Karnataka High Court
Kashinath Gouda vs Shreedevi @ Tara on 17 August, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
MFA No.200162/2019 (MC)
Between:
Kashinath Gouda @ Kashinath
S/o Eranna Gouda Satyappanavar
Age: 19 years, Occ: Agriculture
R/o Handral (SD) Village,
Tq. Shorapur
Dist. Yadgir
... Appellant
(By Sri Krupa Sagar Patil, Advocate)
And:
Shreedevi @ Tara
W/o Kashinath Gouda @ Kashinanth
D/o Ayyanna
Age: 22 years, Occ: Household
R/o Handral (SD) Village
Tq. Shorapur, Dist. Yadgir-585226
... Respondent
(By Sri Huleppa Heroor, Advocate)
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This Miscellaneous First Appeal is filed under Section
28 of the Hindu Marriage Act, praying to set aside the
judgment and decree passed by the Senior Civil Judge,
Shorapur in M.C.No.25/2018, dated 09.08.2018 and allow
the appeal as prayed for.
This appeal coming on for admission this day,
Krishna S.Dixit J., delivered the following:-
JUDGMENT
This appeal by the husband lays a challenge to the Judgment & Decree dated 09.08.2018 in M.C.No.25/2018, whereby the learned Senior Civil Judge, Shorapur has rejected his petition for a decree for dissolution of the marriage, filed under Section 11 & 12 of Hindu Marriage Act, 1955 r/w Section 3 of the Prohibition of Child Marriage Act, 2006, with a cost of Rs.5,000/-. After service of notice, the respondent-wife has entered appearance through her counsel, who makes submission in justification of dismissal of the petition.
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2. Brief versions of the parties:
(a) Appellant and respondent being Hindus got married on 20.05.2015 at Handral village in Shorapur taluka; at the time of performance of marriage ceremony; this marriage was performed without his consent; the appellant was aged 15 years; the marriage has not been consummated; the appellant knew that it was a 'child marriage' prohibited by law and therefore he never admitted the respondent to the matrimonial home nor to the conjugal relationship; that being the position, the marriage is a nullity.
(b) The respondent-wife after service of notice having appeared before the court below opposed the petition disputing appellant's assertions that: he was a minor at the time of wedding; he had consented to marriage; the marriage was not consummated; respondent contends that: both the parties led a happy married life for about six months or so; thereafter at the instance of his 4 parents, the appellant and his parents started harassing her mentally & physically by demanding dowry; and eventually the Shorapur Police on her complaint dated 15.06.2018 have registered Crime No.273/2018 for the offences punishable under Sections 323, 504, 506 & 498A of IPC r/w Sections 3 & 4 of Dowry Prohibition Act.
(c) To prove the petition averments, the appellant got examined himself as PW-1; from his side three documents came to be marked namely Marriage Card as Ex.P-1, School Transfer Certificate at Ex.P-2 & School Study Certificate at Ex.P-3; similarly the respondent- wife got herself examined as RW-1 and got marked four documents namely, Voters List at Ex.R-1, School Certificates at Exs.R-2 & R-3, Police Complaint at Ex.R-4 and Marriage Invitation Card at Ex.R-5; the learned Judge of the court below having considered the pleadings of the parties and having weighed the evidence placed on record has entered the impugned 5 judgment & decree that are not put in challenge in this appeal.
3. We have heard learned counsel for the parties and perused copies of papers made available by them from the trial court records; we decline to grant indulgence in the matter for the following discussion:
(a) There is no dispute as to parties being Hindus and their marriage having been performed on 20.05.2015 in accordance with the rites & rituals obtaining in the community to which they belong; the stability of institution of marriage regardless of the religion which parties thereto belong, is essential to the social organization and well being; dissolution of marriage brings about a train of social problems, is a matter of common knowledge; therefore in law always there is a strong presumption of validity of marriage; in Mayne's Hindu Law & Usage, 16th Edn. at para 132 it is stated as under:6
"132. Presumption of valid marriage.-When the fact of the celebration of marriage is established, it will be presumed, in the absence of evidence to the contrary, that all the forms and ceremonies necessary to constitute a valid marriage have been gone through. As was said as long ago as 1869, "When once you get to this, namely, that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law". So also where a man and woman have been proved to have lived together as man and wife, the law will presume, until the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. ..."
Hindus have, from the very beginning of the civilization, regarded marriage as a sacrament and as a tie which once tied cannot be untied; the Hindu notion of sacramental marriage differs from that in other religions inasmuch as the Hindus regard their marriage not merely a sacrosanct and inviolable union, but also an eternal union i.e., a union which subsists not only during this life but for all lives to come. Acclaimed jurist Duncan M. Derrett in "A Critic of Modern Hindu 7 Law", Bombay, (1970) at page 287, puts it succinctly thus: "...the intention of the sacrament is to make the husband and wife one, physically and psychically, for secular and spiritual purposes, for this life and for after- lives..."; this being the established legal position, courts will be slow in entertaining a claim for dissolution of marriage, unless a strong case is made out on the basis of cogent evidence;
(b) Firstly, the case of appellant is structured on the provisions of Sections 11 & 12 of Hindu Marriage Act, 1955; Section 5 which is inbuilt in these sections, lays down certain conditions for a valid marriage amongst Hindus; clause 3 of this section as modified by Amendment Act 2 of 1978 prescribes 21 years and 18 years as the minimum age for the bridegroom and the bride, respectively; Section 11 speaks of void marriages and Section 12 envisages voidable marriages; Parliament in its wisdom has not made the under-age of 8 the parties a ground for the invalidation of their marriage; to that extent, the provisions of this Act are in pari materia with those of the Child Marriage Restraint Act which the Apex Court considered in Lila Gupta vs. Laxmi Narayan, (1978) 2 SCJ 428; having examined the provisions of the said Act, it ruled that, under-age of parties does not per se render their marriage void or voidable; in that case, appellant being the husband had sought for the declaration of marriage as void on the ground of his minority; therefore, in the case at hands too, invocation of Sections 11 & 12 does not much come to the aid of the appellant;
(c) Secondly, the appellant pressed into service the provisions of the Prohibition of Child Marriage Act, 2006; section 2 happens to be Definition Clause of this Act; clauses (a) & (b) of this section define the terms "child" and "child marriage" as under:
"(a) "child" means a person who, if a male, has not completed twenty-one years of age, 9 and if a female, has not completed eighteen years of age."
(b) "child marriage" means a marriage to which either of the contracting parties is a child."
Sub-section (1) of section 3 of the Act on which the appeal is argued, makes the marriage of under-age persons voidable; the said provision is profitably reproduced as under:
"(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage."
It is pertinent to see that in the heading of the section and in the text of it's sub-section (1), the Parliament has significantly employed the expressions "voidable" and "at the option of contracting party"; the words "void" & "voidable" being the long obtaining legal concepts, have nearly fixed contours of meaning; ordinarily the word "void" is understood as void ab initio in the realm of Law of Contract or as non est in the field 10 of Administrative Law; on the other hand, the word "voidable" implies that the act/transaction in question is not void or invalid in itself, but an option lies for avoiding the same in certain circumstances; the Parliament in its wisdom has not made the child marriages void although it has given an option to the parties to avoid it on the ground of under-age of both or one of them; for exercising such an option, law prescribes a limitation period of two years following the cessation of under-age of the party who seeks to avoid the marriage;
(d) A brief survey of Matrimonial Jurisprudence shows that: a void marriage being 'no-marriage' does not confer marital status on the parties and thus, they are not spouses at all; their pre-marital status nonetheless continues; if one of them contracts another marriage, he or she cannot be sued or prosecuted for bigamy; a wife in a void marriage cannot seek 11 maintenance or alimony or the like; a spouse in such a wedlock can bring a proceeding for the jactitation of marriage; a judicial dicta concerning invalidity of such a marriage is only declaratory and not destructive of marital status since such a status was non-existent; on the contrary, a voidable marriage is a perfectly valid wedlock, so long as it is not avoided in accordance with law; all the legal consequences of a valid marriage flow from it; a voidable marriage is one that is regarded and recognized as being valid & subsisting until a decree for its annulment is obtained; such a decree is not just declaratory unlike in the case of void marriage but is constitutive of voidness, in the sense that it dissolves the hitherto existing marital status of the parties; it is only the under-age party who can petition the competent court for avoiding such a marriage; if the petition is not made within the prescribed limitation period, such a marriage ceases to be voidable forever; 12
(e) With the above legal position, we have to examine the case of the appellant that he was under-age whilst entering the wedlock; to prove his case, he banks upon the school records which mention 11.05.2000 as being his date of birth; the degree of proof as to the age of a person varies depending upon the nature, scope & object of the proceedings brought before the court; if the question of age arises for the purpose of admission to a primary school, the degree of proof obviously will not be as high as in the case of appointment to a public service or admission to a professional course; in a matrimonial proceeding for annulment of a voidable marriage which is solely founded on the ground of under-age of a party, the degree of proof is nearly as high as in a prosecution for the offence of bigamy; it is so because ordinarily law, reason & justice abhor voiding of marriage, for the reasons already mentioned above; in a legal proceeding for the invalidation of marriage that are founded only on the ground of under-age, a mere production and 13 marking of school records will not be sufficient; the appellant ought to have examined some concerned person from the school in question who would have presumably spoken about the circumstances that led to making of entries relating to his date of birth; in the alternate, he should have offered an explanation for not examining one; this having not been done, the appellant cannot derive much from this piece of feeble evidence; it is relevant to reproduce what a Constitution Bench of the Apex Court in Brij Mohan Singh vs. Priya Brat Narain Sinha, AIR 1965 SC 282, at para 20 has observed:
"... In actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive..." 14
(f) There is yet another reason why much reliance cannot be placed on the school records; the respondent- wife having been examined as DW.1, has produced and got marked certified copy of Voters List as Exhibit R.1; this mentions age of the appellant as being 22 years; Voters Lists/Electoral Rolls are prepared by the Registration Officer under the provisions of Registration of Electors Rules, 1960 which are promulgated under the Representation of People Act, 1950; Rule 13 prescribes the application in Form-6 for registering a person as a voter in the Parliamentary/Assembly elections; it needs to be filled up and signed by the person who seeks such registration; the Form requires material particulars such as name, address, age & occupation; it needs to be supported by requisite documents as well; any member of the public can oppose the claim for registration; Rule 18 r/w Rule 20 prescribe a summary enquiry as a pre-condition for registering a person as a voter; this being the legal 15 position, a stronger presumption as to correctness of the entries in the Voters List arises; true it is that, the said presumption not being a conclusive proof, is rebuttable; however, a heavy onus to rebut the same rests on the shoulders of the disputant; nothing is mentioned by the appellant as to why the contents of this Voters List should not be believed.
In the above circumstances, this appeal being devoid of merits, is rejected, costs having been made easy in the circumstances.
Sd/-
JUDGE Sd/-
JUDGE swk