KAMLA Vs. JAGDISH PRASAD

JUDGEMENT

(1.) THIS is a Civil Miscellaneous Appeal arising out of decree and judgment passed by the learned District Judge, Alwar on 28 -8 -1982 in petition No. 19/80 filed under Sections 12 and 13 of the Hindu Marriage Act for nullity of marriage and divorce by the appellant petitioner. The case of the appellant is that she was married with respondent on 2 -7 -1975 according to the Hindu customs. It is stated that at the time of her marriage, she was of 11 years of age and before attaining the age of 18 years at the time of filing the petition for divorce and praying for declaration of the marriage as nullity, the appellant had repudiated the marriage with respondent. It was further stated that the respondent was not mentally balanced at the time of marriage and even thereafter and that he was suffering intermittently from mental disorder to such an extent that the appellant could not reasonably be expected to live with the respondent. The respondent used to strangulate the neck of the appellant on account of his mental disorder and was cruel to the appellant and used to beat her and turn her out from his house in the night. Therefore, it became impossible for the appellant to reasonably reside with the respondent. It was also pleaded that after the marriage she remained for two -three days with the respondent and came to her parent's house. After two years Gauna Ceremony was performed and she again went to the respondent's house and lived, there for, one month. The appellant last resided continuously for a period of 6 months with the respondent prior to filing of petition for divorce. During this period of stay with the respondent he did not co -habit with the appellant and did not perform any sexual intercourse. Though the respondent many times made attempts to do the sexual intercourse but he could not do so as there was no erection and the respondent was, therefore, impotent. It has also been stated that the respondent said to the appellant that he was impotent and had not desire to marry but on account of compulsion and pressure of respondent's family members he had to marry her. It was also sated that the respondent had undergone a treatment of impotency but there was no improvement and he continued to be an impotent person. Therefore, the appellant on 23 -7 -1980 filed a petition for divorce and prayed for decree of divorce and declaration for repudiation of the marriage. The respondent contested the petition and denied the allegations made by the appellant against him. It was pleaded by the respondent that in the month of July, 1976, the appellant had pregnancy of three months and she all of sudden had abortion. It was further stated that at the time of marriage, the appellant was 18 years old and that respondent was of sound mind at the time of marriage and was more than 27 years of age at that time. He has discharged all marital obligations with the appellant and lived like husband and wife and performed sexual intercourse with her. He has also stated that he had not lost the mental balance and had never beaten or treated appellant with cruelty. He has also asserted that he was fully potent and that he did not undertake any treatment on this account. He, therefore, prayed that the petition of the appellant for divorce be dismissed.

(2.) THE learned Counsel for the petitioner appellant has urged that he bases this appeal on three counts, i.e., age of minority at the time of marriage (Issue No. 2), cruelty of the respondent after marriage (Issue No. 3) and impotency of the respondent (Issue No. 4).

(3.) REGARDING issue No. 2, the learned Counsel for the appellant has stated that the marriage took place on 2 -7 -1975 and the petition for divorce was filed on 30 -7 -1980. In para 7 of the petition, the appellant has stated that at the time of marriage her age was 11 years and no consent from her was obtained regarding her marriage with the respondent which was done against her wishes. It has been further stated that as she was only 11 years old at that time she had no power to think over on such important matters like marriage. Now she has grown and after considering the whole matter she has come to the conclusion that it is not possible for her to live as a wife of the respondent and she repudiated the marriage. Her age is not yet 18 years, therefore, according to law she is entitled to repudiate the marriage. The respondent in his reply in para 7 has stated that the marriage was performed with her consent and also consent of her parents and that she was not 11 years old at the time of marriage. He has stated that now she is more than 23 years old and when she lived along with him for the last time in 1979 before Deewali for 10 -11 days he had sexual relations with her. Under Section 13(2)(iv) it is laid down that a wife may present petition for dissolution of her marriage on the ground that her marriage (whether consumated or not) was solemnised before she attained the age of 15 years and she had repudiated the marriage after attaining that age but before attaining the age of 18 years.