IN THE HIGH COURT OF JHARKHAND AT RANCHI

First Appeal No.46 of 2016

Kumari Pooja @ Pooja Kumari

....

Appellant

Versus

Nandan Kumar @ Munna

....

Respondent

CORAM:

HON’BLE MR. JUSTICE H.C. MISHRA

HON'BLE MR. JUSTICE DR. S.N. PATHAK

For the Petitioner

:

Mr. Sheo Kumar Singh, Advocate

For the Respondent

:

Mr. Shailendra Kr. Tiwari, Advocate

-----

06/6.02.2017

Heard learned counsel for the appellant and learned counsel for the

respondent.

2.

The appellant is aggrieved by the ex-parte Judgment and Decree dated

12.2.2016 passed by the learned Principal Judge, Family Court, Garhwa, in M.M.

Case No.37 of 1995, whereby, the marriage between the parties has been

dissolved by a decree and divorce, under Section 12(1) of the Hindu Marriage Act.

3.

The respondent husband had filed the suit for decree of divorce under

Section 12(1) and 13(1) of the Hindu Marriage Act, stating therein that the

marriage between the parties had been solemnized on 20.6.2014. On 21.6.2014,

he found that the abdomen of his wife was very large and on being asked, she

stated that it was due to some illness. Thereafter, she went back to her father's

place, where on 2.1.2015, the appellant wife gave birth to a female child. It is the

case of the petitioner-respondent that his wife was pregnant at the time of

marriage with someone else than the petitioner-respondent and this fact was

concealed at the time of negotiation of the marriage. After the birth of the child, it

was mutually agreed between the parties to return all the marriage gifts and to

sever the relationship, for which a document was also prepared and thereafter, the

appellant-wife went back to her parents' place with her belongings. With these

averments, mainly with the averment that the wife was pregnant at the time of

marriage with some other person, not known to the petitioner-respondent, the suit

for dissolution of marriage was filed in the Court below.

4.

Upon notice, the respondent appellant appeared in the Court below and

she filed her W.S. also. The impugned Judgment shows that the case was sent

for mediation between the parties, but the matter could not be settled as the

respondent appellant did not appear before the Mediator. It also appears from the

impugned Judgment that thereafter, the respondent appellant, did not appear in

the Court below also, due to which the matter proceeded ex-parte and she did not

cross examine any witness, examined on behalf of the petitioner-husband, nor she

adduced her evidence.

5.

Four witnesses were examined on behalf of the petitioner-respondent in the

Court below and they proved the fact that the female child had been born to the

wife within six months thirteen days of the marriage. The document, which was

prepared for returning all the marriage gifts on severing the relationship, was also

-2-

proved as Exhibit–1 in the Court below. On the basis of these evidence, the Court

below found that the appellant-wife was pregnant at the time of her marriage by

some person, other than the petitioner-respondent, and accordingly, decreed the

suit with the decree of divorce, dissolving of marriage under Section 12(1) of the

Hindu Marriage Act.

6.

Learned counsel for the appellant has submitted that the impugned

Judgment and Decree passed by the Court below is absolutely illegal, in as much

as, adequate opportunity was not given to the appellant in the Court below to

cross-examine the witnesses of the petitioner respondent and to adduce her own

evidence. Learned counsel accordingly, submitted that the impugned Judgment

and Decree cannot be sustained in the eyes of law.

7.

Learned counsel for the respondent on the other hand has opposed the

prayer and has submitted that in view of the findings given by the Court below,

there is no illegality in the impugned Judgment and Decree passed by the Court

below.

8.

Having heard learned counsels for bot