Madhya Pradesh High Court
Bhagwati Prasad Shivhare vs Sanyog Jaiswal on 19 December, 2017
THE HIGH COURT OF MADHYA PRADESH
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MP-1346-2017
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(BHAGWATI PRASAD SHIVHARE Vs SANYOG JAISWAL)
Jabalpur, Dated : 19-12-2017
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Shri Ajeet Kumar Rawat, learned counsel for the petitioner.
Shri Sanjay K. Agrawal, learned counsel for the respondent.
ad This petition, under Article 227 of the Constitution of India has M been filed challenging the order dated 3.10.2017 passed by the Principal Judge, Family Court, Satna allowing the application under of Order 1 Rule 10 (4) read with Order 6 Rule 17 of CPC joining the rt applicants/petitioners as party to the proceedings being parents of ou respondent no.2.
Learned counsel for the petitioners contends that the suit was C filed for annulment of the marriage under Section 12 of the Hindu h Marriage Act. The marriage was solemnized in between husband ig (respondent no.1) and wife (respondent no.2). The said annulment H may be either on the ground that the marriage has not been consummated owing to impotency and the marriage is in contravention of the conditions specified in clause (ii) of Section 5 of the Hindu Marriage Act. The ground raised for annulment is one of the ground specified in clause (ii) of Section 5 of the Act but for declaration of the said marriage as voidable, the parents of the girl cannot be said to be either necessary or proper party in a case to complete adjudication and settle all the questions involved. In addition, it is urged that the application has been filed after two years of filing of the suit at a belated stage after commencement of the trial, that too is not permissible without liberty of hearing to the petitioners.
On the other hand, learned counsel representing the respondent sh submits that looking to the pleadings made in para-21 of the plaint e filed by the respondent no.1, the parents by misrepresentation ad solemnized the marriage, therefore, they are the necessary party of the present case, however, trial Court has rightly allowed the application Pr by the order impugned to which interference by this Court in exercise a of the power under Article 227 of the Constitution of India is not hy warranted.
ad After hearing learned counsel appearing on behalf of both the parties and on perusal of Section 12 of the Hindu Marriage Act, it M deals the ground for voidable marriage. It indicates that any marriage of solemnized before/after the commencement of the Act may be voidable and may be annulled by the decree of the Court on the rt ground that such marriage has not been consummated owing to the ou impotency of the respondent. In addition, if the marriage was C solemnized in contravention of the conditions specified in clause (ii) h of Section 5 of the said Act, the ground as available in Section ig 12(1)(c) is not a ground as specified but it is required to be seen by the H trial Court, therefore, I am not making any observation in this regard. In any case, if this Court visualizes the condition of Section 12(1)(b) then it relates back to clause (ii) of Section 5 of the Act. The said clause deals the incapability of giving valid consent to the marriage in consequence of unsoundness of mind or it further indicate the giving of valid consent on account of suffering from mental disorder of such kind or to such extent as to be unfit for marriage and the procreation of children and also that one of the parties is suffering from recurrent attack of insanity.
In a suit seeking annulment of the marriage, it is in-between the husband and wife because the annulment is sought for therein. The issue of annulment of marriage, if any, raised on very many grounds sh may not be a cause to say that on account of non-joining of the parents e in a suit for annulment of the marriage, the issues cannot be ad effectively, completely adjudicated upon and to settle all the questions so involved in the case which is a requirement to say that a particular Pr person may be a necessary or proper party in a proceeding. Therefore, a considering the aforesaid aspects, in my considered opinion, the trial hy Court has committed a gross illegality, while allowing the application ad filed by the respondent no.1 joining the applicants/petitioners as a party to the proceedings. Here, it is relevant to observe that in any M case, looking to the pleading of para-21 of the plaint, the of applicant/petitioners may be the person whose appearance as witness may be necessary but it would not be justified qua to join them as a rt party to the proceedings in the case.
ou In view of the foregoing observations, in my considered opinion, C the order passed by the trial Court stands set aside and the trial Court h is directed to proceed with the case and decide it as early as possible. ig With the aforesaid observations, the petition stands allowed and H disposed of.
(J.K. MAHESHWARI) JUDGE PK Digitally signed by PARITOSH KUMAR Date: 2017.12.21 16:45:35 +05'30'