Patna High Court
Rajiv Kumar Tanti vs Ruby Kumari on 21 July, 2014
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta, Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.302 of 2010
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Rajiv Kumar Tanti, son of Late Bhola Tanti, resident of Mohalla Mayaganj, P.S.
Barari, District- Bhagalpur
.... .... Appellant/s
Versus
Ruby Kumari, daughter of Sri Naresh Prasad Mandal, resident of Mohalla-
Mayaganj, P.S. Barari, District- Bhagalpur.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur
Mr. Md. Imteyaz Ahmad
Mr. Nilesh Kumar
For the Respondent/s : Ms. Mallika Majumdar
Mr. Dilip Kumar
Mrs. Kiran Kumari.
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CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA
and
HONOURABLE DR. JUSTICE RAVI RANJAN
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA) Date: 21-07-2014 Heard learned counsels for the parties.
The appeal has been filed challenging the judgment and decree dated 21.6.2008 passed by the Principal Judge, Family Court, Bhagalpur in Marriage Case No. 130 of 2007, by which the petition of the applicant-respondent was allowed, the Marriage Certificate No.23 of 2004 dated 22.6.2004 was annulled and the decree of nullity of marriage was directed to be passed declaring the marriage solemnized between the parties as voidable under the provisions of Section 25 of the Special Marriage Act, 1954.
At the outset, learned counsel for the appellant has raised a Patna High Court MA No.302 of 2010 dt.21-07-2014 2 pure question of law that the Marriage Case No.130 of 2007 filed in July, 2007 for cancelling the Marriage Certificate Case No.23 of 2004 dated 22.6.2004 and declaring the marriage between the parties as null and void on the ground that the same had been obtained by playing fraud is barred by the provisions of Section 25 (iii) read with clause
(a) of the second proviso of the said Section.
Learned counsel for the respondent also prays that the said issue be decided at the outset and if the findings are in favour of the appellant then no findings on the merit be given.
It is not in dispute that in terms of the Marriage Certificate dated 22.6.2004, the appellant claims that the marriage under the Special Marriage Act was performed between the appellant and the respondent on 22.6.2004.
It is the claim of the applicant-respondent, Ruby Kumari, that no such marriage had taken place and the marriage certificate had been obtained by playing fraud about which she and her parents learnt on 5.9.2004 when the appellant along with four persons came to her house and told her mother that he and Ruby Kumari had performed court marriage and he had come to take Ruby Kumari. The alleged fraud was, thus, admittedly detected on 5.9.2004. In 2005, the respondent filed Marriage Case No.66 of 2005 for grant of a decree of divorce against appellant Rajiv Kumar Tanti with the same story in Patna High Court MA No.302 of 2010 dt.21-07-2014 3 which she sought relief to the effect that so called marriage be declared as null and void. By judgment and order dated 5.1.2006, the suit was dismissed as premature at that time holding that no cause of action arose to file the said suit and no cause of action had been mentioned in the plaint.
Admittedly, no appeal was filed against the said judgment and order dated 5.1.2006. Thereafter in July, 2007, the Marriage Case No.130 of 2007 has been filed under Section 25 of the Special Marriage Act, 1954. Under the relevant provisions of Section 25 of the Special Marriage Act, 1954, it has been provided that any marriage solemnized under that Act shall be voidable and may be annulled by a decree of nullity if the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872, but the second proviso therein clearly provides that the court shall not grant a decree if proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered.
Evidently, the present marriage case was filed nearly three years after the fraud was detected. It is true that the earlier marriage case was filed in about seven months from the detection of the fraud but the same had been dismissed as premature and the respondent did not choose to challenge the said order by filing any appeal. Even after Patna High Court MA No.302 of 2010 dt.21-07-2014 4 the dismissal of the said suit on 5.1.2006, the present marriage case was filed in July, 2007.
In the aforesaid circumstances, the court below had no jurisdiction to entertain the suit after the lapse of more than one year from 5.9.2004 when the fraud was detected in terms of the provisions of Section 25 of the Special Marriage Act.
Thus, the judgment and decree dated 21.6.2008 appears to be without jurisdiction as no such suit was maintainable after the lapse of more than one year from 5.1.2006.
The appeal is, accordingly, allowed and the impugned judgment and decree dated 21.6.2008 are set aside.
V.P.Sinha/- (Ramesh Kumar Datta, J)
(Dr. Ravi Ranjan, J)
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