Hari Shankar Prasad, J.
1. This appeal, at the instance of the appellant, is directed against the judgment and decree dated 9.2.2000 passed in Matrimonial (Title) Suit No. 57/92, whereby and where-under the learned 4th Additional Judicial Commissioner, Ranchi, dismissed the suit.
2. The complainant (hereinafter referred to as 'the appellant') brought a suit for annulment of marriage vide Matrimonial Title Suit No. 57/92 under Section 12(1)(d) of the Hindu Marriage Act, 1955 on the ground that at the time of the marriage the respondent-wife pregnant by some person other than the appellant but thereafter the appellant amended the suit and added additional grounds for annulment of marriage under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 and the prayer was allowed. The appellant thereafter added another ground of divorce as cruelty being meted out with the appellant by his respondent-wife. On the other hand, the case of the appellant-plaintiff is that the marriage between him and the respondent was solemnized on 9.3.1991 and after the marriage the respondent came to the house of the appellant but three days thereafter she was taken back to her parent's house and thereafter she did not return. Further case of the appellant is that in October, 1991 appellant came to know that respondent has given birth to a matured child and on further investigation and inquiry he came to know that on 13.7.1991 respondent-wife has given birth to a male child in a nursing home. Further case of the appellant is that the respondent was made pregnant by a person other than the appellant before the marriage, which fact was not disclosed by her and this amounted to cruelty, The respondent appeared in the case and challenged the maintainability of the case on the ground of limitation. The respondent also denied all the allegations made by the appellant but she admitted that due to miscarriage she was taken to the nursing home on 12.7.1991 by the appellant himself.
3. On the pleadings of the parties, the learned Court below framed the following issues :--
(i) Is the application maintainable?
(ii) Whether the applicant has got a valid cause of action for the suit?
(iii) Whether marriage of the applicant with respondent consummated?
(iv) Whether the respondent was carrying pregnancy from any person other than the applicant at the time of their marriage?
(v) Whether the marriage of the applicant with respondent took place due to act of fraud played by respondent's parents?
(vi) Whether the marriage of the applicant with the respondent is liable to be annulled by a decree of divorce?
(vii) To what other relief or reliefs, the applicant is entitled to?'
4. Issue Nos. 3, 4 and 5 were decided in favour of the appellant but issue Nos. 1, 2, 6 and 7 were decided against the appellant and in favour of the respondent. The application was filed under Section 12(1)(d) and under Section 13(1)(a) of the Hindu Marriage Act, 1955 (Act No. 25 of 1955) for annulling and dissolving the marriage of the applicant and the respondent by passing a decree of divorce. The learned Court below, on the pleadings of the parties, decided some issues in favour of the applicant and some issues in favour of the respondent. The issue Nos. 4 and 5 i.e. whether the respondent was carrying pregnancy from any person other than the applicant at the time of marriage (issue No. 4) and whether the marriage of the applicant with respondent took place due to act of fraud played by respondent's parents (issue No. 5), have been discussed by the learned Court below after examining witnesses on behalf of the appellant and on behalf of the respondent and after considering their documentary evidence the learned Court below held that the respondent was actually pregnant at the time of marriage from somebody else and soon after the marriage she made delivery of a child. The respondent in her written statement or in her evidence has levelled allegation of demand of dowry and torture etc. but the learned Court below considered all these facts in detail. Although in written statement such a plea was not taken but the learned Court below even then considered all the facts and after considering the evidence of AW 6, who is a lady doctor, came to a finding that the respondent was pregnant at the time of marriage and she concealed the fact from her sasural people and it is wrong to say that while she was lifting a heavy article she sustained miscarriage and the evidence of doctor is that the respondent gave delivery of a male child, but since petition for such annulment was not filed within one year of the date of marriage, the learned Court below dismissed the suit on the point of limitation.
5. In course of argument, learned counsel for the appellant, filed a case law reported in 2001(2) Femi Juris C 63 (Rajas-than) and submitted that the instant case is more or less similar to the aforesaid case and in the aforesaid case also the respondent concerned had given delivery to a child within 171 days after marriage and a suit was brought on the ground that she was pregnant at the time of marriage and this fact was not brought to the knowledge of the petitioner concerned and, on the other hand, the respondent had denied all the allegations but the learned Court below ultimately came to a finding that she was pregnant at the time of marriage and this fact was not brought to the knowledge of the petitioner concerned but learned Court below considered this aspect that case has not been filed within time and it is barred by law of limitation and dismissed the suit. Being aggrieved by the said order the concerned petitioner moved the High Court but since both the parties are living separately and since the fact of pregnancy was discovered, the High Court permitted conversion of the petition into divorce petition and allowed divorce on the ground of cruelty and mental agony to the husband. But, in the instant case, the suit has also been filed under Section 13 of the Hindu Marriage Act and, therefore conversion of this petition into divorce petition is not required. In the aforesaid case the High Court has considered several facts before allowing the petition of divorce, which are quoted herein below :--
(1) that the marriage was performed as per the Hindu rites on 30.6.1990;
(2) a male child was born just after 4 1/2 months in the Government Hospital;
(3) within three days of the birth of the child, the wife had gone to her parents along with the child in November, 1990;
(4) that ever since the parties are not living together for last 10 years and have no contacts.
(5) at the time of leaving the husband's house a writing was also made between the parties which has been exhibited on record to this effect says that the marriage has broken almost immediately after the marriage and it is not possible for the parties to live together and that in view of the age of husband, it shall be appropriate that instead of annulling the marriage as void in not having been filed within the stipulated period, it shall be appropriate for both the parties that the marriage be dissolved by way of decree of divorce on the point of cruelty and the mental agony the appellant must have undergone in the circumstances as mentioned above.'
6. On the other hand, learned counsel appearing for the respondent, submits that on consideration of various facts, it will come to light that she was not pregnant at the time of marriage and a wrong view has been taken in the matter. In this connection, learned counsel referred to AIR 1965 SC 364, wherein, in the similar facts and circumstances of the case, a finding was given that at the time of marriage the lady in question was not pregnant and In appeal before the High Court, the High Court also came to a finding that she was not pregnant at the time of marriage and delivery in such a short time of marriage may happen. The matter went to the Supreme Court but appeal was dismissed, as the Apex Court was of the view that both the Courts below have given a concurrent finding.
7. Here, in the instant case, what I find, from the evidence on record, is that the learned Court below has come to a finding that the respondent was pregnant at the time of marriage and she has concealed this fact from her sasural people and the learned Court below has rightly come to the conclusion that AW 6, who is a lady doctor is not an interested witness in anyway in the dispute between the appellant and the respondent and she has categorically stated that the respondent was admitted in her hospital and she gave delivery to a male alive child and against that evidence, on behalf of respondent, the plea that she lifted a heavy article and as a result of which miscarriage took place, cannot be considered to be true but question here is not of miscarriage because she has given birth to a child and this has come from the mouth of AW 6 and her register has also been brought on record to prove this fact and, therefore, on considering this fact, it is established that she was pregnant at the time of marriage. Further the appellant has also filed divorce suit under Section 13(1) of the Hindu Marriage Act and although lower Court dismissed the suit on the ground of case having been filed after expiry of period of limitation, but from the case law cited on behalf of the appellant, I find that there is sufficient material on record to justify the cruelty and desertion.
8. In that view of the matter, the appeal is allowed and the judgment and decree dated 9.2.2000 passed in Matrimonial (Title) Suit No. 57 of 1992 is hereby set aside.