( 1 ) THIS appeal under Section 28 of the Hindu Marriage Act (1955) has been preferred by the wife/appellant, aggrieved by the judgment and decree dated 15-9-1980, passed by the District Judge, Gwalior.

( 2 ) PARTIES are Hindu, married at Lashkar on 23-9-1961. Wife/applicant filed an application for divorce from the respondent husband, on the ground that she was below 15 years of age, when married, but before she became 18 years of age, she repudiated her marriage and hence, a decree for divorce be granted under Section 13 (2) (iv) of the Hindu Marriage Act, 1955 (hereinafter referred as Act ). Respondent husband, no doubt, denied and contested the prayer. Trial Court answered the relevant issues in favour of the respondent husband and dismissed the application of the appellant with costs.

( 3 ) THE case of the appellant in the petition was that her date of birth is 23-1-1961 and she was married on 21-4-1975, hence she was of merely 14 years 11 months and 8 days of age on the date of marriage. After 4 years 5 months and 4 days, she filed this application on 25-9-1979. According to her pleading, she did not accept this marriage and repudiated it on 20-9-1979 when she was just below 18 years of age.

( 4 ) THE trial Court has rejected the evidence on the point of date of birth of the wife-appellant on the ground that there is a contradiction in the testimony of Pannalal (P. W. 2) and Narayan Shastri (P. W. 3 ). The contradiction pointed out by him is that, Narayan Shastri (P. W. 3) says that the horoscope Ex. P/1 was prepared by him in 1961 and it came in my (his) possession only a year and quarter back and after giving it to him Pannalal did not come to take Ex. P/1. But Pannalal (P. W. 2) says that only one and half months back it was given to Narayan Shastri and it was given to him for finding out the corresponding date. From this, the trial Court has surmised that horoscope Ex. P/1 is not old. To the trial Court, it appeared that it was prepared recently and hence fabricated.

( 5 ) ANOTHER reason for disbelieving Pannalal (P. W. 2), is that the father of the appellant is retired at the age of 58 and on the date of his evidence, he is 59 years of age and appellant was born when he was 35 or 40 years of age. According to Pannalal (P. W. 2), his eldest son was 25 years of age. From this, the trial Court draws the inference that when his son was born, he was 33 years of age. This witness has admitted that he is illiterate. From the above noted situation again to the trial Court, it appears that he is hiding the age of his sons. He has calculated every description of Pannalal and has come to the conclusion that he is telling lies. I, therefore, minutely examined, this testimony of Pannalal (P. W. 2), though he admits that he is illiterate, but has served in Telephone Department, a department of numbers. In para 3 of his statement, he has described under cross-examination, the ages of all his numerous children which was ignored by the trial Court. From it, it is apparent that the appellant who was the youngest of his children was born on or near the date given in the petition. ( 6 ) WITH regard to the horoscope (Ex. P/1) the surmises of the trial Court seem to be apparently perverse. In reaching the conclusion, the trial Court has taken the crutches of surmises. Whole evidence as a body when read and evaluated indicates that the surmies of the trial Court are not based upon the correct reading of his statement.

( 7 ) THE trial Court seems to be under the impression that the petitioner/appellant was required to prove her case beyond the limits of doubt. There seems to be a misunderstanding on the part of lower judiciary with regard to the (burden of proof in matrimonial matters. No doubt, the trial Court's views are certainly entitled to great weight and they should not be differed from unless there are strong reasons to differ. I am also aware that this court does not enjoy the advantage which the trial Court had i