A decree of divorce cannot be granted on the ground of a child being born prior to nine months from the relationship before marriage as there is no provision available in Section 13(1) of the Hindu Marriage Act, 1955.

Headnote:
Divorce - Allegation of Illicit Relationship - Hindu Marriage Act, 1955, Section 13(1) - The court held that a decree of divorce cannot be granted on the ground of a child being born prior to nine months from the relationship before marriage as there is no provision available in Section 13(1) of the Act. The petitioner could have filed a petition for declaring the marriage void under Section 12(1)(d) of the Act, but the case was not filed within one year of marriage and vital dates were not disclosed. The court also found that the petitioner failed to produce cogent evidence of cruelty, and the suit was filed after about 11 years of marriage.
Fact of the Case:

The appellant filed a divorce case alleging that the respondent had given birth to a child from an illicit relationship before marriage and had sold joint family property. The respondent denied the allegations.
Finding of the Court:

The court found that the allegations made by the appellant were not substantiated and that there was no provision for granting a decree of divorce based on the alleged grounds. The court also held that the petitioner failed to produce evidence of cruelty and that the suit was filed after about 11 years of marriage.
Issues: The main issues were whether the case was maintainable, whether the petitioner had a valid cause of action, whether the respondent had been cruel, and whether the respondent had an illicit relationship and gave birth to a child before nine months of marriage.
Ratio Decidendi: The court held that a decree of divorce cannot be granted on the ground of a child being born prior to nine months from the relationship before marriage as there is no provision available in Section 13(1) of the Act. The court also found that the petitioner failed to produce cogent evidence of cruelty, and the suit was filed after about 11 years of marriage.
Final Decision: The appeal was dismissed as the court found no reason to admit the appeal.

Judgement Key Points

Based on the provided legal document, the key points are as follows:

A decree of divorce cannot be granted solely on the ground that a child was born prior to nine months from a relationship before marriage, as there is no provision in Section 13(1) of the Hindu Marriage Act, 1955, that permits divorce on this basis (!) (!) .
The petitioner could have filed a petition to declare the marriage void under Section 12(1)(d) of the Act, alleging that the respondent was pregnant by another person at the time of marriage, but such a case must be filed within one year of marriage, which was not done in this case (!) (!) (!) .
The court emphasized that allegations of illicit relationships and birth of a child prior to nine months from marriage do not constitute grounds for divorce under Section 13(1) of the Act, as no such provision exists (!) (!) .
The petitioner failed to produce cogent evidence of cruelty or any other valid grounds for divorce. The allegations were not substantiated, and the case was filed after a significant delay, approximately 11 years after marriage (!) (!) (!) .
The court noted that mere allegations without supporting evidence or specific instances of cruelty are insufficient to justify divorce (!) (!) .
The absence of disclosure regarding the identity of the person with whom the respondent was allegedly in illicit relationship, as well as the lack of vital dates concerning the child's birth and the petitioner’s knowledge thereof, weakened the case for voiding the marriage (!) (!) .
The court held that the procedural requirements under the relevant sections of the Act, including timely filing and disclosure of vital facts, were not met, which further invalidated the grounds for divorce claimed by the petitioner (!) (!) .
Ultimately, the court dismissed the appeal, affirming that the grounds presented did not warrant a decree of divorce under the applicable provisions of the Hindu Marriage Act, 1955 (!) .

In summary, the court concluded that the allegations made by the petitioner did not fall within the permissible grounds for divorce under the Act, and procedural lapses further invalidated the case.

JUDGMENT :

RAVI RANJAN, J.

1. Heard learned counsel for the appellant on the point of admission of this appeal.

2. This appeal is directed against the judgment dated 7.2.2016 passed by the Principal Judge, Family Court, Vaishali at Hajipur. A Divorce Case No. 216 of 2012 was filed by the petitioner-appellant for dissolution of marriage with the sole opposite party-respondent.

3. According to the case of the petitioner-appellant, he was married with the opposite party-respondent on 20.01.2001 at Mahavir Temple, Police Line, Mali Ghat, Muzaffarpur. The wife came with him at her matrimonial place. On 28.01.2001 the brother of the opposite party-respondent came for ‘Vidai’ of his sister and took her to her parents’ house. It is stated in the petition that the stay of opposite party-respondent in her matrimonial house was pleasant for the petitioner and his family members. Subsequently, on 14.04.2001, the petitioner brought his wife back at his place, however, this time, during the stay of the respondent at the house of the petitioner-appellant was not good in comparison with her earlier stay as her nature appeared totally different and changed. It is alleged that on 28.04.2001, without any rhyme and reason and in the absence of the petitioner-appellant and without his consent, she went to her ‘Naihar’ with her brother along with all her belongings. The petitioner-appellant, thereafter, made several attempts to bring her back but she was not ready. Subsequently, the petitioner-appellant came to know that the opposite party-respondent was having illicit relation with some other person and out of that relationship, she gave birth to a female child even before completion of nine months after the marriage. It is further alleged that the opposite party-respondent had sold the joint family property through registered sale deed dated 27.03.2012 though a building was standing thereupon and was let out to a person and a case for eviction was filed as the place was required for personal necessity of the petitioner-appellant himself.

4. Upon the aforesaid factual matrix, the concerned matrimonial case was filed. The opposite party appeared and filed written statement in which she admitted the marriage but had denied that her child was from another person and was born before completion of nine months of her marriage. She has alleged that after birth of female child, the petitioner-appellant along with his family members became angry and had shown hatred towards her. She has further stated that the land which she had sold was given to her under Bakhudaha Batwara.

5. On appreciation of the aforesaid pleadings of both the parties, following issues were framed by the court below:-

(i) Whether this case is maintainable?

(ii) Whether the petitioner has got valid cause of action to bring this suit?

(iii) Whether the O.P. has been cruel towards the petitioner?

(iv) Whether O.P. had illicit relation with another person before her marriage and she was pregnant at the time of her marriage and gave birth to a female child within the 9 months of her marriage?

From perusal of the aforesaid, apparently the issue nos. (iii) and (iv) were the main issues for adjudication of the case.

6. From perusal of petition/complaint, it appears that the petitioner-appellant has alleged that the opposite party-respondent had given birth to a female child even before completion of nine months and he later on came to know that she was having illicit relationship with some other person, however, the name was not disclosed either in the pleading or in his deposition.

7. Now, it has to be seen as to whether such allegation can be raised for grant of decree of divorce under Section 13 (1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). For better appreciation, the provision contained in Section 13 (1) of the Act are extracted as under:-

13. Divorce - (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either

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2018 Supreme(Pat) 546

A decree of divorce cannot be granted on the ground of a child being born prior to nine months from the relationship before marriage as there is no provision available in Section 13(1) of the Hindu Marriage Act, 1955.

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