Ajay Rastogi, J.

1. The present misc. appeal is directed against the judgment & decree dated 29.08.2016 rejecting application filed by the appellant-wife u/Sec.13(2)(iv) of the Hindu Marriage Act, 1955 and the only clog to her claim was that she has repudiated her marriage after attaining the age of 18 years, hence is entitled for decree of divorce.

2. The claim of the appellant-wife is that she has repudiated the marriage solemnized before attainment of 15 years of age, after attaining that age but before attaining the age of 18 years but these facts have not been taken into consideration, despite specifically pleaded by the appellant before the ld.Family Court, under the judgment & decree dated 29.08.2016 in Case No.55/2016, which is the subject matter of appeal.

3. Indisputed facts which have been recorded by the ld.Family Court are that the appellant was 14 years of age at the time of her marriage solemnized with the respondent on 16.02.2010 according to the Hindu rites & customs. In fact, the appellant along with her elder sister Sunita got married with two real brothers i.e. the marriage of her sister Sunita was solemnized with Rajulal, the elder brother of the respondent, and the present appellant's marriage was solemnized with the respondent-Bhagwan Sahay, who is younger brother of Rajulal. It has been specifically pleaded by the appellant in her application seeking divorce/repudiation of her marriage that she had through-out stayed with her parents and not even once visited to her matrimonial home and their marriage was never consummated and immediately after attaining the age of majority, express notice was sent for repudiation of marriage on 09.09.2015 and thereafter the divorce petition came to be filed on 05.10.2015.

4. After service of notice, written statement was filed by the respondent and he made a bald statement which was completely evasive. Although in the additional facts it was stated that for some time they had been living together, also have physical relations and their marriage was consummated but on the evidence which came on record and considered by the ld. Family Court four issues were framed & we consider it appropriate to indicate the issues, which read ad infra:-

^^1- D;k izkFkhZ;k dk foi{kh ds lkFk fookg 14 o"kZ dh vk;q esa lEiUu gqvk Fkk vkSj og dHkh Hkh foi{kh ds lkFk ugha jgh\

2- D;k izkFkhZ;k us bl fookn dks ekuus ls bUdkj dj fn;k gS\

3- D;k foi{kh ds lkFk mldk fookn Fkk\

4 vuqrks"kA**

5. The finding was recorded by the ld.Family Court on issue No.1 and it was observed that at the time when the marriage was solemnized, the appellant-wife was 14 years of age and throughout she is residing with her parents and never visited once to her matrimonial home and her marriage was never consummated and the issue No.1 was decided in favour of the appellant-wife.

6. As regards issue No.2 is concerned, it was observed that although the marriage of the appellant was solemnized at the age of 14 years but there is no express repudiation of marriage before she attained the age of 18 years even if all the facts are taken to correct, still in the absence of express repudiation of marriage before attaining the age of 18 years, which is the requirement of Section 13(2)(iv) of the Act, 1955, the issue No.2 was decided against the appellant-wife.

7. As regards issue Nos.3 & 4 are concerned, they may not be relevant for the present purpose.

8. Counsel for the appellant submits that the ld.Family Court has committed a serious error in recording its finding in reference to the issue No.2 for the reason that once the issue No.1 has been decided in favour of the appellant-wife holding that her marriage was solemnized when she was a child of 14 years and she is residing through-out with her parents and her marriage was never consummated and she has never stayed even for a single day at her matrimonial home, this itself clearly indicates a case of implied repudiation of marriage and that was sufficient to hold that repud