MANJU Vs. PREM KUMAR

JUDGEMENT

(1.) THIS appeal under Section 28 of the Hindu Marriage Act (No XXV of 1955) (for short 'the Act' hereinafter) has been filed by the wife who was non -petitioner against the decree dated August II, 1981 of the Addl. District Judge No. 2, Jodhpur by which he declared the marriage between the husband -petitioner (respondent) and the wife non -petitioner (appellant) as voidable and annulled it by a decree of nullity under Section 12(1)(d) of the Act. The petitioner -respondent and the non -petitioner appellant will be referred to hereinafter as the husband and the wife respectively.

(2.) THE facts leading to this appeal may succinctly be stated as under: The husband filed a petition under Section 12(1)(d) of the Act 12(1)(d) of the Act in the Court of District Judge, Jodhpur on November 26, 1979. The marriage between the husband and the wife was solemnized according to Hindu rites on June 29, 1979 at Nagaur. Both the husband and wife lived together at Jodhpur. The wife gave birth to a female child on November 18, 1979 in Ummaid Hospital, Jodhpur. She remained as an indoor patient in connection with the delivery from November 18, 1979. The case of the husband is that the wife was at the time of the marriage, pregnant by some person other than husband and that he was ignorant about it at the time of the marriage. The female child that was. born on November 18, 1979 was normal and alive. The delivery was normal. It was alleged that the fact that the wife was pregnant at the time of the marriage was concealed by her as well as her parents and on account of the fraud, the husband married the wife. The petition for annulment of the marriage was filed on the ground that the marriage between the parties was voidable and, therefore, it should be annulled by the court by a decree of nullity under Section 12(1)(d) of the Act. The petition was contested by the wife by filing a reply on May 29, 1980. The case as disclosed in the reply by the wife was that the female child born on November 18, 1979 was out of the union of the parties. It was pleaded that knowing well that the wife was pregnant and she was to deliver a child, the husband got her admitted in the Ummaid Hospital on November 18, 1979 and that even prior to that she was shown to the doctor three to four times in connection with her pregnancy. As the husband had not disclosed about the sexual relations between them prior to the marriage before his family members and friends, he has filed this false petition. The wife has come forward with a case as is apparent from paras 4 and 6 of the reply that the husband as well as the members of his family were well aware that it was on account of the pre -marital relations between the parties that the wife remained pregnant and, therefore, an early date of marriage was fixed and solemnised. She denied the facts that she suppressed the fact of pregnancy. It was alleged that the marriage had taken place with consent. Before framing issues arising out of the petition and the reply thereof, a rejoinder was filed by the husband controverting the allegations made by wife in the reply on July 23, 1980. The following issues were framed on July 23, 1980 by the District Judge:

(3.) IN view of the findings arrived at in respect of issues No. I, 2 and 3, the learned Addl. District Judge to whom the petition was transferred for disposal, held the marriage between the parties to be voidable and annulled it by a decree of nullity under Section 12(1)(d) of the Act. Aggrieved, the wife has filed this appeal under Section 28 of the Act.