Punjab-Haryana High Court
Sita Ram vs Santro on 19 August, 2013
Author: S.S. Saron
Bench: S.S. Saron
FAO No. 92-M of 2001 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No. 92-M of 2001
Date of decision : 19.08.2013
Sita Ram
.....Appellant
Vs.
Santro
.....Respondent
CORAM:HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE S.P. BANGARH.
Present : Mr. Arjun Lakhanpal, Advocate
for the appellant.
Mr. Vikas Kumar, Advocate
for the respondent.
***
S.S. SARON, J.
Santro-respondent filed a petition under Section 13 (2) (iv) of the Hindu Marriage Act, 1955 ('Act' - for short) seeking dissolution of the marriage between the parties by a decree of divorce. Her petition was allowed by the learned Additional District Judge, Hisar vide his judgment and decree dated 15.02.2001. The appellant Sita Ram aggrieved against the same has filed the present appeal.
The marriage between the parties was solemnized on 13.04.1992 at village Nayagaon, according to Hindu rites and ceremonies. According to respondent-Santro, the marriage was not consummated between the parties and she never lived with the appellant. At the time of marriage, the Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 2- age of respondent-Santro was 12 years and she had stayed at her in-laws house for one night only after marriage. Thereafter, she never visited the house of the appellant. The sister of the respondent-Santro namely Savitri was married to Rajesh the elder brother of the appellant. The marriage of the respondent's sister Savitri with the appellant's brother was consummated but the parents of the appellant and brother of the appellant had harassed the sister of the respondent for brining less dowry. Taking into consideration the nature of the family of the appellant, the respondent-Santro refused to reside in that house with the appellant.
The father of the respondent-Santro, in January 1997 alongwith respondent-Santro and members of the Panchayat went to the house of the appellant, where the respondent-Santro and her father asked the appellant and his family members to dissolve the marriage. The appellant, however, did not agree. Therefore, the respondent-Santro repudiated the marriage in January, 1997 in the presence of the Panchayat and also in the presence of her husband (appellant) and his family members. Respondent-Santro had clearly stated that she was not willing to join the society of the appellant and would not accompany him any more. The respondent-Santro had repudiated the marriage before attaining the age of 18 years. In January, 1997 at the time of filing the petition, respondent-Santro was aged about 18 years.
On notice, the appellant filed his written statement. Preliminary objections were raised that the petition was not maintainable, as respondent- Santro, as per her petition was a minor. Therefore, the petition was liable to be filed through her next friend; besides, the respondent-Santro was Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 3- estopped by her acts and conduct to file the petition. The petition had not been signed and verified in accordance with law. On merits, it was admitted that marriage between the parties was solemnized on 13.04.1992. It was submitted that the respondent was a minor at the time of marriage and he (appellant) was a major and was born on 01.04.1979. The marriage between the parties was admitted. However, it was denied that the marriage had not been consummated or that the respondent-Santro did not live with the appellant as his wife. It was stated that the question whether the marriage had been consummated or not was of no affect and in case the marriage was void and illegal, a petition under Section 12 of the Act was liable to be filed. The petition filed under Section 13 (2) (iv) of the Act was not maintainable. It was admitted as correct that sister of the respondent-Santro was married to the elder brother of the appellant. The elder sister of the respondent- Santro, it is stated was never harassed. She was leading a happy married life. No Panchayat was ever convened by the respondent-Santro to dissolve the marriage. The respondent-Santro was entrusted gold jewellery weighing about 80 gms 300 mgs consisting of 'hamel', 'tawiz', ear ring and 'tikka'. It is stated that in fact, respondent-Santro and her parents were greedy persons. They wanted to grab the gold. The respondent-Santro, it is stated was not 18 years.
From the pleadings of the parties, the learned trial Court framed the following issues:
1. Whether the petitioner (now respondent) is entitled to the decree of divorce as prayed for ? OPP
2. Whether the petition is not maintainable in the present form? OPR.
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3. Whether the petitioner (now respondent) is estopped from her acts and conduct to file the present petition? OPR.
4. Relief.
The learned trial Court decided issues No.1 to 3 together and reached the conclusion that the marriage between the parties was solemnized when the respondent-Santro was below 15 years of age and she had repudiated the marriage after attaining 15 years of age but before the age of 18 years. It was held that there was no evidence of the appellant which would show that the respondent-Santro was estopped from filing the petition by her acts and conduct. The respondent-Santro had attained the age of majority during the pendency of the petition, therefore, her petition cannot be held to be not maintainable. Consequently, respondent-Santro was held entitled to a decree of divorce. Accordingly, issue No.1 was decided in her favour and issues no. 2 and 3 were decided against the appellant.
It was also held that the respondent-Santro had stayed with the appellant at her matrimonial home for only one day at the time of marriage and, thereafter, she had never stayed there. Besides, the respondent-Santro admitted during cross-examination that jewellery weighing 86 gms 300 mgms was given to her, but according to her, the appellant had taken the same on the next day. The statement of respondent-Santro was held to be believable because the in-laws would not allow a minor girl of 12/13 years of age to take the jewellery with her, as she may not be able to keep the same properly and safe.
In view of the findings, the petition of the respondent-Santro was Sunder Sham allowed and, a decree of divorce by way of dissolution of marriage between 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 5- the parties under Section 13 (2) (iv) of the Act was passed in her favour.
The appellant aggrieved against the same, filed the present appeal alongwith CM No. 7631-CII of 2001 seeking condonation of 14 days delay in filing the appeal. On 01.05.2001, notice of motion on the application for condonation of delay was issued for 14.08.2001. On 14.08.2001, Mr. Vikas Kumar, Advocate put in appearance on behalf of the respondent and informed that the respondent had re-married before the filing of the present appeal. Mr. Atul Lakhanpal, Advocate for the appellant prayed for time to seek instructions and the case was adjourned to 09.10.2001.
On 09.10.2001, Mr. Vikas Kumar, Advocate stated that the respondent had been re-married after the expiry of the period of limitation and, therefore, the appeal had become infructuous. Mr. Atul Lakhanpal, Advocate on obtaining instructions from his client denied the said fact. The respondent was asked to file an affidavit in this regard and the case was adjourned to 21.01.2002. The case was taken up on 22.01.2002, on which date Mr. Atul Lakhanpal, Advocate for the appellant was present and delay of 14 days in filing the appeal was condoned and the appeal was admitted.
Thereafter, the matter was taken up in the Lok Adalat on 18.05.2002, on which date, both the parties were present. In terms of the proceedings recorded in the Lok Adalat, it was observed that during the course of re-conciliation efforts, it emerged that the respondent had conducted second marriage, therefore, there was no scope of any settlement between the parties and the case was returned to the registry for appropriate orders.
We have heard the learned counsel for the parties and perused the Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 6- record with their assistance.
The respondent-Santro examined herself as PW-1. She stated that she was married with the appellant, when she was 12 years of age. After marriage she remained with the appellant for one night only and, she had remained at her parents house for 5-6 years. Her elder sister was also married with the elder brother of the appellant. On the first day after marriage, the appellant and his family members demanded dowry in large quantity. At the time of marriage sufficient dowry and cash was given to the appellant and his family members. About 2-1/2 to 3 years earlier to her deposition in Court, which was made on 22.10.1999, she repudiated the marriage with the appellant when she was below 16 years of age. Again said she repudiated the marriage when she was 15 years of age. A Panchayat was convened consisting of herself, her father and Sarpanch and others. In the Panchayat, the appellant and his family members also demanded more dowry. Now, she did not want to accompany the appellant. In cross-examination, it is stated by the respondent that she filed a petition about 3 years ago. She was illiterate. She could not tell the exact date of her birth and at the time of her deposition on 22.10.1999, she was 18 years of age but she could not tell the month when she had attained this age. She had put thumb impressions on the petition. It is stated as correct that she was a minor at the time of filing the petition but she could not tell the year in which she was married. She was married 7 years back. Now her elder sister Savitri was residing with Rajesh the elder brother of the appellant. She did not know whether she had informed that her age was 18 years at the time of filing the petition. The Panchayat was convened in the summer Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 7- season of the year 1997. It is stated as correct that the appellant had entrusted gold jewellery weighing 86 gms and 300 mgms, but the appellant had taken that jewellery on the next day. The marriage was not consummated. It was incorrect that marriage was consummated and she remained at her matrimonial home for more than one day and her ration card was got issued from the concerned authority.
Ram Kumar father of the respondent-Santro was examined as PW-2 and he also deposed that his daughter Santro (respondent) was married with the appellant about 8 years back. The respondent-Santro was 12-13 years of age at the time of her marriage. She remained with her husband (appellant) for one day at his village Thirvi. The respondent- Santro never went to the house of the appellant after that. The appellant refused to allow the respondent-Santro to reside with him and he demanded scooter, fridge, cooler etc., as dowry from them. They went to the house of the appellant in shape of a Panchayat but even then the appellant demanded dowry. The respondent-Santro refused to join the matrimonial home of the appellant. The respondent-Santro was 16/17 years of age when she refused to go to the matrimonial home. The respondent-Santro was 19/20 years of age on the date of his deposition in Court, which was made on 16.02.2000. The respondent-Santro did not want to join her matrimonial home.
Ram Kishan was examined as PW-3. He deposed that he was Sarpanch of the village and they went to the house of the appellant in the shape of a Panchayat in January, 1997 to settle the dispute between the parties. They were 6-7 members of the Panchayat. Bhagwana father of the appellant, Rajesh brother of the appellant were present in the Panchayat. Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 8- However, the appellant was not there in the Panchayat. Bhagwana father of the appellant made dowry demands of motorcycle, T.V., fridge and stated that only then the respondent-Santro would be allowed to join the matrimonial home. He had tried to pacify the dispute between the parties by requesting Bhagwana father of the appellant not to make dowry demands, as the father of the respondent-Santro was a poor person but he did not agree to their request. So the Panchayat left village Thirvi. In cross-examination, it is stated by Ram Kishan (PW-3) that the appellant did not attend the Panchayat despite their calling him though he was roaming around the Panchayat. He did not have any talk with the appellant. Appellant came to their village only once at the time of their marriage, in the year 1992. Appellant did not make any dowry demand in his presence. It was incorrect to suggest that no Panchayat was taken to village Thirvi and he was deposing falsely at the instance of the father of the respondent-Santro.
The appellant-Sita Ram examined himself as RW-1. In his deposition, he states that his marriage with the respondent-Santro was performed about 8-9 years ago, from the date of his deposition, which was on 11.01.2001. His elder brother Rajesh was married on the same day with the elder sister of the respondent namely Savitri. The respondent-Santro lived at the matrimonial home only for one day at the time of marriage. Thereafter, she was taken by her parents. He never demanded any dowry and had never harassed her. In fact his parents had given 8 1/2 tolas of gold to the respondent-Santro at the time of marriage. The gold ornaments were still in possession of the respondent-Santro and her father. They had not returned the same to them. The respondent-Santro never came to their Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 9- village to reside at the matrimonial home. No Panchayat was ever convened by any family members of the respondent-Santro for sending her to the matrimonial home. The respondent did not come to his village to inform him or any other person of the village that she had repudiated the marriage. . He was still ready and willing to keep the respondent-Santro as his legally wedded wife. If asked he was ready to furnish security to treat the respondent properly. Savitri was residing with his brother happily and she had given birth to two children. They had never harassed Savitri on account of dowry. In cross-examination, it is stated by the appellant, that he had never gone to the village of the respondent-Santro for bringing her to the matrimonial home. It is stated as incorrect that in January 1997, the respondent-Santro, her father, Sarpanch and other respectables of the village came to his house and in presence of the Panchayat they raised demands of T.V., motorcycle and refrigerator; besides, in that Panchayat on account of his demands, the respondent-Santro repudiated her marriage with him. His marriage with the respondent-Santro was not consummated. The dowry articles given by the parents of the respondent-Santro in the marriage were with them. It was incorrect that they had also raised demands from Savitri or harassed her on account of dowry. It was incorrect that no gold ornaments were given by his parents to the respondent-Santro at the time of marriage. It was incorrect that he was deposing falsely.
Bhagwana father of the appellant was examined as RW-2 and he deposed on the same lines, as his son Sita Ram regarding the marriage between the parties being solemnized 8 1/2 years ago and also that they had given gold ornaments weighing 8 1/2 tolas to the respondent-Santro at the Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 10- time of marriage, which had not been returned. It is stated that the marriage was performed with the consent of the father of the respondent-Santro. In cross-examination, he denied that in January 1997, respondent-Santro, her father, Sarpanch and other respectables of the village came to their house and in that Panchayat they raised demands of T.V., refrigerator and motorcycle and on account of the said demands, the respondent-Santro repudiated her marriage with the appellant. It is stated that gold ornaments were given by them to the respondent in presence of his other family members.
Arjan Singh was examined as RW-3 and he states that the parents of the appellant had given 8 1/2 tolas of gold to the respondent; besides, no Panchayat of the respondent ever came to their village to repudiate the marriage. He denied that the appellant had demanded dowry from the respondent in the presence of the Panchayat that had come. It is stated as incorrect that the respondent had repudiated her marriage.
Lillu Ram was examined as RW-4. He stated that Bhagwana (RW-2) was his real brother and the appellant is the son of Bhagwana. Rajesh and Sita Ram (appellant) were married to Savitri and Santro (respondent), respectively about 8 years earlier to his deposition, which was made on 13.01.2001. He was the mediator, as he was married in the neighbourhood in her village. Gold ornaments i.e. 8 tolas were given by the parents of the appellant to Savitri and Santro-respondent each. In cross- examination, it is stated that the gold ornaments were given to the respondent at village Naya Gaon. He stated as incorrect that the respondent alongwith a panchayat had visited village Thirvi and they had demanded Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 11- more dowry from the respondent, so she had on that account refused to live with the appellant. The evidence of the respondent was closed.
The learned trial Court vide its impugned judgment dated 15.02.2001 has held that the respondent-Santro was 12/13 years of age at the time of the marriage and this evidence had not been rebutted by the appellant. It was observed that neither had it been pleaded nor any evidence had been led by the appellant that the respondent-Santro was 15 years of age at the time of her marriage. Therefore, it was held that there was no reason to disbelieve the evidence of the respondent regarding the fact that she was below 15 years of age at the time of her marriage.
The question regarding repudiation of the marriage after respondent-Santro had attained the age of 15 years but before attaining the age of 18 years, was also considered. After considering the evidence on record it was held that the respondent-Santro had repudiated the marriage in January, 1997. It was observed that the respondent in her examination-in- chief had not mentioned the year of repudiation of marriage but during her cross-examination she stated that a panchayat was convened in the summer season of the year 1997. It was also observed that the appellant while appearing as RW-1 and Arjan Singh (RW-3) had only denied the factum of the panchayat being held in January, 1997 and repudiation of marriage by the respondent in that panchayat but their statements were not sufficient to rebut the evidence of the respondent. It was noticed that the respondent had stayed with the appellant at matrimonial home only for one day after the marriage. It was not the case of the appellant that he ever made any effort to bring the respondent to the matrimonial home. The said fact indicated that Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 12- the respondent was not willing to reside with the appellant as his wife and she had repudiated the marriage and for that reason the appellant had not made any effort to bring her to their matrimonial home. The learned trial Court accordingly held that the marriage between the parties was solemnized when the respondent was below 15 years of age and that she repudiated the marriage after attaining that age but before the age of 18 years.
The question of filing the petition by a minor without a next friend was also considered and it was held to be a mere irregularity and did not make the suit or proceedings wholly bad, but it only made a defect in the proceedings. Besides, the respondent had already attained the age of majority and she had acquired a right to elect to proceed with the petition, as if the same had been filed through next friend. Therefore, the irregularity stood cured and in the circumstances from the said irregularity in the petition it could not be held that the petition was not maintainable.
We have given our thoughtful consideration to the case. The petition for grant of divorce was filed by the respondent-Santro is in terms of Section 13 (2) (iv) of the Act, which reads as under:
13 Divorce:- (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground;-
(i) X X X X
(ii) X X X X
(iii) X X X X
(iv) that her marriage (whether consummated or not) was
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solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation:- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.
A perusal of the above provision shows that the wife alone is entitled to seek dissolution of her marriage by a decree of divorce on the ground that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she repudiated the marriage after attaining that age but before attaining the age of eighteen years. Section 5 of the Act envisages the conditions for a Hindu marriage. The conditions to be fulfilled for a Hindu marriage have been set out therein. Clause (iii), thereof, which is one of the conditions provides that the bridegroom should complete the age of 21 years and the bride the age of 18 years at the time of marriage. However, in terms of Section 13 (2) (iv) if the bride was below the age of fifteen years at the time of her marriage and she repudiates her marriage after attaining the age of fifteen years but before she attains the age of eighteen years, she can seek a decree of divorce. The option to repudiate the marriage is only with the wife. It is to be noted that though the minimum age for marriage for a girl is eighteen years, however, child marriage or marriages of girls below the age of fifteen years are quite common. By the said provision an opportunity is given to girls to get out of the marriage after reaching the age of fifteen years but before eighteen years if the marriage is found by them to be irrational. Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 14- Respondent-Santro while appearing as PW-1 stated that about 2- 1/2 to 3 years ago from the date of her deposition in Court, which was made on 22.10.1999, she repudiated her marriage with the appellant when she was below 16 years of age. It was again stated that she repudiated her marriage when she was 15 years of age. A panchayat was convened consisting of herself, her father (Ram Kumar-PW-2) and Sarpanch (Ram Kishan-PW-3) and others. In cross-examination, in response to the suggestion in this regard, it is stated by her as incorrect that the marriage was never repudiated. Ram Kumar (PW-2) father of the respondent-Santro has supported her case. He stated that respondent-Santro was 12/13 years of age at the time of her marriage. She remained with her husband for one day only at his village Thirvi. She was 16/17 years of age when she refused to go to the matrimonial home. At the time of his deposition i.e on 16.02.2000, she was 19/20 years of age. The date of birth of the appellant- Sita Ram, it has come on record is 01.04.1979. At the time of marriage between the parties on 13.04.1992, he was also about 13 years of age. Marriages of children at such impressionable and susceptible age are unhealthy and the latest legislative intent by enacting the Prohibition of Child Marriage Act, 2006 is to prohibit solemnization of child marriages. In the present case the respondent having repudiated her marriage, no fault can be found with the same. Her action in repudiating the marriage is in consonance with the legislative intent of Section 13 (2) (iv) of the Act.
The appellant-Sita Ram (RW-1) in his deposition states that the respondent-Santro never came to their village to reside at the matrimonial home. In cross-examination, he accepts that his marriage with the Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh FAO No. 92-M of 2001 - 15- respondent was not consummated.
The facts and circumstances as also the evidence on record evidently show that marriage between the parties indeed had not been consummated; besides, the learned trial Court accepted the case of the respondent-Santro that the marriage between the parties had been repudiated by her. There is nothing to dislodge the conclusions reached at by the learned trial Court. The learned trial Court having taken a correct view of the facts and circumstances of the case, no ground is made out for interference with the same.
Consequently, there is no merit in the appeal and the same is, accordingly, dismissed.
(S.S. SARON)
JUDGE
(S.P. BANGARH)
August 19, 2013 JUDGE
sham
Sunder Sham
2013.10.09 21:40
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of this document
Punjab and Haryana High Court,
Chandigarh