Vishnudev Narayan, J.
1. This appeal at the instance of the appellant-wife has been preferred against the impugned judgment and decree dated 07.12.1999 and 19.07.2000, respectively passed in Matrimonial Title Suit No. 32 of 1993 by Shri M. Thakur. 2nd Additional Judicial Commissioner, Ranchi whereby and whereunder the Matrimonial Suit filed by respondent-husband Sadanand Das Goswami was decreed and his marriage with his appellant wife Santoshi Devi was dissolved by a decree of divorce. However, a sum of Rs. 300/- per month was allowed as permanent alimony to the appellant for her maintenance,
2. The petitioner-respondent Sadanand Das Goswami had filed the said Matrimonial Suit on 10.06.1993 under Section 13(1)(i) of the Hindu Marriage Act, 1955 [hereinafter referred to as the said Act] for dissolution of his marriage with his appellant-wife Santoshi Devi and in the alternative for annulment of their marriage under Section 12(1)(d) of the said Act.
3. The case of the petitioner-respondent, in brief, is that his marriage was performed on 20.04.1988 with the appellant according to the Hindu religion and rites at village Kundrilong PS Ichagarh District Singhbhum West and the appellant-wife came to her matrimonial home at village Gundukathartoli in his company on the following day of the marriage where they lived together as husband and wife and "Asthmangla" was held on the fourth day of their marriage in which Buda and Durga, the brothers of the appellant-wife were present and they brought the appellant to their house in village Kundrilong where she fell ill. It is alleged that his father went to her parent's house in the month of June to bring the appellant but she did not return to her matrimonial home for the reasons that she has not recovered from her illness as per request of her father and, thereafter he remained busy with cultivation work and he could not go to the parents house of his wife for Roksadi and he had sent a letter to her father requesting him to send his wife to his house before Durga Puja in the year 1988 but her father came to his house and requested his father to allow him to go to his house before Durga Puja and enjoy the Puja festival there and after Vijayadashmi he would arrange for the Roksadi for the appellant but he could not go to the house of the parent of his wife as he had fallen ill. The case of the respondent-husband further is that Durga, the brother of his wife came to his house on 16.10.1988 and informed his parents that the appellant-wife has given birth to a female child on that day which was an utter surprise for them as to how a child has been born within six months of the marriage and Aditya Kumar Das, the elder brother of the respondent-husband was sent by his father in the company of Durga to the parent's house of the appellant and on his return from there he reported to his parent that a female child has been born to the appellant-wife and, thereafter, on 21.10.1988, the father of the respondent-husband went to see the child at Kundrilong where he expressed his suspicion in the matter and asked her father to get the blood of the child examined at Ranchi or Tata and he further sent two letters on 25.10.1988 and 26.10.1988 by registered post to her father intimidating him that they had great suspicion regarding the child having been born through the respondent and her father came to the house of this respondent on 05.11.1988 and informed that the said child had died on 28.10.1988 and this information confirmed the suspicion of the respondent and his parent that the appellant-wife conceived through some other person before her marriage with this respondent. It is further alleged that the father bf the appellant wife had knowledge that the appellant had illicit connection with some persons and she had conceived before the marriage as a result of illicit intercourse but he kept the matter concealed and got the appellant married with this respondent by practicing fraud and it further transpired in the month of February, 1993 that the appellant has illicit connection with her brother-in-law. Santosh Kumar Mahanta (who was impleaded as respondent No. 2 before the trial Court on amendment). It is also alleged that his appellant wife is an unchaste woman and it is not at all desirable to keep her in his house and his prestige and position in the society has been damaged as a result of his marriage with a woman of loose character.
4. The case of the appellant wife inter alia is that after solemnisation of his marriage with her respondent-husband on 20.04.988 she had gone with him to her matrimonial home where she lived together with him for more than two and half years and only on the occasion of "Asthmangla" she along with her husband had come to her parent's house and soon, thereafter, she went back with him to her matrimonial home. Her further case is that she returned to her parent's house with her father on the eve of Makar festival in 1991 with the permission of her husband and his father and, thereafter, she was not taken back to her matrimonial home in spite of repeated requests and, thereafter, she came to her matrimonial home in the company of her father but she was not allowed to enter in her matrimonial home as a result of which she had to come back with her father to her parent's house and on that occasion she and her father were insulated and humiliated by her husband and his father and also a demand of Rs. 20,000/- for the purpose of business and a Hero Honda motorcycle was made. Her case further is that her husband and his father had taken a sum of Rs. 22,000/- from her father for starting a business and the said amount was never returned by them and further amount was also demanded and also a Hero Honda motorcycle was demanded from her father and she was tortured to put pressure on her father for providing a Hero Honda motorcycle and during her stay for two and half years in her matrimonial home after the marriage she had to face constant torture from her husband and his family members. The appellant-wife has specifically denied all the allegations alleged against her regarding her having illicit connection with someone prior to her marriage and as a result of that giving birth to a female child who has subsequently died and suppressing the fact of her illicit relationship by her father solemnisation her marriage with her respondent husband and all the allegations regarding her chastity are baseless and wild allegations. She has also denied that the "Asthmangla" was held in her matrimonial home in which his brothers Buda and Durga had come and with them she has returned to her parent's house and the father of her husband had come to her parent's house to take her back and on the request of her father for her stay for one month in her parent's house on the ground of her illness she did not come back to her matrimonial home as well as the fact that due to the cultivation work her husband could not go to her parent's house for Roksadi. It is also alleged that it is false to say that her husband sent a letter to her father requesting him to bring back her to his house before Durga Puja in 1988 as well as the fact that her father had come to the house of her husband and made a request to the father of her husband to allow him to come to her parent's house before Durga Puja. The further case of the appellant-wife is that she has no illicit relation with any other person at the time she was living either with her parents or with her husband and she has never given birth to any child and any allegation in respect thereof or in connection therewith is totally false and incorrect and the said allegation has been deliberately set up by her husband to suit his nefarious design to get rid of her due to the non-fulfilment of the demand of money and Hero Honda motorcycle. Her further case is that her petitioner-respondent husband has solemnised his second marriage with the daughter of Bihari Das and she has filed Complaint Case No. 1 of 1994 against her husband and his family members which is subjudice in the Court of Shri Som Prakash Pandey, Judicial Magistrate, Ist Class, Seraikella for demanding dowry, treating her with cruelty and for bigamy.
5. In view of the pleadings of the parties the following issues were framed by the learned Court below for adjudication :
(i) Has the petitioner any cause of action for the suit against the respondent?
(ii) Is the suit bad for non-joinder of necessary parties?
(iii) Is the suit barred by law of limitation?
(iv) Did the respondent treated the petitioner with cruelty?
(v) Was the respondent at the time of her marriage pregnant by a person, other than the petitioner?
(vi) Is the petitioner entitled to reliefs as claimed?
6. In view of the oral and documentary evidence on the record the learned Court below recorded the finding that appellant Santoshi Devi was pregnant as a result of illicit relationship with some person prior to her marriage with her respondent-husband and it is a fit case for dissolution of marriage under Section 13(1)(i) read with Section 12(1)(d) of the said Act. In view of the findings aforesaid the marriage of the appellant with her petitioner-respondent husband was dissolved by a decree of divorce.
7. Assailing the impugned judgment as perverse and contrary to the mandates as contained under Section 12(1)(d) and 13(1)(i) of the said Act and having no averment in the matrimonial petition of the respondent-husband in respect of the ingredients as mandated under the aforesaid provisions in the statute it has been submitted by the learned counsel for the appellant-wife that the learned Court below did not consider the fact that the petition of the respondent husband is not maintainable under the provisions of Section 13 of the said Act in the facts and circumstances of this case as Section 13(1)(i) of the said Act envisages about having voluntary sexual intercourse with any person other than his or her spouse after the solemnisation of the marriage and here in this case there is neither any averment nor any evidence on the record to show that the appellant wife had voluntary sexual intercourse with any other person other than her husband during the subsistence of her marriage and on this ground alone Section 13(1)(i) of the said Act has no application to the facts of this case. It has further been contended that admittedly the marriage of the appellant with her respondent- husband was solemnised on 21.04.1988 and, thereafter, the appellant-wife had come to her matrimonial home where the marriage was consummated between them and there is no averment in the matrimonial petition of the respondent that at the time of the marriage the appellant was pregnant by some person other than the petitioner and he was equally ignorant of the said fact and also marital intercourse has not taken place with the consent of the petitioner-husband since the discovery by him of the existence of the pregnancy as alleged. It has also been contended that in a case of nullity of marriage under Section 12(1)(d) of the said Act period of limitation has been prescribed which is one year from the date of the marriage and here in this case the suit of the dissolution of the marriage on the said ground has been filed on 10.06.1993, i.e., after more than 4-1/2 years from the date of the said marriage, and thus their marriage cannot be annulled or in the alternative there cannot be a decree of dissolution of their marriage by divorce. In support of his contention reliance has been placed upon the ratio of the case of Rabindra Prasad v. Sita Devi, AIR 1986 Pat 128. Lastly it has been contended that the learned Court below did not consider the averment contained in the matrimonial petition on the record and the relevant provisions contained under the statute in respect thereof and has gravely erred in dissolving the marriage of the appellant with her respondent-husband and in this view of the matter the impugned judgment is unsustainable.
8. The respondent-husband has not appeared in this appeal in spite of service of notice.
9. It will admit of no doubt that the marriage of the appellant was performed with respondent Sadanand Das Goswami on 20.04.1988 in accordance with Hindu religion and rites at Village- Kundrilong, Police Station-Ichagarh, District-Singhbhum West, i.e., at the house of the father of the appellant and on the following day of the marriage the appellant came to her matrimonial home in Village-Gundukathartoli in the district of Ranchi in the company of her respondent-husband where they lived together as a husband and wife and their marriage was consummated. It is also an admitted fact that "Asthmangla" was held on the 4th day of their marriage and there Is a dispute between the parties as to where the said "Asthmangla" function was performed. According to the case of the respondent-husband, the said "Asthmangla" function was performed at his house at village-Gundukathartoli in which Bada and Durga, the brothers of the appellant had participated and thereafter, the appellant returned to her parent's house in their company where she fell ill and thereafter she did not return to her matrimonial home on the pretext of her illness inspite of the efforts made by his father and letters sent to her father. According to the appellant-wife, the said "Asthmangla" function was performed at her parent's house and she along with her respondent-husband had come to her parent's house to participate in the said function and soon thereafter she returned to her matrimonial home with him and thereafter she led her conjugal life with her respondent- husband for two and half years continuously and only on the eve of Makar Sankranti in the year 1991 she had returned to her parent's house in the company of her father with the consent of her respondent-husband as well as of his father PW 5 Sadanand Goswami, the respondent-husband has deposed that "Asthmangla" was performed at his house on 24.4.1988 and thereafter her brother Durga and Buda took her to her parent's house and since then she did not return to her matrimonial home. PW 4 Ram Das Goswami. PW 1 Aditya Kumar Das, the father and brother, respectively of the respondent have also deposed in their evidence regarding "Asthmangla" having been performed on 24.4.1988 at their house and thereafter the appellant did not return to her matrimonial home. PW 3 Nirad Gopal Goswami, the maternal uncle of the respondent has corroborated the testimony of PW 5, PW 4 and PW 1 in respect thereof. The appellant has examined herself as RW 1 and in para 14 of her evidence she has deposed that "Asthmangla" was performed on 24.4.1988 in her parent's house and on the following day thereafter she returned to her matrimonial home. RW 3 Baidyanath Das and RW 2 Durga Charan Das have deposed that "Asthmangla" was performed at their house and according to PW 3 the said "Asthmangla" was performed on 24.4.1988 whereas RW 2 has deposed that "Asthmangla" was performed on 23.4.1988 and thereby RW 2 contradicts the testimony of RW 3 and RW 4 in respect thereof RW 1 Hare Krishna Das, resident of Village-Laba, a different village, and not related with the father of the appellant has deposed that "Asthmangla" was performed at the parent's house of the appellant. In his evidence he has not disclosed the date of the performance of "Asthmangla" and he has also no specific means of knowledge regarding the affairs of the father of the appellant and therefore, his testimony lacks credence in respect thereof. Since there is inherent contradictions in the testimony of RW 2 on the one hand and RW 3 and RW 4 on the other hand regarding the date of ''Asthmangla" having been performed at the house of the appellant, their evidence does not appear to be trustworthy. It, therefore, appears in view of the evidence referred to above that "Asthmangla" was performed at the house of the respondent-husband on 24.4.1988. PW 5 the respondent- husband has deposed that after "Asthmangla" his appellant-wife returned to her parent's house in the company of her brothers and since then she did not return to her matrimonial home. He has further deposed that his father had gone to her parent's house in the month of June 1988 but on the pretext of her illness she did not return to her matrimonial home. He has also deposed that he has written a letter in the month of July 1988 requesting her father to send her to her matrimonial home but it did yield no result and her father came to his house on the eve of Durga Puja to take him to his house, but he did not go there due to his illness. His evidence is further to the effect that her brother Durga came to his house on 16.10.1988 and gave information regarding the birth of a female child of the appellant and on this information his elder brother Aditya Kumar Das had gone to her house and on return from there he disclosed that the child born to the appellant is healthy and a matured child of full period and this gave reasonable suspicion to him and his family members and thereafter his father and maternal uncle went there and they also formed an opinion to that effect. He has further deposed that his father sent a letter, the copy of which is Ext. 1 on 25.10.1988 requesting the father of the appellant to get the child medically examined and her blood to be matched with that of the respondent-husband and the said letter was sent by registered post (Ext. 2) but thereafter her father came to her house on 5.11.1988 and informed that the said female child born to the appellant has died on 28.8.1988. PW 4, PW 3 and PW 1 in their evidence have corroborated the testimony of PW 5, the respondent- husband in respect thereof.
PW 2 Radha Raman Das, resident of Village-Laba, who is on visiting terms with the father of the appellant, has also corroborated their testimony regarding the appellant giving birth to a healthy matured child. PW 5 has also deposed that after the marriage he had never gone to the parent's house of his appellant-wife and she had become pregnant due to her illicit sexual intercourse with Santosh Kumar Mahanta, the husband of her elder sister prior to her marriage. The appellant-wife, her father and brother have denied in their evidence that the appellant has begotten a female child. RW 5 Santosh Kumar Mahanta in his evidence has denied having any illicit relationship with the appellant. Ext. 1 is the copy of the letter which was sent by PW 4, the father of the respondent-husband to the father of the appellant. Ext. 2 is the registration receipt of having sent the said letter to the father of the appellant. PW 4 has deposed that after return from the house of the father of the appellant he had sent the said letter and the copy of the said letter has been retained with him. The said letter has a very telling effect regarding the matter in controversy between the parties. There is no evidence on the record to refute the authenticity of the copy (Ext. 1) of the letter which was sent by the father of the respondent to the father of the appellant. It, therefore, appears in view of the evidence on the record that the appellant has begotten a female child within five months and twenty-five days of her marriage with her respondent-husband. There is no iota of legal evidence on the record brought by the appellant that she had lived in her matrimonial home for two and half years continuously after her marriage. The contents of Ext. 1 belles the said fact. It, therefore, appears that the appellant had illicit sexual Intercourse with someone prior to her marriage as a result of which she has conceived and has begotten a female child on 16.10.1988. Now a pertinent question arises as to whether the illicit relationship of the wife with some are prior to her marriage shall be a ground for the dissolution of with her husband under Section 13(1)(i) of the said Act. For proper appreciation, the relevant portion of Section 13(1)(i) of the said Act is quoted below :
"13. Divorce.--(1) Any marriage solemnised, whether before or after the commencement of the Act. may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party.--
(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or XX XX XX XX XX
XX XX XX XX XX
It is pertinent to mention at the very outset that unchastlty of a woman prior to her marriage has not been mandated as a ground for dissolution of her marriage with her husband. There is neither averment in the matrimonial petition of the respondent-husband nor there is any evidence on the record that after the marriage which was solemnised on 20.4.1988 the appellant-wife had voluntary sexual intercourse with any person other than his respondent-husband. Section 13 of the said Act mandates that a petition for divorce can lie at the instance of the husband or the wife if either of the party has been after the solemnisation of the marriage had voluntary sexual intercourse with any person other than his or her spouse. Adultery is the voluntary intercourse of a married person with a person other than his or her spouse and it is a breach of matrimonial tie by either party. Any sexual intercourse by a woman prior to her marriage with someone does not at all fall within the ambit of adultery. Adultery in the matrimonial law is one of the principal grounds for relief and has been defined as consensual sexual intercourse between a married person and another person of the opposite sex during the subsistence of the marriage. Here in this case, the allegation against the appellant is that she has conceived prior to her marriage as a result of illicit intercourse with someone or with the husband of her elder sister. Section 13(1)(i) of the said Act mandates that such voluntary sexual intercourse by a party to the marriage with any person other than his or her spouse must be after the solemnisation of the marriage, which means that during the subsistence of the marriage. Therefore, in spite of the fact that the appellant wife has delivered a fully matured female child within six months of her marriage with her respondent-husband as a result of her illicit cohabitation with someone prior to her marriage does not fall within the ambit of adultery as mandated under Section 13(1)(i) of the said Act and viewed thus, the petitioner- respondent husband has no case for dissolution of his marriage with his appellant-wife on that score.
10. Section 12 of the said Act provides that any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity if the wife was at the time of the marriage pregnant by some person other than her husband and for that the proceeding for dissolution of the marriage must be instituted within one year from the date of the marriage and there should not be marital intercourse with the consent of the petitioner husband since the discovery by him of the existence of the pregnancy of the wife. Let us now advert to the matrimonial petition which reveals that the birth of the female child to the appellant on 16.10.1988 had made the respondent-husband and his family members suspicion regarding the chastity of the appellant-wife and it was presumed that she has conceived by someone as a result of the illicit intercourse prior to her marriage and the information regarding death of the said female child further confirmed their suspicion in respect thereof and the appellant-wife is an unchaste woman and suppressing the fact of the existence of the said illicit connection of the appellant with someone or with her sister's husband, the marriage was solemnised of the appellant with her respondent-husband practicing fraud. There is ho averment in the matrimonial petition of the respondent-husband that his appellant-wife was at the time of the marriage pregnant with some person other than him. There is also no averment that after a discovery of the existence of the pregnancy he had no marital intercourse with his appellant-wife as per his consent. There is also no evidence on the record brought by the petitioner-respondent-husband that on the day of the marriage or during the period when she lived with him as his wife he has found his appellant-wife having pregnancy. Therefore, in the facts, circumstances and the evidence on the record the case of the respondent-husband does not fall within the ambit of Section 12(1)(d) for annulling his marriage with his appellant-wife. And last but not the least, there is also no averment in the matrimonial petition that he has not condoned the act or acts complained of against his appellant-wife. Section 23 of the said Act mandates that the Court shall not grant the relief as prayed when the
petitioner-respondent-husband has not condoned the act or acts complained of against his appellant-wife. Furthermore, the said Act provides a period of one year from the date of marriage for instituting a proceeding for annulling the marriage by a decree of nullity. Here in this case the marriage was admittedly solemnised on 20.4.1988 and this suit has seen the light of the day on 10.6.1993, i.e., after more than four and half years. Therefore, the suit of the petitioner-respondent- husband stands barred on this score and he is not entitled to get his marriage annulled by a decree of nullity. The learned Court below did not meticulously consider the evidence on the record as well as the provisions of the said Act in proper perspective and has committed a manifest error in dissolving the marriage of the appellant-wife with her respondent-husband. Viewed thus, the impugned judgment cannot be sustained.
11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is set aside. There shall be no order as to costs in the facts and circum stances of this case.