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 Courts 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 in having the witnesses before it I would refrain myself from interfering with the finding of fact, but it clearly appears that the special features about the evidence of the witnesses of the appellant have been subjected to unnatural and surmisic dissection which, the law does not permit.
8. The trial Court should have kept in mind the principles of pleadings and proof, which are also applicable to the matrimonial matters. The respondent, in the reply to the petition, has failed to mention a positive date of birth of his wife. He only says that she was 17 years of age. On the other hand, the appellant gives a positive date of her birth. Respondent in his statement says that when the appellant came to him on marriage, she disclosed to him that she was 17 years of age. This fact again is absent in his written statement. The appellant was also not questioned on this fact by the respondent when she was in the witness box. Thus, the alleged admission by the appellant was neither pleaded, nor it was put to her in cross-examination. This clearly shows that this was only an afterthought on the part of the respondent.
9. As the appellant never went to school in her childhood, she had no advantage of having a school certificate to show her age. Millions of so-called unfortunate girls of unprivileged class had no advantage of schooling. In absence of a school certificate, the age can be proved otherwise also by some other mode of evidence. Parents are the best witnesses of the fact of the date of birth of their children. Entries in a horoscope can be used to prove the date of birth and also by examining the person who wrote it Very great confusion of thought or rather lack of thought is frequently shown in civil courts in regard to the admission in evidence of horoscopes and similar documents. A horoscope is often accepted as substantive evidence of the date of birth of the person mentioned in it, perhaps with a vague idea of reference to Section 32 of the Evidence Act. No part of that Section can make any statement of a date in such a document, a relevant fact. A horoscope can be used to help in proving the date of birth stated in it only under Section 159 or Section 160 of the Evidence Act and that of course only if the person who wrote it or a person who read it soon after it was written, is examined as a witness. (See Shanker Guru v. Chinnuji, AIR 1923 Nag 164).
10. Section 160 of the Evidence Act specifically permits a witness to testify the facts mentioned in the document referred to in Section 159 of the Evidence Act, although he has no recollection of facts themselves if he is sure that facts were correctly recorded in. the document. This procedure adopted was held to be neither in violation of law nor an abuse of the powers of the court, in the case of (State of Andhra Pradesh v. Cheemalapati Rao, AIR 1963 SC 1850). It is also not necessary that a witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document before the document can be used under Section 160 of the Evidence Act. Thus, the upshot of the above is that a horoscope can be used for refreshing the memory of the writer as well as the person who has read it. Hence, the testimony of Pannalal (P.W. 2) and Narayan Shastri (P.W. 3) when deposed the fact that from it the equivalent date of birth of the appellant was 23-9-1961, then there was no cause to reject this evidence merely on surmises.
11. It is apparent that the case was probabilised by the evidence of the witnesses of the appellant. Under the circumstances, the best possible evidence was produced by the appellant during the trial and it was for the respondent to rebut the same. Unfortunately, the evidence and pleading of the respondent fail to rebut the probabilised case of the appellant.
12. Section 13(2)(iv) of the Act is reproduced below :
' Section 13, Divorce (1)....................
(2)(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 the age of eighteen years.
Explanation :-- This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976'.
This provision was incorporated by the Amendment Act of 1976 in the main Act with , the intention of providing an additional ground of divorce for the women. Though a marriage in violation of the age limit set in Section 5(iii) is not rendered invalid, a wife whose marriage was solemnised before she had attained 15 years is given a right under Section 13(2)(iv) to have her marriage dissolved. This right has to be exercised by the wife after attaining the age of 15 years, but before completing 18 years.
13. From the evidence on record, it is proved that the appellant, when married to the respondent, was below 15 years of age and when she repudiated the marriage on 20-9-1979, she was below 18 years of age. The appellant filed the present petition on 25-9-1979 two days after completing the age of 18 years.
14. I am aware of the limitations of this Court while disturbing the findings of facts, but from the reasons given by me hereinabove, if I do not disturb the findings of the trial Court, great injustice is likely to be caused to the appellant who is desirous of taking the benefits of the law of the land. I am also aware that the appellant and her father are not only illiterate but also belong to the lower strata of society and hence they should not be allowed to suffer on account of their drawbacks.
15. Consequently, the appeal is allowed and the judgment and decree passed by the trial Court is set aside. Let a decree of divorce be passed in favour of the appellant according to law, against the respondent, with costs throughout, Counsel's fee Rs. 200/-, if certified.