Punjab-Haryana High Court
Pinki Rani vs Bittu Ram on 22 July, 2013
Author: S.S.Saron
Bench: S.S.Saron
FAO NO.M-203 OF 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO NO.M-203 OF 2013
Decided on:- 03.07.2013
Pinki Rani ..............Appellant
versus
Bittu Ram ................Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present:- Mr. Rakesh Gupta, Advocate,
for the appellant.
*******
S.S.SARON,J Heard learned counsel for the appellant.
The appeal has been filed by the appellant against the judgment and decree dated 16.05.2013, passed by the learned Additional District Judge, Kaithal, whereby, the petition filed by the appellant seeking decree for annulment of the marriage between the parties in terms of Section 12 of the Hindu Marriage Act, 1955 ('Act' for short) has been dismissed.
The marriage between the parties was solemnized on 09.12.2008 according to Hindu rites and ceremonies at village Khanoda. The marriage was, however, not registered. According to the appellant, her father spent about ` 4,50,000/- on the marriage. It was informed by the respondent's family that the respondent was older in age than the appellant. Later she came to know that the actual date of birth of the respondent is 25.12.1992. Therefore, it is alleged that the respondent solemnized his marriage in contravention of Section 5 (iii) of the Act. Besides, it is alleged by the Mamta 2013.07.22 15:11 I attest to the accuracy of this order Chandigarh FAO NO.M-203 OF 2013 2 appellant that due to tender age of the respondent, he was unable to consummate the marriage and perform sexual intercourse as he was impotent. Therefore, the appellant was suffering from mental and legal cruelty.
In the reply filed by the respondent, it was inter alia stated that the respondent was capable of consummating the marriage. Infact it was the appellant who was barren and under treatment of a gynecologist. She had suppressed the true and material facts from the Court. It is submitted that the marriage was an exchange marriage as the sister of the respondent namely Neelam Devi was married to Mahender Singh son of Kali Ram of village Khanoda, a cousin of the appellant. It was alleged that the appellant was a quarrelsome lady and she was under the influence of her father and maternal uncle namely Ramesh. She used to insult the respondent and his family members without any reason. The father of the appellant was a greedy person and wanted to grab the ornaments given by the uncle of the appellant namely Kali Ram. Behaviour of the appellant was cruel towards the respondent and his family members. When they were to attend the marriage party of the son of the maternal uncle of the respondent at village Murtja Pur, then the appellant asked for going to her parental home for getting the ornaments but thereafter, she refused to attend the marriage party. The marriage between the parties was consummated and the respondent was physically and mentally fit to cohabit the marriage with the appellant.
On the pleadings of the parties, the following issues were framed:-
1. Whether the petitioner (now appellant) is entitled to annulment of marriage by way of a decree of nullity on the ground that bridegroom has not attained the age of 21 years at the time of marriage as per Section 5(iii) of the Hindu Marriage Act? OPP
2. Whether the petition is not maintainable?OPR
3. Relief.
Mamta 2013.07.22 15:11 I attest to the accuracy of this order Chandigarh FAO NO.M-203 OF 2013 3 The learned Additional District Judge, Kaithal after considering the evidence and material on record dismissed the petition. Aggrieved against the same, the appellant has filed the present appeal.
Learned counsel for the appellant, during the course of hearing, accepts the fact that the respondent had not attained the age of 21 years at the time of marriage is not a ground on the basis of which a marriage can be annulled. He, however, submits that the respondent was impotent to consummate the marriage and, therefore, in terms of Section 12(1)(a) of the Act, the marriage was voidable and was liable to be annulled.
We have given our thoughtful consideration to the contentions of the learned counsel for the appellant. Indeed, the appellant could not seek annulment of the marriage on the ground that the respondent was below the age of 21 years at the time of marriage as it is not a ground for void marriages under Section 11 of the Act or a voidable marriage under Section 12 of the Act.
It has come in evidence that the date of birth of respondent was 25.12.1992 and the marriage between the parties was solemnized on 09.12.2008. Therefore, the respondent was about 16 years of age at the time of marriage. However, it has also come in evidence that the date of birth of the appellant is 05.10.1987. Therefore, she was above 21 years of age at the time of marriage. The infringement of the provisions of Section 5(iii) of the Act does not make the marriage voidable in terms of Section 12 of the Act.
As regards the plea regarding impotency, it may be noticed that there is only a bald statement of the appellant herself that the respondent is impotent and unable to perform sexual intercourse. The main ground on which the matrimonial relief for annulment of marriage was sought, was that the marriage was in violation of Section 5 (iii) of the Act and the appellant Mamta 2013.07.22 15:11 was elder in age. Impotency of the respondent was pleaded only as a matter I attest to the accuracy of this order Chandigarh FAO NO.M-203 OF 2013 4 of fact that she being elder in age and the respondent being of a tender age was unable to consummate the marriage. The first ground having failed, the appellant cannot urge the court to draw an inference that because of tender age, the respondent was unable to consummate the marriage. Moreso, when there are no particulars as to how and when did she come to know that the respondent is impotent.
Learned Additional District Judge, Kaithal perused the entire testimony of the witnesses and observed that the witnesses did not convey that the marriage was not consummated, rather it appeared that the marriage was consummated by the respondent as he nowhere deposed that he failed to consummate the marriage or perform sexual intercourse.
We have also asked learned counsel for the appellant as to whether any question was put to the respondent when he appeared in the witness box that he was unable to consummate the marriage and he stated that no such question was put. It is well known that a party is to put its case to a witness in cross examination when he is appearing in the witness box and on his failure to do so adverse consequences ensue. Therefore, we find no infirmity with the judgment and decree passed by the learned Additional District Judge, Kaithal and consequently, there is no merit in the appeal.
Accordingly, the appeal is dismissed.
(S. S. Saron) Judge (S. P. Bangarh) Judge 03.07.2013 mamta Mamta 2013.07.22 15:11 I attest to the accuracy of this order Chandigarh