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2016 DIGILAW 499 (CAL)

Priyanka Das v. Sujit Kumar Das

2016-06-23

NISHITA MHATRE, TAPASH MOOKHERJEE

body2016
JUDGMENT : Nishita Mhatre, J. The appeal is preferred against the decision of the Family Court, Calcutta, in Matrimonial Petition No. 50 of 1998. The suit was filed for a declaration that the marriage between the petitioner and the respondent, i.e., the appellant and the respondent herein was null and void. That prayer has been dismissed by the Family Court. However, it has granted a decree of divorce and the marriage solemnized on 18thDecember, 1996 has been dissolved. 2. The brief facts giving rise to the present appeal are as follows: The appellant, Priyanka Das while still a minor, had been lured out of her school by the respondent and had been kidnapped by him with the help of his friends. She was driven away to a place where she found that arrangements had been made by the respondent for solemnizing their marriage. After the rituals she was made to sign some blank papers. After the marriage was solemnized as per the Hindu customs and rituals on 18th December, 1996, the couple lived in Siliguri for a few days and returned to Kolkata on 23rd December, 1996. Priyanka was rescued with the help of the police on 25th December, 1996. Priyanka's mother Sonali Das then filed the present suit before the Family Court on her behalf as Priyanka was still a minor. The main contentions raised in the plaint were that the bride and bridegroom were within the prohibited degrees of relationship and therefore the marriage was null and void. It was also pleaded that Priyanka being a minor at the time of marriage had been coerced into the marriage. Besides this it was pleaded that Priyanka had been compelled to marry the respondent under duress. It was also pleaded that the marriage took place because of the fraud perpetrated by the respondent who was her mother's cousin and who Priyanka regarded as her uncle. 3. A written statement was filed by the respondent Sujit Kumar Das contending that the parents of Priyanka Das had consented to the marriage and that he had not in any manner compelled Priyanka to marry him. It is further pleaded that although initially the mother of Priyanka, Sonali Das was to participate in the marriage ceremony, she went back on her word and filed a police complaint against the respondent and thereafter the present suit. It is further pleaded that although initially the mother of Priyanka, Sonali Das was to participate in the marriage ceremony, she went back on her word and filed a police complaint against the respondent and thereafter the present suit. Significantly, the respondent has not denied the fact that the appellant's mother was his first cousin or that the appellant was a minor when they got married. 4. Evidence was led by both the parties before the Court in support of their respective contentions. The appellant examined herself, her parents and an uncle. All the witnesses have corroborated each other's testimony. Each of them has reiterated that the appellant was a minor at the time of marriage and that she was the daughter of the first cousin of the respondent. Priyanka has described how she was lured out of school by the respondent and was later kidnapped. She has been cross-examined in great detail. However, she has stood her ground and has not swayed away from her statements made in the examination-in-chief. 5. The respondent examined himself and Gopal Poddar, Biswajit Kar and Ashok Ghosal. Ashok Ghosal was the priest, who solemnized the marriage on 18th December, 1996. Gopal and Biswajit are friends of the respondent. They were present when Priyanka was taken away from her school and when the marriage took place. 6. Documentary evidence including the birth certificate of the appellant was produced on record before the Trial Court. It clearly indicated that she was born on 6th February, 1980 and was therefore a minor when she was married. 7. After scanning the evidence before it, the Family Court has dismissed the petition on the ground that the appellant and the respondent did not fall within the prohibited degrees of relationship as they were not uncle and niece. It was held that the respondent being the cousin of the appellant's mother could not be considered as her uncle within the dictionary meaning of the term ‘uncle’. Therefore, the Court did not accept the case of the appellant that the marriage was void or in any event voidable. As regards the age of the appellant the Court held that though she was a minor at the time of marriage, there was no provision under the Hindu Marriage Act to declare such a marriage as void or voidable. Therefore, the Court did not accept the case of the appellant that the marriage was void or in any event voidable. As regards the age of the appellant the Court held that though she was a minor at the time of marriage, there was no provision under the Hindu Marriage Act to declare such a marriage as void or voidable. On considering the evidence before it relating to the marriage ceremony itself, the Court found that all the rituals which are required for a valid Hindu marriage had been performed and that there was no fraud or coercion committed by the respondent. The Court however observed that there was an irretrievable break down of the marriage and surprisingly decreed the suit on that ground by granting a decree of divorce. However, the prayer for a declaration that the marriage was null and void was dismissed. 8. The main contention raised on behalf of the appellant before us was that instead of a decree of divorce the appellant was entitled to a declaration that the marriage between her and the respondent was null and void. Mr. Biswajit Basu, the learned Counsel appearing for the appellant, submitted that the consequences of a divorce are different from those on a declaration that the marriage was null and void. Therefore, the appellant was constrained to file the appeal. He further submitted that the Family Court had erred in dismissing the prayer for such a declaration when the marriage between the appellant and the respondent was clearly prohibited under the Hindu Marriage Act. The learned Counsel submitted that the parties were uncle and niece and therefore fell within the prohibited degree of relationship. He submitted that amongst Hindus, even cousins of parents are considered as uncles or aunts and therefore such a relationship would fall within the prohibited degrees. 9. The learned Counsel conceded that under the Hindu Marriage Act, there was no provision to declare a marriage between the parties a nullity on the ground that the girl was minor. He submitted that after the enactment of the Prohibition of the Child Marriage Act, 2006, the marriage ought to have been declared void. The learned Counsel submitted that the appeal is a continuation of the suit. The decision of the Family Court is of 7th January, 1999. He submitted that after the enactment of the Prohibition of the Child Marriage Act, 2006, the marriage ought to have been declared void. The learned Counsel submitted that the appeal is a continuation of the suit. The decision of the Family Court is of 7th January, 1999. The appeal has been pending from the year 2005 and it is during the pendency of the appeal that the aforesaid Act has come into force. Therefore under section 3 of the Act of 2006 the marriage ought to have been declared a nullity as it was voidable marriage. 10. The learned Counsel has placed reliance on the judgment of the Federal Court in the case of Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri reported in AIR 1941 FC 5 in support of the submission that the Appellate Court can not only correct an error in judgment but while determining of the justice requires, the Court is bound to consider any change either in fact or in law, which has supervened since the judgment of the Trial Court. He has also relied on the judgment of the Full Bench of Madras High Court in T. Sivakumar v. Inspector of Police, Thiruvallur Town Police Station reported in AIR 2012 Madras 62 in support of his submission that in view of the aforesaid Act, the marriage between the appellant and the respondent was a nullity. 11. Mr. Amitava Das, the learned Counsel appearing for the respondent, conceded that the appellant's mother was the first cousin of the respondent. He submitted that the opposition to the marriage was an afterthought and in fact the appellant's mother had initiated the talks for the marriage. He also conceded that the appellant and respondent have been living apart after the appellant was rescued on 25th December 1996. 12. Under Section 5 of the Hindu Marriage Act, certain conditions are required to be fulfilled before the marriage between two Hindus which has been solemnized can be considered to be valid. Under Section 5(iii), the bridegroom should be 21 years of age and the bride 18 years of age at the time of marriage. Under Clause (iv) of Section 5, the parties should not be within the degrees of prohibited relationship unless the custom or usage governing each of them permits such a marriage. Under Section 5(iii), the bridegroom should be 21 years of age and the bride 18 years of age at the time of marriage. Under Clause (iv) of Section 5, the parties should not be within the degrees of prohibited relationship unless the custom or usage governing each of them permits such a marriage. Under Clause (v) of Section 5, the parties should not be sapindas of each other unless custom or usage governing each of them permits such a marriage. Sapindarelationship has been defined under Section 3(f)(i) and (ii) of the Hindu Marriage Act as follows: 3(f)(i) “sapinda relationship’ with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation; (ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them; 13. Section 11 of the Hindu Marriage Act provides that any marriage solemnized after the Act shall be declared null and void, if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of the Section 5. 14. In the present case there is no dispute about the relationship between the appellant and the respondent. The appellant's maternal grandfather and the respondent's father were brothers. Thus, the appellant and the respondent had a common ancestor. While the respondent was the third generation of the line of ascent through his father the appellant was the fourth generation in the line of ascent through her mother. This relationship very clearly falls within the sapindarelationship as defined under Section 3(f)(i) and (ii). Therefore, such a marriage is void as it is contrary to the provision of Section 5(v). No evidence has been led by the respondent to establish that there was a custom or usage amongst the parties which permitted such a marriage. Accordingly, the marriage between the appellant and the respondent which was solemnized on 18th December, 1996 is null and void. 15. No evidence has been led by the respondent to establish that there was a custom or usage amongst the parties which permitted such a marriage. Accordingly, the marriage between the appellant and the respondent which was solemnized on 18th December, 1996 is null and void. 15. We need not consider the effect of the Prohibition of Child Marriage Act as we have already found that the parties were sapindas and therefore, could not have married. 16. The appeal is therefore allowed. The decree granting divorce is modified to a decree of nullity as the marriage is null and void. 17. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.