KISHENLAL Vs. PRABHU

JUDGEMENT

(1.) THIS is a civil regular second appeal by the plaintiff Kishenlal in a suit for 'declaration which was decreed by the trial Court but on appeal dismissed by the learned Senior Civil Judge, Jaipur City, by his judgment dated 24-4-1961.

(2.) THE material facts leading upto this appeal are these. It is common ground between the parties that the plaintiff (husband) and the defendant (wife) were married to each other when they were both minors of about six or seven years of age. According to the plaintiff, this marriage took place on 20-4-1940. The plaintiff's case then is that his parents sent for the defendant to live in their house when she had reached the age of 13 years and she came but she did not allow him to consummate the marriage and soon left for her parents' house. Thereafter the defendant's mother died near about 1948 and the defendant started living with her maternal grand-mother. The case of the plaintiff further is that the defendant developed an illicit intimacy with one Kallu who lived in the neighbourhood of her grand-mother's house; the plaintiff tried his utmost to bring her to reason but she was adamant. Thereupon, according to the plaintiff, he complained to the caste panchayat and as there was a custom of divorce in their community, a meeting of the Panchayat was called on 6-11-1952. At that meeting, the defendant and her grand-mother were summoned by the Panchayat and the Panchas tried their level best to create rapprochement between the parties but the defendant resolutely refused to go to the plaintiff's house and live with him, and, therefore, the Panchas granted him a divorce. It may be mentioned at this place that according to the averment made in paragraph 7 of the plaint, the defendant had herself submitted to the Panchayat that she would have to lead a very unhappy life in her Sasural and therefore, the divorce be allowed to her. Relying on this divorce which was allegedly granted to him by the Panchayat. the plaintiff took a second wife on 4-71957. The case of the plaintiff in a nut-shell, therefore was that the defendant had ceased to be his wife from 6-11-1952, when the divorce had been granted to him from her by the taste Panchayat The plaintiff further explained that the occasion for the institution of the present suit arose because in the meantime the defendant had made an application for grant of maintenance against him under Section 488 cr. P. C. and that application had succeeded right upto the High Court But by its order dated 10-9-1958, this Court had left him free to file a suit if he liked to obtain a declaration that be had divorced his wife eight years ago as alleged by him, in which case the order of maintenance passed by the criminal Court would become inoperative. Consequently, the plaintiff filed the suit out of which this appeal arises on 29-10-1958.

(3.) THE defendant resisted the suit. The principal pleas raised by her were that there was no custom of divorce in her community and further that neither the panchas had granted any divorce to the plaintiff nor she had given her consent to the same.