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2004 DIGILAW 545 (PNJ)

Sunita Devi v. Roshan Lal

2004-05-12

V.M.JAIN

body2004
Judgment V.M.Jain, J. 1. This appeal has been filed by the petitioner wife against the judgment dated 17.12.1996 passed by the Additional District Judge, dismissing her petition under Section 11 and in the alternative under Section 13 of the Hindu Marriage Act. 2. The facts in brief are that on 8.1.1996, Smt. Sunita Devi, petitioner filed a petition under Section 11 and in the alternative under Section 13 of the Hindu Marriage Act against the respondent husband Roshan Lal for declaring the marriage between them as null and void by passing a decree of nullity and in the alternative for dissolving the marriage by a decree of divorce. In the petition it was alleged that the marriage between the parties was solemnised on 17.6.1986 and that at the time of marriage the petitioner wife was a child of the age of 8-9 years and as such the marriage between the parties was nullity and was liable to be declared as null and void. It was alleged that considering the tender age of the petitioner she was not sent to the house of the petitioner-husband at the time of marriage and the muklawa ceremony was performed between the parties only about 8 months back and at the time of muklawa ceremony the petitioner was told that the age of the respondent was about 25 years. It was alleged that after the muklawa ceremony the petitioner was sent to the house of the respondent where she lived only for seven days and there she came to know that the respondent was aged about 50 years and the respondent and other persons had wrongly given the age of the respondent as 25 years. it was alleged that it was only on coming to the house of the respondent that the petitioner came to know for the first time that he was aged above 50 years and even from his act and conduct she guessed the age of the respondent being above 50 years. it was alleged that it was only on coming to the house of the respondent that the petitioner came to know for the first time that he was aged above 50 years and even from his act and conduct she guessed the age of the respondent being above 50 years. It was alleged that the petitioner had not consented to the aforesaid marriage and even to the muklawa ceremony and had not seen the respondent before she reached the house of the respondent and she had no opportunity to see the respondent at the time of marriage and muklawa and it was only when she reached his house that she came to know of his age and she was astonished to see his age and to see that he was an old man, three time elder of her in age and she came to know that fraud had been played upon her. It was alleged that she had never agreed to the marriage and muklawa ceremony and as such she refused to allow the respondent to cohabit with her. It was alleged that the respondent gave severe beating to the petitioner and had intercourse with her by force and against her will and consent. It was alleged that she lived at the house of the respondent only for seven days and finding her life in danger she came to her parental house and told entire incident to her family members. It was alleged that the respondent had treated her with cruelty and it was not possible for her to live with the respondent. 3. The respondent-husband contested the petition and filed the written statement taking up various preliminary objections including the plea that the petitioner was above the age of 18 years at the time of her marriage with the respondent. It was alleged that the marriage had taken place in the month of January, 1995. It was alleged that as per the custom in the Gujjar community, to which the parties belonged, the marriage is complete only after the muklawa ceremony. It was alleged that the petitioner was major at the time of her marriage and was 18 years of age and the marriage was performed ac cording to the law. It was alleged that as per the custom in the Gujjar community, to which the parties belonged, the marriage is complete only after the muklawa ceremony. It was alleged that the petitioner was major at the time of her marriage and was 18 years of age and the marriage was performed ac cording to the law. It was alleged that the petitioner stayed at the house of the respon dent for about 15 days after muklawa and the parties cohabited with each other but no issue was born It was alleged that the age of the respondent was about 40 years. It was alleged that the petitioner was major at the time of marriage and also at the time of muklawa and she had consented to the marriage and muklawa and stayed with the respondent for 15 days after muklawa and cohabited with him of her own free will and consent. It was alleged that the respondent had kept the petitioner with full love and affection and never treated herewith cruelty, as alleged. 4. Rejoinder was filed. Various issues were framed. Both sides led evidence. After hearing both sides and perusing the record learned Additional District Judge, vide judgment and decree dated 17.12.1996 dismissed the petition filed by the petitioner wife holding that the petitioner wife was neither entitled to a declaration that her marriage was void under Section 11 nor she was entitled to a decree of divorce under Section 13 of the Hindu Marriage Act, holding that the petitioner wife had failed to prove that she was aged about 8-9 years at the time of her marriage or that the marriage was null and void. Aggrieved against the same, petitioner wife filed the present appeal in this Court. 5. Alongwith the appeal the petitioner wife filed an application under Order 6 Rule 17 read with Section 151 CPC, for amendment of the petition so as to treat it as a petition under Section 12 of the Hindu Marriage Act, instead of Section 11 of the Act and for passing a decree of nullity on the ground that the marriage was voidable and in the alternative for the dissolution of marriage under Section 13 of the Act. The respondent husband filed reply to the said application, alleging therein that no case for amendment of the petition was made out and that the petitioner had specifically filed petition under Section 11 and in the alternative under Section 13 of the Act and no case was made out for allowing the petitioner to treat the present petition under Section 12 instead of Section 11 of the Act. 6. I have heard the learned counsel for the parties and have gone through the record carefully. 7. Learned counsel for the appellant wife submitted before me that instead of petition under Section 11 the present petition should be treated as a petition under Section 12(1)(c) of the Hindu Marriage Act and the appellant wife may be allowed to amend the petition to that extent. This prayer has been opposed by the learned counsel for the respondent husband. After hearing the learned counsel for the parties and perusing the record, in my opinion, no case for allowing the appellant wife to amend the petition and to convert it into a petition under Section 12(1)(c) instead of petition under Section 11 of the Act is made out. As referred to above, in the petition the main plank for getting the marriage between the parties declared as a nullity was that the petitioner wife was aged 8-9 years at the time of her marriage whereas the respondent was aged 50 years and that .she was never informed about the age of the respondent and she had never con sented to the said marriage. Under Section 11 of the Act, any marriage solemnised after the commencement of the said Act shall be treated as null and void and may be so declared by a decree of nullity if it contravenes any of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the Act. So far as the age being one of the conditions for the marriage is concerned, the same is given in Clause (iii) of Section 5 of the Act. Thus on the face of it, the marriage in question could not be declared void under Section 11 of the Act on the ground that the petitioner was aged only about 8-9 years at the time of marriage. Thus on the face of it, the marriage in question could not be declared void under Section 11 of the Act on the ground that the petitioner was aged only about 8-9 years at the time of marriage. Further more, even under Section 12 of the Act, the marriage would be voidable and may be annulled by a decree of nullity on the various grounds detailed in Section 12(1) of the Act. So far as the age of the parties is concerned, it is not a ground for declaring the marriage a nullity even under Section 12 of the Act. However, under Section 12(1)(c) of the Act, it is provided that where the consent of the petitioner or where the consent of the guardian in marriage of the petitioner was required under Section 5, the consent of the petitioner or guardian was obtained by force or fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent. In the present case, the petitioner being aged about 8-9 years as alleged by the petitioner, would not be a ground even for the seeking the marriage to be annulled by a decree of nullity under Section 12 of the Act. A marriage could be declared nullity under Section 12(1)(c) of the Act if the consent of the petitioner or her guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. 1C the petitioner was aged about 8-9 years at the time of marriage as alleged by the petitioner, the question of consent of the petitioner did not arise as under law she was not capable of giving her consent being a minor. So far as the consent of the guardian is concerned, there is no such allegation in the petition that the consent of her guardian was obtained by force or fraud. There is no prayer made by the petitioner in the application under Order 6 Rule 17 CPC for amending the petition in this regard. The only prayer made is to amend the petition with regard to the title and the prayer clause. There is no prayer made by the petitioner in the application under Order 6 Rule 17 CPC for amending the petition in this regard. The only prayer made is to amend the petition with regard to the title and the prayer clause. Even if such a plea is allowed and the petitioner is allowed to amend the petition to the extent indicated in the application, still in my opinion, it would be of no consequence since there is no allegation in the petition that the consent of her guardian was obtained by fraud or by force. Thus, in my opinion, no case for amendment of the petition is made out. Accordingly, the application under Order 6 Rule 17CPC being without merit is hereby dismissed. 8. Coming on merits, it has been submitted before me by the learned counsel for the appellant that the learned trial court had erred in law in holding that the petitioner had failed to prove that she was aged about 8-9 years at the time of her marriage. It has been submitted that from the testimony of PW2 Smt. Sunita Devi, petitioner and her mother Smt. Liaki Devi as PW3 coupled with the birth certificate Ex.P1, it stands proved on the record that the petitioner was born on 28.10.1975 whereas the marriage had taken place on 17.10.1986 and as such she was aged 10-11 years at the time of her marriage. However, I find no force in these submissions of the learned counsel for the appellant. PW2 Smt. Sunita Devi, petitioner gave her age as 18 years while appearing in the witness box on 11.10.1996. She stated that she was married with the respondent about 15-16 years back and again stated about 12-13 years back and was only 10 years old. She further stated that muklawa ceremony had taken place about 1-1/2 years back and that at the time of muklawa ceremony she was told that the respondent was aged about 20 years but when she had gone to live with the respondent and saw him 2-3 days after muklawa, she found that he appeared to be 60-70 years. She further stated that the respondent had enjoyed sex with her by force and when she told the respondent that she did not want to live with old man he gave beating to her. She further stated that the respondent had enjoyed sex with her by force and when she told the respondent that she did not want to live with old man he gave beating to her. She stated that the respondent was not shown to her either at the time of marriage or at the time of muklawa and her consent was not obtained for the marriage. During cross examination she admitted that the marriage ceremony was performed in the village and the respondent had not covered his face at the time of marriage. She admitted that respondent was seen by her parents, relatives and villagers and that her father had settled the marriage with respondent and her father was accompanied by a number of persons at the time of settlement of marriage. She stated that she did not know her date of birth. She admitted that in their community the marriage is treated complete only on the occasion of muklawa ceremony. She denied the suggestion that she was 24 years old or that she was aged about 17-18 years at the time of marriage and about 23 years at the time of muklawa. She also denied the suggestion that the respondent was aged about 35 years or that at the time of marriage as well as muklawa she know that he was elder to her. She stated that she had two elder sisters and two elder brothers who were all married and they were married before her marriage. She denied the suggestion that she had understated her age or that the respondent had never given her beating. The petitioner produced her mother Smt. Liaki Devi as PW3. She stated that the age of the petitioner was about 8 or 10 years at the time of marriage which had taken place about 10-11 years back and that the muklawa ceremony took place about 1 year back. She stated that after return (after muklawa) the petitioner told her that she did not want to live with the respondent as neither there was any wheat flour nor anything for preparing tea and that the respondent had nothing at his house and was an old man and for this reason she did not want to live with him. She stated that at the time of marriage the respondent had given his age as 20-21 years. She stated that at the time of marriage the respondent had given his age as 20-21 years. During cross-examination, she admitted that her husband was alive and that her husband had settled the marriage by going to the village of the respondent. She also admitted that after settling the marriage a letter was sent for marriage party and the said letter was written in the presence of the Panchayat and in accordance with the said letter the respon dent had brought the marriage party and the marriage ceremony was performed. She also admitted that after the marriage they had sent message for muklawa and respondent had come with 8-10 persons and the petitioner was sent with him. She stated that she had seen the respondent at the time of muklawa ceremony She admitted that the petitioner had come up of age at the time of muklawa ceremony. She admitted that in the Gujjar community marriage is complete at the time of muklawa ceremony. She denied the suggestion that the petitioner was aged about 17-18 years at the time of marriage or that she was aged about 23 years at the time of muklawa. Besides the petitioner herself appearing in the witness box as PW2 and her mother as PW3, the petitioner also examined her neighbour Mam Raj as PW4 and her brother Ram Saran as PW5. Besides that PW1 Sudesh Kumar from the office of Civil Surgeon, Ambala had produced birth certificate Ex.PI. From the entire evidence led by the petitioner, as referred to above, in my opinion, the petitioner has miserably failed to prove that she was aged about 8-9 years at the time of her marriage with the respondent or that marriage between the parties was void or voidable or was liable to be declared nullity. Similarly, the petitioner has miserably failed to prove that the respondent had treated her with cruelty or that on that account she was entitled to get the marriage dissolved by a decree of divorce. Birth Certificate Ex.P1 gives the name of the child as Krishna Devi born on 28.i0.1975 and the name of father is given as Ratna. This birth was registered on 28.10.1975. in my opinion, in the absence of specific evidence the birth certificate Ex.P1 cannot be connected with the petitioner Smt. Sunita Devi. Birth Certificate Ex.P1 gives the name of the child as Krishna Devi born on 28.i0.1975 and the name of father is given as Ratna. This birth was registered on 28.10.1975. in my opinion, in the absence of specific evidence the birth certificate Ex.P1 cannot be connected with the petitioner Smt. Sunita Devi. Neither PW2 Smt. Sunita Devi nor PW3 Smt. Liaki Devi had said anything about the birth certificate pertaining to the petitioner or she being called as Krishna Devi. In the absence of any evidence led by the petitioner in this regard, in my opinion, the petitioner cannot take any benefit of the birth certificate Ex.P1 Furthermore, as referred to above, the petitioner miserably failed to produce her father Rana Ram in support of her case especially when it was case of the petitioner herself that it was her father who had gone to the village of the respondent to settle the marriage of the petitioner with the respondent. Nothing has come on the record to show that there is no other person by the name of Ratna son of Bhuru in village Bhoor and as such the: birth certificate Ex.P1 cannot be said to be relating to the petitioner. Thus it could not be said that the petitioner was aged about 10-11 years at the time of her marriage with the respondent. Further more, with regard to the alleged cruelty, as referred to above, PW2 Smt. Sunita Devi petitioner had stated that she was given beating by the respondent when she told the respondent that she did not want to live with him. She further stated that she told this fact to her parents on her return to her house. However, when her mother appeared in the witness box as PW3, she did not say a word about the alleged beating and only stated that the petitioner did not want to live with the respondent because of his poverty and old age. So far as PW5 Ram Saran brother of the petitioner is concerned, he simply stated that the respondent had given beating to the petitioner. This he had stated as per the information given to him by the petitioner herself. He admitted that no quarrel had taken place when he had brought the petitioner from the house of the respondent. So far as PW5 Ram Saran brother of the petitioner is concerned, he simply stated that the respondent had given beating to the petitioner. This he had stated as per the information given to him by the petitioner herself. He admitted that no quarrel had taken place when he had brought the petitioner from the house of the respondent. He also admitted that at that time he had assured the respondent that he would send her back after about 4 days. In my opinion, from the evidence led by the petitioner, it could not be said that the respondent had treated the petitioner with cruelty. This is especially so when Roshan Lal, respondent while appearing in the witness box as RW1 had specifically denied the allegations against him in this regard. 9. In view of my detailed discussion above, in my opinion, there is no merit in this appeal. Accordingly, the same is hereby dismissed.