Judgment:
M.S. Liberhan, J.
1. This appeal arises out of the judgment dated 25.5.1995 declining divorce to the appellant-wife under Section 13(2)(iv) of the Hindu Marriage Act, 1955.
2. The appellant (hereinafter referred to as the petitioner) claimed divorce, inter alia, contending that she was 8 years old when she was married to the respondent. On attaining the age of 15 years and before completing 18 years she repudiated the marriage. The respondent-husband disputed the factum of repudiation as well as the age of the petitioner.
3. The facts, found by the Trial Court, not disputed before us during the course of arguments, apart from their being discernible on perusing the record are:
Petitioner was born on 20.3.1975. This fact is corroborated by her school leaving certificate Ex. P1, proved by AW. I Shri Bhale Ram and by her mother A.W.3 Smt. Tulsa. The petitioner herself stated so while appearing in the witness- box as AW.2. It appears that by clerical error, in the finding arrived at by the Trial Court the date of birth instead of 20.3.1975 has been recorded as 20.7.1975. The petition for divorce was filed on 16.7.1990. The petitioner was 15 years and 4 months old at the time of filing the petition. Petitioner's statement repudiating her marriage was recorded on 30.11.1990 in exparte proceedings. Again on setting aside the ex parte proceedings, her statement was recorded on 12.2.1993. The Trial Court observed, that the petitioner in her statement had stated, at the time of repudiation of marriage, her brother was present, who was not examined as a witness. Mother of the petitioner stated to be present at the time of repudiation. In view of the stand taken by mother of the petitioner and non-examination of Prithi- brother of petitioner, the factum of repudiation of marriage was not accepted by the Trial Court. It was further found, that in view of the averments made by the petitioner in paragraph 3 of the petition to the effect that 'the petitioner has not co-habited since 21.6.1984 as the petitioner was minor and is still minor and her age at the time of filing of the petition is 14 years. No child was born out of their wed-lock, the repudiation cannot be held to be valid. Petition for divorce was declined
4. Learned Counsel for the appellant vehemently argued, in view of the admitted facts viz. the petitioner was born on 20.3.1975 and was married on 21.6.1984 at the age of 8 years 8 months; petition for divorce being filed on 16.7.1990 and decree for divorce being declined on 28.5.1993, it cannot be held that there was no valid repudiation of marriage. It was urged that Section 13(2)(iv) of the Hindu Marriage Act, 1955 envisages the repudiation of marriage by a spouse if the same was solemnised before attaining the age of 15 years. Petitioner in this case did repudiate the marriage after attaining that age but before attaining the age of 18 years. This special right was conferred under the Act on a girl who has been married before the age of 15 years. No particular form for repudiation of marriage has been provided. Hindu Marriage Act, being a social legislation with wide spectrum of consequences on human lives should be construed liberally.
5. Learned Counsel for the respondent contended that the alleged repudiation of marriage is not a valid repudiation particularly in view of the facts stated in para 3 of the petition as reproduced above.
6. It would be expedient to note that Section 5 of the Hindu Marriage Act, envisages that for a valid marriage a bridegroom should have completed the age of 18 years and the bride the age of 15 years at the time of marriage. Reference may be made to Section 5(iii) of the Act.
7. The remedy to a wife having married at the age less than the prescribed age has been provided by Section 13(2)(iv) of the Act, which runs as under :
'13. Divorce-(1) Any marriage solemnised whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife be dissolved by a decree on the ground that the other party-
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(2) A wife may also present a petition for dissolution of her marriage by a decree of divorce on the ground-
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(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.'
8. While dealing with matrimonial problems one cannot permit drac-onian rule of law to produce unjust result. It involves the desirability of implementing the object of the Hindu Marriage Act into producing a social civilised society. One cannot tend to obscure the principles of social justice under the gooves of the primitive approach to the statute or the institution of traditional customary and sacramental marriages. The law providing for protection to the woman cannot be sacrificed on the assumed and presumptuous legal nuances. It is the Court's duty to extend a protective hand to the girls by implementing the social reforms brought about by the Hindu Marriage Act by liberally construing the provisions of law. Courts must be astute and not to confuse. While conscious of human behaviour from ethical stand point of view, the repression on women have to be undone with a heavy hand.
9. Courts cannot loose sight of the admitted facts coming into being during the pendency of the litigation in order to grant an appropriate relief at the time of passing the decree. Courts cannot loose sight of glaring facts and get entangled in niceties or articulated pleadings, while dealing with matrimonial problems of uneducated people. Ordinarily totally incorrect facts on the face of record do not become sacrosanct just because the same have been stated in the petition particularly when the averment is based only on a clerical error in calculating the age of the petitioner.
10. A reading of the relevant section makes it categorically discernible that no particular form for repudiation of marriage is provided. Repudiation can be by any act or even by overt conduct of the appellant. The very fact of filing the petition would amount to repudiation of marriage. Repudiation stands affirmed by the overt act of the petitioner by presenting a petition to the Court. For repudiation of the marriage no bilateral act is required. The remedial provision was purposely intended for the grant of relief to a suffering female. It cannot be permitted to be used to browbeat, oppress and deprive her of due right by adopting the game of chess in Court to grant the relief. Dead marriages have to be given decent burial quickly. Marriage as observed earlier, is a social institution in which State is interested as it can affect social tranquility. In the present case, concededly the marriage was solemnised when the girl was of only 8 years. According to the statute, the persons responsible for the marriage should have been prosecuted. The husband cannot be allowed to turn round and deny the remedy of repudiation of the marriage that has been conferred, under the Hindu Marriage Act to protect the interests of weaker sex and to prevent explanation of minor girls.
11. The Trial Court while assessing the human nature and human affairs lost sight of the domestic lives of the semi illiterate villagers and future possible relationship between the parties to the matrimonial alliance. In our considered view mere non-examination of the witness to repudiation by itself is not sufficient to disbelieve the parties to the repudiation when the act of repudiation stands affirmed in writing by presentation of the petition. If not earlier, the repudiation of marriage came into operation by writing on presentation of the petition to the Court on the date of petition was presented. It is obvious that on the day the petition was presented i.e. on 16.7.1990, the petitioner was 15 years 4 months and as such was above 15 years and was less than 18 years. Thus, the marriage stood repudiated before the petitioner attained the age of 18 years. Presenting of the petition by the appellant in itself amounts to repudiation of marriage particularly when no particular form for repudiation of marriage is provided statutorily under the statute or any rules framed thereunder. The marriage being in violation of the Child Marriage Restraint Act, 1929 and being a cognizable offence, the State machinery should have moved into punish the persons responsible in accordance with law.
12. Be that as it is, we are of the considered view that in view of the admitted facts, as observed above, the marriage stood repudiated if not earlier at least on 16.7.1990, the date of filing of the petition. In view of Ex. P1, the birth certificate the date of birth of the petitioner is 20.3.1975. By simple arithmatic calculation the age of the petitioner, at the time of filing the petition comes to 15 years 4 months. Merely writing that petitioner is of 14 years of age in the pleadings will not reduce the age of the petitioner which obviously is a clerical mistake. The right approach in our view, in such situation is to conclude that the petitioner should be given her due right to determine her fate and avail the remedy provided by Section 13(2)(iv) of the Hindu Marriage Act.
For the reasons recorded above, the appeal is accepted. The petitioner is granted a decree of divorce with costs. Costs Rs. 2,000/-.