- (1.) THIS is an appeal by the husband arising out of a petition under Section 27 of the Special Marriage Act here inafter referred to as the Act.
(2.) THE material facts giving rise to this appeal are that the appellant presented a petition under Section 27 of the Act seeking divorce from his wife Smt. Chandrawati, who figures as a respondent before me. The ap pellant Sri Aulvin V. Singh and Smt. Chan drawati, respondent, are admittedly Christians and they were married in a Christian Church according to Christian rites on the 2nd May, 1957. The appellant alleged that they lived happily together as husband and wife till the 5th September, 1964, when all of a sudden the respondent for no rhyme or reason went away to her father's place. It was alleged that the appellant awaited her return for a few months but when she did not return back to the matrimonial home he made all efforts to bring her to his place but in vain. The petition was founded on the allegation of de sertion by the wife without any cause for more than three years. The appellant prayed for a decree for divorce and dissolution of marriage. The respondent admitted that she had been married to the appellant according to Christian rites in a Christian Church on the 2nd May, 1957. She admitted that she had lived happily with her husband for a few years but asserted that thereafter the appellant started ill-treating her because she had failed to bear any child to him. Her barrenness, according to the respondent, dis pleased the appellant who started beating her off and on. It was pleaded by the respon dent that the appellant deprived her of 'he marriage-ring and the marriage-certificate which she had received at the time of the parties marriage and ultimately on the 5th September, 1964, after giving her a thrashing, aided by his younger brother threw her out of his house commanding her not to return again. According to the respondent, she was in consequence compelled to take shelter at her father's house. The respondent denied that her husband had ever made attempts to take her back from her father's house. She claimed that she had never deserted her hus band and pleaded that she was prepared to live with the appellant as his wife provided he no longer ill-treated and beat her. It was contended that since the parties were Chris tians and had been married under the provi sions of the Indian Christian Marriage Act, (Act No. XV of 1872), the petition for divorce should have been filed under Sec. 10 of the Indian Divorce Act (IV of 1869) and the petition under Section 27 of the Act was not maintainable.
(3.) THE trial Court framed the fol lowing issues:- "(1) Whether the respondent has desert ed the petitioner without any cause for more than three years immediately preceding the presentation of the present petition ? If so its effect? (2) Is the petition not maintainable as framed ?" Both the issues were decided by the learned District Judge, Dehra Dun, against the ap pellant. It was held that as the evidence exists on record it could not be said that the respondent had herself left the roof of her husband's house, the fact of the matter being that the appellant himself had turned her out of his house because she had not borne any child and he wanted to remarry and so started troubling the respondent. The trial Court recorded a finding that it was the husband who had made the life of his wife miserable by neglecting her and beating her off and on and ultimately on the 6th September, 1964, forcibly turned her out of the matrimonial home and it was then that the respondent went to live at her father's house. On Issue No. 2, it was held that the scheme of the Act disclosed that its provi sions will apply only to those cases where marriage had been solemnized under the Act or where marriages celebrated under other forms have been registered under the Act. The view was taken that since the parties had neither been married in accordance with the provisions of the Act nor had their man-in be been registered under Section 15 of the Act, the appellant was not entitled to sue for divorce of his wife under Section 27 of the Act. In the result the petition was dismiss ed. Aggrieved by the decree of the trial Court, the appellant has appealed.;