Allahabad High Court
Smt. Pratibha vs Pramod Kumar on 17 February, 2020
Bench: Shashi Kant Gupta, Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 32 Case :- FIRST APPEAL No. - 709 of 2018 Appellant :- Smt. Pratibha Respondent :- Pramod Kumar Counsel for Appellant :- Sunil Kumar Srivastava Counsel for Respondent :- Chetan Chatterjee Hon'ble Shashi Kant Gupta,J.
Hon'ble Vipin Chandra Dixit,J.
This appeal under Section 19 of the Family Courts Act, 1984 (hereinafter referred to as "Act, 1954") has been filed against the order dated 27.9.2018 passed by Principal Judge, Family Court, Saharanpur in Original Suit No.1157 of 2017 under Section 11 & 12 of the Hindu Marriage Act whereby the application filed by the appellant under Order 7 Rule 11 and Section 151of C.P.C. has been dismissed.
The respondent-husband had filed petition under Sections 11 and 12 of the Hindu Marriage Act, 1955, (hereinafter referred as 'Act, 1955') to declare the marriage as void/voidable and illegal as the marriage was solemnized by concealing material facts and by playing fraud and the case was registered as Case No.1157 of 2017 (Pramod Kumar Vs. Smt. Pratibha). During the pendency of the suit, the appellant-wife had moved an application under Order 7 Rule 11 read with Section 151 of C.P.C. to dismiss the petition as not maintainable since it was filed without following the provisions of Act, 1955. The learned Court below rejected the application filed by the appellant-wife vide order dated 27.9.2018, which is impugned in the present appeal.
Heard learned Counsel for the parties and perused the material on record.
Learned Counsel for the appellant has submitted that since the suit has been filed within a year of the marriage, as such, it is not maintainable in view of Section 14 of the Hindu Marriage Act, 1955.
On perusal of the application filed by the appellant-wife, it clearly shows that the application is absolutely vague and filed on frivolous grounds. In the application it is stated that the suit is non-maintainable as the plaintiff-respondent has not filed the petition in accordance with the provisions of the Act, 1955 but it has not been mentioned as to which provision of Act, 1955 has not been complied with.
In the present case, it has been mentioned in the petition under Sections 11 & 12 of the Act, 1955 that the marriage was solemnized on 7.7.2017 (wrongly mentioned as 14.10.2016 in prayer clause) and the petition was filed on 6.11.2017.
Sections 11 & 12 of Act, 1955 are reproduced herein below:-
"11 Void marriages. ? Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 2[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
12 Voidable marriages .?(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:?
1[(a) that the marriage has not been consummated owing to the impotence of the respondent; or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 2[was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 3[or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage?
(a)on the ground specified in clause (c) of sub-section (1) shall be entertained if?
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied?
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 4 [the said ground]."
We have considered the submission of learned Counsel for the appellant and perused the provision contemplated in Section 11 and 12 of the Act, 1955. It may be noticed that Section 12(2)(a)(i) of Act, 1955 provides that no petition for annulling a marriage can be entertained if the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered, and as such the petition under the aforesaid provisions must be filed within a year. Hence the provisions of Section 14 of Act, 1955 are not applicable in the present case. The learned court below has not committed any illegality in rejecting the application filed by appellant-wife.
In view of the above, we do not find any illegality, infirmity or perversity in the impugned order dated 27.9.2018, which may warrant any interference by this Court. In the result, the appeal fails and is hereby dismissed.
Order Date :- 17.2.2020 S. Singh