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Per: Justice Vivek Rusia Appellant/wife has filed this present appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as "HMA") against a judgment dated 12.02.2014, whereby the 3 rd Additional District Judge, Ujjain (M.P.) has dismissed the suit filed under Section 12 of HMA.
02. Facts of the case in short are as under:
(v) of Section 5 of HMA. It is further submitted by the learned counsel that admittedly, this section does not include Clause (iii) of section 5 of HMA. Even under Section 12 of HMA, the marriage shall be voidable and may be annulled by a decree of nullity on the ground mentioned in clause (a) to (d). The learned Additional District Judge has dismissed the suit relying on a judgment passed by this Court in the case of Gindan V/s Barelal, AIR 1976 M.P. 83, but in the said judgment, the effect of Section 3 of The Prohibition of Child Marriage Act, 2006 (hereinafter referred as "PCMA, 2006") was not considered which says that every NEUTRAL CITATION NO. 2024:MPHC-IND:24245
-5- FA-450-2014 the marriage of the appellant and respondent cannot be declared voidable hence, the present appeal be dismissed.
We have heard learned counsel for the parties and perused the entire record.
Appreciation and conclusion:
06. Facts of the case which are not in dispute that the marriage of appellant and respondent was solemnized on 21.05.2009 and at the time of marriage, the appellant/wife was 15 years of age and the respondent/husband was suffering from blindness in one eye. The appellant filed a civil suit before the 3rd Additional District Judge, Ujjain seeking a declaration of marriage void / voidable under Section 5 r/w Sections 11 and 12 of HMA. After the establishment of the Family Court, this civil suit was not transferred to the Family Court, Ujjain and was tried as a Regular A-Class civil suit. The learned trial Judge recorded the findings in favour of the appellant that the marriage was solemnized on 21.05.2009 and at the time of marriage she was minor and one eye of the respondent did not have vision, but the suit has been dismissed that the marriage cannot be declared null and void on a petition presented by either of the party on the ground mentioned in Section 12 of HMA in which the breach of Clause (iii) of Section 5 does not find place.
-6- FA-450-2014 Court only by a contracting party to the marriage who was a child at the time of marriage. Therefore, the District Court is a competent Court under this Act of PCMA, 2006 to declare the marriage voidable in a petition filed for annulling the child marriage by decree of nullity.
08. In this case, the appellant was minor, therefore, she filed a civil suit under the guardianship of her father. However, by ignorance of the law, the decree of declaration of marriage void was sought under Sections 5, 11 and 12 of HMA instead of Section 3 of PCMA, 2006. This Child Marriage Act has been enacted with aims and objects to make provision to declare child marriage as voidable and give a legitimate status of a child born out of such marriage to empower the Court to issue injunctions prohibiting solemnization of the marriage of a minor child. The Hon‟ble Apex Court in the case of Independent Thought (supra) has held that a marriage contracted with a female less than 15 years or more than 15 years of age is not a void marriage, but it is only a voidable marriage.