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2017 DIGILAW 1280 (MP)

Bhagwati Prasad Shivhare v. Sanyog Jaiswal

2017-12-19

J.K.MAHESHWARI

body2017
ORDER 1. This petition, under Article 227 of the Constitution of India has been filed challenging the order dated 3.10.2017 passed by the Principal Judge, Family Court, Satna allowing the application under Order 1 rule 10 (4) read with Order 6 rule 17 of CPC joining the applicants/petitioners as party to the proceedings being parents of respondent No. 2. 2. Learned counsel for the petitioners contends that the suit was filed for annulment of the marriage under section 12 of the Hindu Marriage Act. The marriage was solemnized in between husband (respondent No. 1) and wife (respondent No. 2). The said annulment may be either on the ground that the marriage has not been consummated owing to impotency and the marriage is in contravention of the conditions specified in clause (ii) of section 5 of the Hindu Marriage Act. The ground raised for annulment is one of the ground specified in clause (ii) of section 5 of the Act but for declaration of the said marriage as voidable, the parents of the girl cannot be said to be either necessary or proper party in a case to complete adjudication and settle all the questions involved. In addition, it is urged that the application has been filed after two years of filing of the suit at a belated stage after commencement of the trial, that too is not permissible without liberty of hearing to the petitioners. 3. On the other hand, learned counsel representing the respondent submits that looking to the pleadings made in para 21 of the plaint filed by the respondent No. 1, the parents by misrepresentation solemnized the marriage, therefore, they are the necessary party of the present case, however, trial Court has rightly allowed the application by the order impugned to which interference by this Court in exercise of the power under Article 227 of the Constitution of India is not warranted. 4. After hearing learned counsel appearing on behalf of both the parties and on perusal of section 12 of the Hindu Marriage Act, it deals the ground for voidable marriage. It indicates that any marriage solemnized before/after the commencement of the Act may be voidable and may be annulled by the decree of the Court on the ground that such marriage has not been consummated owing to the impotency of the respondent. It indicates that any marriage solemnized before/after the commencement of the Act may be voidable and may be annulled by the decree of the Court on the ground that such marriage has not been consummated owing to the impotency of the respondent. In addition, if the marriage was solemnized in contravention of the conditions specified in clause (ii) of section 5 of the said Act, the ground as available in section 12(1)(c) is not a ground as specified but it is required to be seen by the trial Court, therefore, I am not making any observation in this regard. In any case, if this Court visualizes the condition of section 12(1)(b) then it relates back to clause (ii) of section 5 of the Act. The said clause deals the incapability of giving valid consent to the marriage in consequence of unsoundness of mind or it further indicate the giving of valid consent on account of suffering from mental disorder of such kind or to such extent as to be unfit for marriage and the procreation of children and also that one of the parties is suffering from recurrent attack of insanity. 5. In a suit seeking annulment of the marriage, it is in-between the husband and wife because the annulment is sought for therein. The issue of annulment of marriage, if any, raised on very many grounds may not be a cause to say that on account of non-joining of the parents in a suit for annulment of the marriage, the issues cannot be effectively, completely adjudicated upon and to settle all the questions so involved in the case which is a requirement to say that a particular person may be a necessary or proper party in a proceeding. Therefore, considering the aforesaid aspects, in my considered opinion, the trial Court has committed a gross illegality, while allowing the application filed by the respondent no.1 joining the applicants/petitioners as a party to the proceedings. Here, it is relevant to observe that in any case, looking to the pleading of para-21 of the plaint, the applicant/petitioners may be the person whose appearance as witness may be necessary but it would not be justified qua to join them as a party to the proceedings in the case. 6. Here, it is relevant to observe that in any case, looking to the pleading of para-21 of the plaint, the applicant/petitioners may be the person whose appearance as witness may be necessary but it would not be justified qua to join them as a party to the proceedings in the case. 6. In view of the foregoing observations, in my considered opinion, the order passed by the trial Court stands set aside and the trial Court is directed to proceed with the case and decide it as early as possible. 7. With the aforesaid observations, the petition stands allowed and disposed of. Ajeet Kumar Rawat for petitioner; Sanjay K. Agrawal for respondent.