Point of Law: Section 13A of Hindu Marriage Act reads as alternate relief in divorce proceedings.

JUDGMENT :

Sophy Thomas, J.

These appeals arise out of the judgment in OP(HMA) No.1161 of 2013 on the file of Family Court, Attingal. The husband filed the OP for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground of matrimonial cruelties. The Family Court dismissed the OP, but granted a decree for judicial separation. Moreover, without any pleadings or prayer, the Family Court declared that the petitioner is the biological father of the child Neelina and awarded compensation of Rs.10 lakh to the child, though the child was not a party to the proceedings. Aggrieved by the impugned judgment and decree, the husband filed Mat.Appeal No.148 of 2014, and aggrieved by the decree for judicial separation, the wife filed Mat.Appeal No.245 of 2014.

2. The brief facts could be stated as follows, referring the husband as the appellant and the wife as the respondent:

The marriage between the appellant and respondent was solemnised on 29.02.2008 as per Hindu rites and custom. They were familiar to each other even prior to their marriage, as their families were residing in the same housing colony. After marriage, they started living together in the house of the husband at Chirayinkeezhu. The respondent refused to consummate the marriage on one reason or the other, and later the appellant realised that, she was having an illicit relationship with her own brother. After marriage, when the couple reached the house of the wife, she slept in the room of her brother, and the husband was asked to sleep in a separate room. She left her matrimonial home, refusing sexual relationship with him, and after about one month, she came back and declared that she was pregnant. Since their marriage was not consummated, he was not willing to accept her pregnancy, and then she told him that, she married him for namesake, to get a father for her child. On the next day morning, she threw away the thali chain at his face, and left the house. Since he was not able to bear the cruel nature and attitude of the respondent, he went abroad on 10.01.2009 and before going, she came to his house and told him that, after delivering the child, she would agree for mutual divorce and she would never claim paternity of the child on the appellant. But, she did not keep her word, and was not ready for a joint petition for divorce even after delivery. So, he approached the Family Court for getting divorce, on the ground of matrimonial cruelties.

3. Even before the respondent filed her written statement, the appellant filed IA No.2242(a) of 2012 for conducting a DNA test to prove that, he was not the biological father of the child delivered by the respondent. Ext.C1 report was received from Rajiv Gandhi Centre for Biotechnology stating that, the appellant is the biological father of the child Neelina and the respondent is the biological mother.

4. The respondent filed written statement contending that, the allegations of matrimonial cruelties are absolutely false, and she had no illicit connection with her brother, and the child Neelina was the child born in her lawful wedlock with the appellant. The respondent is a Doctor by profession, and she was a loving wife and she wanted to lead a happy married life with her husband. Only due to the unwanted interventions from the part of the mother of the appellant, they could not live peacefully, and still, she hopes that, if the appellant comes out of his misunderstandings, there is every chance for them to lead a happy family life.

5. After formulating the issues, the parties went on trial by examining PW1 from the side of the appellant and DW1 from the side of the respondent. Exts.A1 and A2 series and Ext.C1 were marked.

6. On analysing the facts and evidence, the Family Court found that the matrimonial cruelties alleged against the respondent were not proved. The allegation of illicit relationship for the respondent with her own brother, was found baseless. So, his prayer for divorce was rejected, but