Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1220 (MP)

Vijay Jaiswal v. Nisha Jaiswal

2008-10-15

A.K.MISHRA, SUSHMA SHRIVASTAVA

body2008
JUDGMENT Mishra, J. -- 1. The appeal has been preferred by the husband aggrieved by dismissal of his application seeking dissolution of marriage filed under section 12 of Hindu Marriage Act, 1955, same has been dismissed as barred by limitation vide impugned order dated 15.7.2005 passed by Family Court, Bhopal in RCS No. 66-A/05. 2. The controverted facts relevant for decision of the appeal are that marriage of appellant Vijay was performed with Smt. Nisha on 28.6.2003. The application was filed seeking dissolution of marriage on 21.2.2005. 3. It was claimed by the husband that he came to know on 15.1.2005 of pregnancy of wife, at the time of solemnization of marriage when he found certain prescriptions in which it was mentioned that wife was carrying pregnancy of 12 weeks on 15.7.2003 from someone else whereas marriage was performed two weeks before. Thus, the application for dissolution was filed under section 12 (1) (d) of Hindu Marriage Act. An application under Order 7 Rule 11, CPC was filed by the wife for dismissing the petition as barred by limitation as petition for dissolution of marriage under section 12 (1) (d) of Hindu Marriage Act could have been preferred within a period of one year from the date of performance of marriage. Application under Order 7 Rule 11, CPC has been allowed. The application filed under section 12 (1) (d) has been dismissed by the Family Court as barred by limitation. Dissatisfied thereby, the appeal has been preferred by the husband. 4. Shri R.D. Hundikar, learned counsel appearing for ~he appellant has submitted that provisions of section 12 (2) (b) (ii) and 12 (2) (b) (iii) have to be read together. He has submitted that it is provided in sub-clause (iii) of clause (b) of sub-section (2) of section 12 of the Act that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground. The respondent, at the time of marriage, was pregnant by some other person than the petitioner. The requirement of discovery of fact has to be imported into, sub-clause (ii) of clause (b) of sub-section (2) of section 12 dealing with limitation as word used between these two sub-clauses is 'and' not 'or'. The respondent, at the time of marriage, was pregnant by some other person than the petitioner. The requirement of discovery of fact has to be imported into, sub-clause (ii) of clause (b) of sub-section (2) of section 12 dealing with limitation as word used between these two sub-clauses is 'and' not 'or'. Consequently, the application preferred after about 19 months of the marriage has to be treated within limitation as the factum of having pregnancy was discovered by the husband on 15th January, 2005 though marriage took place in June, 2003. The application presented in the month of February, 2005 was, thus, within limitation from the date of discovery of factum of pregnancy of wife at the time of marriage from someone else. 5. The main question for consideration in view of the uncontroverted facts is about the period of limitation, from which date the period of limitation of one year has to be computed, with effect from the date of marriage or with effect from the date of discovery of the fact that wife was pregnant from someone else at the time of performance of marriage. Section 12 (1) (d) of the Act provides exigency in case respondent was ai the time of marriage pregnant by some person other than the husband. Such marriage shall be voidable and may be annulled by decree of nullity on such ground. Sub-section (2) of section 12 contains non-obstante clause and provides for limitation and certain other conditions as safeguards to the wife. Since, we are concerned with section 12 (1) (d), the non-obstante protection is provided in clause (b) of sub-section (2) of section 12, firstly that the husband was at the time of marriage, was ignorant of the fact of pregnancy from someone else at the time of marriage, secondly the proceedings have been instituted in the case of marriage solemnized after commencement of the Act within one year from the date of marriage and third requirement is that the marital intercourse with the consent of petitioner has not taken place since the discovery by the petitioner of the existence of the factum of pregnancy by some other person. Section 12 (1) (d) and 12 (2) (b) of the Act are quoted below: "12. Voidable marriages. Section 12 (1) (d) and 12 (2) (b) of the Act are quoted below: "12. Voidable marriages. -- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: (d) that the respondent was at the time of marriage pregnant by some person other than the petitioner. (2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage - (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the Court is satisfied - (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground." Plain reading of three requirements of clause (b) of sub-section (2) of section 12 of the Act makes it clear that all three have to co-exist at the same time. Husband must not be aware at the time of performance of marriage of the factum of pregnancy from someone else, and in case the marriage has been solemnized after commencement of the Act, the application has to be filed within one year from the date of marriage, and further after the date of discovery of the fact by petitioner marital intercourse with the consent of petitioner has not taken place as would constitute waiver of the ground. Sub-clause (iii) of clause (b) of sub- section (2) of section 12 is not independent provision and it has to coexist with requirement of other sub-clauses of clause (b) of sub-section (2) of section 12 of the Act. The provision of sub-clause (iii) of section 12 (2) (b) has no effect on the question of limitation dealt with in sub-clause (ii) of clause (b) of sub-section (2) of section 12. 6. The provision of sub-clause (iii) of section 12 (2) (b) has no effect on the question of limitation dealt with in sub-clause (ii) of clause (b) of sub-section (2) of section 12. 6. A Division Bench of this Court in Nandkishore v. Smt. Munnibai [ AIR 1979 MP 45 ] has held that petition for annulling of marriage under section 12 (1) (d) of the Act has to be preferred as provided in section 12 (2) (b) (ii) of the Act within one year from the date of marriage. Section 5 of Limitation Act is not applicable to such a petition. Action has to be taken within one year from the date of marriage not from the date of discovery of the fact. Division Bench of this Court has held thus: "Yet another submission in this regard which remains to be considered is this. Section 12 (2) (b) (ii) of the Act requires that the petition should be preferred within one year of the date of marriage. Counsel urges that for computing the period of one year the starting point should not be the date of marriage but the date when the fact of pregnancy was revealed to the appellant. According to him, in construing this clause, equitable considerations applicable to statutes of limitation may be invoked. The counsel invited our attention to section 17 of the Indian Limitation Act and urged that the time should not start running until the fraud is discovered. It is not the period of limitation which the Act prescribed in the sense the statutes of limitation do. All that it says is that action beyond specified period cannot be founded upon certain grounds. In Vellinayagi v. Subramaniam [ AIR 1969 Mad. 479 ] section 5 of the Limitation Act has not been held applicable to petition under section 12 of the Hindu Marriage Act. Considering like provisions under the Matrimonial Cause Act, 1937, the Court of Appeal in Chaplin v. Chaplin [(1948) 2 All ER 408] held that such equitable principles could not be applied to matrimonial causes. Provisions of section 7 (1) of the Matrimonial Causes Act, 1937, appear to be practically similar to those contained in clause (b) of section 12 (2) of the Act. Provisions of section 7 (1) of the Matrimonial Causes Act, 1937, appear to be practically similar to those contained in clause (b) of section 12 (2) of the Act. What has been observed in that case is this: "One must appreciate the subject matter with which it is dealing viz., proceedings to alter the status of the parties, the result of which will affect the children of the marriage, and that in all the cases specified in the sub-section. Parliament has thought fit to prescribe in the clearest possible language that the Court shall not grant a decree unless it is satisfied that proceedings were instituted within a year of the date of the marriage." It is pertinent to note that in earlier part of the Act, i.e., section 12 (2) (a) (i), it is specifically mentioned that the action should be launched within one year of the discovery of the fraud. We cannot read such words even by implication while construing sub-section (2) (b) (ii) of section 12. That course is not permissible. This contention of the learned counsel also fails." Similar is the view taken in Savlaram Kacharoo Mhatre v. Yeshodabai Savlaram Mhatre. AIR 1962 Bombay 190 and in Vellinayagi v. T. Subramaniam. AIR 1969 Madras 479. 7. In view of the uncontroverted fact that marriage took place 19 months before the date of presentation of application, it has been rightly dismissed as barred by limitation. Resultantly, we find no merits in the appeal. The appeal being devoid of merits is hereby dismissed. No costs.