Decided on October 27,1980

RADHADEVI Respondents

Referred Judgements :-



- (1.)THIS is an appeal under section 28 of the Hindu Marriage act, 1955 (hereinafter referred to as the Act), against the Judgment and decree dated 27-4-1979, passed by the District Judge, Vidisha, in Civil Suit no. 3-A /76, whereby the suit of the appellant under section 12 (d) of the Act has been dismissed.
(2.)THE facts giving rise to this appeal are as under. Ghanshyam chaturvedi is the plaintiff and Radhadevi alias Panbai daughter of Bhaiyalal is the defendant. The plaint allegations are that on 27-2-1975, the plaintiff and the defendant were married and on 1-3-1975, the plaintiff and the defendant came to Vidisha. On 2-3-1975, they celebrated their honey-moon and it is alleged in the plaint that on 2-3-1975, the plaintiff had intercourse with the defendant his wife. The defendant stayed with him for eight days and went back to her parents. On 30-4-1975, the plaintiff brought her back to vidisha, but after staying for fifteen days, the defendant went to her parents with her brother. She took along with her the ornaments which were given to her in marriage. On 25-8-1975 when the plaintiff went to his wife to bring her back, she did not come before him and on the same day, she gave birth to a well developed child. From 2-3-1975 to 25-8-1975, there is an interval of l75 days only. Therefore, the plaintiff was surprised to hear that his wife has given birth to a well-developed child and he enquired about this matter with the parents of the defendant, but they had no reply. As the plaintiff did not get any reply, he went back to Vidisha on 26-8-1975, leaving the defendant with her parents. On 25 8-1975, when the plaintiff-husband came to know that his wife was pregnant by somebody else, he never had any sexual relations with his wife after 25-8-1975. That is to say, the plaintiff and defendant never continued their relationship of husband and wife after 25-8-1975 so as to condone the lapse on the part of the defendant. Further, it is alleged in para 8 that the defendant was pregnant at the time of marriage and the conception was by somebody else as the plaintiff and the defendant consummated the marriage for the first time on 2-3-1975 and they had no sexual relationship before that date. The plaintiff was unaware of this fact and for the first time he came to know on 25-8-1975 that the defendant is pregnant by somebody else. In para 9 of the plaint, it is further submitted that as the defendant wife was pregnant at the time of marriage and as husband was unaware of this fact, he has filed this petition for declaration that the marriage is a nullity because of the facts mentioned above. The other allegations in the plaint are not material for decision of this case.
(3.)DEFENDANT-WIFE has filed the written statement, accepting that on 27-2-1975, she was married to the plaintiff, but the allegation of the plaintiff that for the first time intercourse took place on 2-3-1975 was denied and she has submitted that the intercourse for the first time took place on 7-2-1975 when the plaintiff came to see the defendant. It is further submitted that on 7-2-1975 when the plaintiff came to the house of the defendant, he expressed the desire that he should have a talk with the defendant in privacy and if he is satisfied, then alone, he will give his approval. The plaintiff, in the night on 7-2-1975, met the defendant and expressed his desire that they should have an intercourse; The defendant showed her disapproval to this, saying that as long as they are not married, the suggestion of the plaintiff cannot be accepted. The plaintiff said to her that now they have promised each other to become husband and wife and the marriage will take place according to the Hindu rites, but from that day, they have become husband and wife. Therefore, believing the words of the plaintiff, she submitted to the desire of the plaintiff and the conception took place. She has denied the suggestion that she was pregnant at the time of the marriage. But, she has accepted that she has given birth to a child on 25-8-1975. She has further alleged that as the child was weak, delivery took place after six months and eleven days of the marriage. The plaintiff has filed the application to suppress the fact which is not approved by the society that he had intercourse with the defendant before marriage. But, in fact, the father of the child was the plaintiff himself and the child was born after seven months and nine days after she had intercourse with the plaintiff. As to the return of ornaments given to her at the time of marriage, the defendant has said, they were already with the plaintiff. On the basis of these allegations and denials, the trial Court framed the following issues :-
1. Whether the plaintiff went to see the defendant on 7-2-1975 for the first time?. . . Yes.

2. Whether the plaintiff met the defendant the same night and had an intercourse with her in4spite of her protest?. . . Not proved.

3. Whether the plaintiff had an intercourse with the defendant on 2-3-1975 for the first time?. . . Yes.

4. Whether the defendant was pregnant at the time of marriage and if so, what is its effect on the suit?. . . Not proved.

5. Whether the defendant gave birth to a child within 175 days of her intercourse with the plaintiff for the first time?. . . Yes.

6. Relief and costs?. . . Application dismissed with costs.

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