RAJU ALIASRAJENDRA Vs. RATAN

JUDGEMENT

(1.) THIS appeal is directed against the Judgment of the learned District Judge, Jodhpur dated 23. 1. 1987 whereby the learned District Judge has dissolved the marriage of the appellant and respondent under s. 13 (2) (iv) of the Hindu Marriage Act, 1955 (for short 'the Act' ).

(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are that the wife-respondent filed an application for dissolution of her marriage with the husband-appellant on July 3,1985 pleading, inter-alia, that she was married with the husband appellant Raju @ Rajendra before about five years, i. e. at the time of the death of her great-grand mother, that after marriage, she has never gone to her matrimonial home meaning thereby that her marriage has not been consummated, that even now, her age is 17 years and she has passed matriculation; that she is in a position to understand what is good for her and what is bad for her and that she does not like to keep her marital relations with the husband-appellant and, therefore, a decree for dissolution of marriage be passed in her favour. She has further stated that she gave a registered notice to the husband-appellant for dissolution of marriage on 13. 6. 1985 but that notice has been returned as refused. She has contended that when she was married, she was below 15 years and when she repudiated the marriage, she did not attain the age of 18 years and, therefore, a decree be passed.

(3.) WHETHER the marriage was consummated or not is immaterial and beside the point, ft is immaterial whether the repudiation was made before the Marriage Laws (Amendment) Act, 1976 (for short' the Amendment Act") came into force or thereafter. Even if the repudiation was made before coming into force the Amending Act, the wife can take advantage of this provision in such a petition and can be granted a decree for divorce under s. 13 (2) (iv) of the Act. Now, we proceed to examine whether these three ingredients have been proved by the wife-respondent. It is admitted case of the parties that she was married when she was below 15 years. P. W. 2 Mst. Ratan has stated that at the time of her marriage, she was aged about 11 years as she was born on 1. 2. 1969. Her father P. W. 3 Kishanlal has stated that Mst. Ratan was married before about six years. He was examined on 4. 4. 1986 and, therefore, according to him, Mst. Ratan's marriage was performed somewhere in April 1986 and so, if her date of birth is 1. 2. 1969, she was definitely 11 or 12 years old at the time of her marriage P. W. 4 Mangilal has stated that Mst. Ratan was married before about 6 years and he cannot say what was the age of Mst. Ratan at the time of her marriage. O. P. W. 1 Kishnaram has stated that at the time of the marriage of Mst. Ratan, she was 13 years old. To the same effect is the statement of O. P. W. 2 Bherulal, who happens to be the father of Raju & Rajendra Kumar. O. P. W. 3 Rajendra Kumar has stated that at the time of his marriage, Mst. Ratan was aged about 13-14 years. Thus, it has definitely come in evidence that when Mst. Ratan was married she was definitely below 15 years.