dismissed the appellants' petition under Sec. 13 of the Hindu Marriage Act and has rejected his case for divorce. Briefly, the facts of the case are that the appellant -husband, Hardayal and respondent -wife, Smt. Santosh were married on 25.06.1998 according to Hindu rites and customs. However, immediately after his marriage, the appellant discovered that his wife was four months pregnant. Immediately after the marriage, the respondent wife back to her parental place. Since then she never returned. Subsequently, she lodged a FIR, FIR No. 216/1999, for offences under Secs. 406 and 498A IPC against the appellant. However, eventually, the appellant was acquitted in the said criminal case. Thereafter, the appellant filed an application for divorce on the grounds of cruelty and desertion. But, by judgment and decree dt. 27.08.2004, the learned trial Court dismissed the application. Hence, this appeal before this Court,

(2.) MR . Rajesh Choudhary, the learned counsel for the appellant, has vehemently contended that the appellant had sought the divorce on two grounds, namely, cruelty and desertion on the part of respondent -wife. According to the learned counsel, the learned Judge has erred in concluding that merely because the respondent -wife was pregnant prior to her marriage, as such, the said act does not come within the definition of "cruelty". The learned Judge has overlooked the fact that the pregnancy was never revealed to the appellant prior to the marriage. Moreover, any husband would be shocked to know that before the marriage, his wife has been impregnated by another man. The fact that a wife was not chaste prior to her marriage would mentally shock and agonize the husband. Therefore, "cruelly" on her part is writ large. Furthermore, the learned Judge has failed to appreciate the fact that subsequently she had lodged a criminal case under Sec. 498A and 406 IPC against the husband. In that case, he has already been acquitted. Thus, she had falsely implicated the husband in a criminal case. The allegation made by her certainly tantamount to cruelty. Therefore, according to the learned counsel, the impugned judgment deserves to be quashed and set aside.

(3.) IN rejoinder, the learned counsel for the appellant has contended that in the criminal case, the parents of the respondent -wife have clearly admitted the fact that their daughter had delivered a child within six months of the marriage. Moreover, Mr. Sheyobux (P.W.8), an independent witness, had already testified that the respondent -wife had delivered the child within six months after her marriage. Mr. Sheyobux has not declared as a hostile witness. Therefore, the prosecution, in that case, was, bound by his testimony. According to the learned counsel once the admission has been made by the wife's side, there was no need to prove the factum of pregnancy and the fact of delivery of a child within six months of the marriage.