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2017 DIGILAW 1405 (RAJ)

Panbai D/o Lallu Lal Saini v. Bhagwan Sahai S/o Giriraj Saini

2017-06-02

AJAY RASTOGI, RAMCHANDRA SINGH JHALA

body2017
JUDGMENT : Ajay Rastogi, J. 1. The present misc. appeal is directed against the judgment & decree dated 29.08.2016 rejecting application filed by the appellant-wife u/Sec.13(2)(iv) of the Hindu Marriage Act, 1955 and the only clog to her claim was that she has repudiated her marriage after attaining the age of 18 years, hence is entitled for decree of divorce. 2. The claim of the appellant-wife is that she has repudiated the marriage solemnized before attainment of 15 years of age, after attaining that age but before attaining the age of 18 years but these facts have not been taken into consideration, despite specifically pleaded by the appellant before the ld.Family Court, under the judgment & decree dated 29.08.2016 in Case No.55/2016, which is the subject matter of appeal. 3. Indisputed facts which have been recorded by the ld.Family Court are that the appellant was 14 years of age at the time of her marriage solemnized with the respondent on 16.02.2010 according to the Hindu rites & customs. In fact, the appellant along with her elder sister Sunita got married with two real brothers i.e. the marriage of her sister Sunita was solemnized with Rajulal, the elder brother of the respondent, and the present appellant's marriage was solemnized with the respondent-Bhagwan Sahay, who is younger brother of Rajulal. It has been specifically pleaded by the appellant in her application seeking divorce/repudiation of her marriage that she had through-out stayed with her parents and not even once visited to her matrimonial home and their marriage was never consummated and immediately after attaining the age of majority, express notice was sent for repudiation of marriage on 09.09.2015 and thereafter the divorce petition came to be filed on 05.10.2015. 4. After service of notice, written statement was filed by the respondent and he made a bald statement which was completely evasive. Although in the additional facts it was stated that for some time they had been living together, also have physical relations and their marriage was consummated but on the evidence which came on record and considered by the ld. After service of notice, written statement was filed by the respondent and he made a bald statement which was completely evasive. Although in the additional facts it was stated that for some time they had been living together, also have physical relations and their marriage was consummated but on the evidence which came on record and considered by the ld. Family Court four issues were framed & we consider it appropriate to indicate the issues, which read ad infra:- ^^1- D;k izkFkhZ;k dk foi{kh ds lkFk fookg 14 o"kZ dh vk;q esa lEiUu gqvk Fkk vkSj og dHkh Hkh foi{kh ds lkFk ugha jgh\ 2- D;k izkFkhZ;k us bl fookn dks ekuus ls bUdkj dj fn;k gS\ 3- D;k foi{kh ds lkFk mldk fookn Fkk\ 4 vuqrks"kA** 5. The finding was recorded by the ld.Family Court on issue No.1 and it was observed that at the time when the marriage was solemnized, the appellant-wife was 14 years of age and throughout she is residing with her parents and never visited once to her matrimonial home and her marriage was never consummated and the issue No.1 was decided in favour of the appellant-wife. 6. As regards issue No.2 is concerned, it was observed that although the marriage of the appellant was solemnized at the age of 14 years but there is no express repudiation of marriage before she attained the age of 18 years even if all the facts are taken to correct, still in the absence of express repudiation of marriage before attaining the age of 18 years, which is the requirement of Section 13(2)(iv) of the Act, 1955, the issue No.2 was decided against the appellant-wife. 7. As regards issue Nos.3 & 4 are concerned, they may not be relevant for the present purpose. 8. 7. As regards issue Nos.3 & 4 are concerned, they may not be relevant for the present purpose. 8. Counsel for the appellant submits that the ld.Family Court has committed a serious error in recording its finding in reference to the issue No.2 for the reason that once the issue No.1 has been decided in favour of the appellant-wife holding that her marriage was solemnized when she was a child of 14 years and she is residing through-out with her parents and her marriage was never consummated and she has never stayed even for a single day at her matrimonial home, this itself clearly indicates a case of implied repudiation of marriage and that was sufficient to hold that repudiation of marriage has taken place before the age of 18 years and certainly the application could have been filed only after attaining the age of 18 years for repudiation of her marriage solemnized when she was a child below the age of 15 years and as repudiation of marriage was expressed by the appellant through a legal notice which was sent by her lawyer on 09.09.2015, after attaining the age of 18 years, is in conformity with the requirement of Section 13(2)(iv) of the Act, 1955, such a finding recorded by the ld.Family Court in reference to the issue No.2, is wholly perverse and deserves to be set aside and the appellant has made out a case for grant of decree of divorce on repudiation of her marriage in fulfilment of the mandate of law and place reliance on a judgment of this court in Smt. Savitri Devi v. Kailash Jat reported in AIR 2016 Raj. 22 . 9. Counsel further submits that Section 13(2)(iv) of the Act, 1955 has to be considered in the light of the special Act which has been enacted by the Parliament in its wisdom protecting rights of a child under the Prohibition of Child Marriage Act, 2006 (in short PCM Act) where the marriage of a child is an offence and whosoever is involved in the child marriage under the provisions of PCM Act can be punished with imprisonment. 10. 10. Counsel submits that u/Sec.13(2)(iv) of the Act, 1955 the only requirement is that she has to repudiate the marriage before attaining the age of 18 years but it can be implied to be examined on the facts & circumstances of each case or by express repudiation obviously based on the material on record. At the same time, keeping in view the provisions of PCM Act which certainly gives right to a child for submitting application up-to the age of 20 years for repudiation of marriage and being a special Legislation prohibiting child marriage which has been discouraged by the Legislature has to be given its due effect & credence. In the instant case, application has been filed by the appellant before attaining 20 years of age, as per the finding which has come on record, she has fulfilled the mandate of law and repudiated the marriage in fulfilment of the object of Section 13(2)(iv) of the Act, 1955 keeping in view the mandate of the Prohibition of Child Marriage Act, 2006 and deserves indulgence of this court for seeking repudiation of her marriage solemnized when she was a child of 14 years on 16.02.2010. 11. Counsel for the respondent, on the other hand, supported the finding recorded by the ld.Family Court under the judgment & decree dated 29.08.2016 and submits that for the first time the appellant with the express notice dated 09.09.2018 (Exh.8) initiated to repudiate the marriage which was indisputably after she attained the age of 18 years and the present application was filed by her for repudiation of marriage u/Sec.13(2)(iv) of the Act, 1955 at the age of 19 years and this has been recorded by the ld.Family Court in its judgment impugned and in absence of their being any repudiation, as mandated by law, no error has been committed by the ld.Family Court in passing the judgment & decree dated 29.08.2016 which calls for interference of this court. 12. We have heard counsel for the parties and with their assistance perused the material on record. 13. 12. We have heard counsel for the parties and with their assistance perused the material on record. 13. At the outset, it may be noticed that in the petition for divorce while dealing with issue No.1, on the basis of the pleadings recorded, it was established and remained uncontroverted that the appellant is an illiterate lady, belonging to the economically weaker section of society, and her marriage was solemnized on 16.02.2010 when she was 14 years of age and she never visited to her matrimonial home even once & and remained through-out with her parents and this marriage was never consummated. 14. These indisputed facts have been confirmed by the ld.Family Court while deciding issue No.1 in favour of the appellant which itself indicates that it was a deemed repudiation of marriage with the conduct of parties specifically pleaded and stands proved from the material & evidence which came on record and it stands established that there was implied repudiation of marriage and it was confirmed by a legal notice dated 09.09.2015 (Exh.8) sent on her behalf for repudiation of marriage and when it was not responded, application was filed seeking divorce/repudiation of marriage u/Sec.13(2)(iv) of the Act, 1955. 15. No cross objection has been filed by the respondent in assailing the finding recorded by the ld.Family Court in reference to issue No.1 and the finding on issue No.2 is dependent on the finding of issue No.1 which has been completely brushed aside by the ld.Family Court and that being so the factual matrix remains uncontroverted that all the ingredients for repudiation of marriage are fulfilled by the appellant, that her marriage was solemnized when she was a child of 14 years and she never visited for the single day to her matrimonial home and stayed through-out with her parents (natural guardians) and no meeting or interaction has ever taken place between them and their marriage was never consummated. 16. 16. The seriatim of facts establish the finding recorded by the ld.Family Court on issue No.1 under the judgment & decree dated 29.08.2016 and this court finds substance in the submission made by counsel for the appellant that merely because a legal notice was sent on 09.09.2015 expressing repudiation of marriage and filing of the application seeking divorce/repudiation of marriage after attaining the age of 18 years u/Sec.13(2)(iv) of the Act, 1955, in the given facts & circumstances, would not frustrate the case of the appellant and certainly the finding recorded by the ld.Family Court on issue No.2 under the judgment & decree is not sustainable. 17. To protect the child rights and to overcome the menace of child marriage, earlier the Child Marriage Restraint Act, 1929 was enacted with the belief that it may curb and restrain solemnization of child marriages. Although, it was subsequently amended on different occasions but did not fulfil the required results and there was growing demand for making the provisions of the Act more effective followed with punishment to make it stringent keeping in view the primary object that such evil practise of solemnization of child marriages has to be eradicated from the Society and that will enhance the health of child and status of women and keeping such object & reason the Parliament enacted the Prohibition of Child Marriage Act, 2006. The child marriage is indeed a social evil and menace in the society which has the potentialities of danger to the life. Keeping such object into consideration, the child marriages be considered to be voidable at the option of contracting party u/Sec.3 of the Act, 2006 with the right available to the minor child u/Sec.3(3) to file petition at any point of time before the child filing the petition completes two years of attaining majority which comes to 20 years in the case of a female child. At the same time, the child marriage being a crime and whosoever performs, conducts or directs or abets any child marriage is punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees. The object is to curb child marriages and particularly when the children need proper care and attention and education for their better future rather than get married at the tender age. 18. The object is to curb child marriages and particularly when the children need proper care and attention and education for their better future rather than get married at the tender age. 18. This court has examined the provisions of Hindu Marriage Act, 1955 as regards repudiation of marriage contemplated u/Sec.13(2)(iv) viz-a-viz the provisions of Prohibition of Child Marriage Act, 2006, in detailed, in Smt. Savitri Devi v. Kailash Jat reported in AIR 2016 Raj. 22 and left it open to be examined by the Legislature as to what will be fate of such child marriages in view of the provisions of Prohibition of Child Marriage Act, 2006. Be that as it may, being a special Legislation enacted by the Parliament prohibiting child marriages, the PCM Act, 2006 gives right to a child whose marriage has been solemnized for repudiation of marriage u/Sec.3 (3) of the Act may file at any time but before the child complete two years of attaining majority that comes to upto 20 years and indisputably, the application was filed, in the instant case, by the appellant at the age when she was 19 years seeking repudiation of her marriage. Thus, in our considered view, the appellant has been able to substantiate and establish from the material on record that she has taken steps for repudiation of her marriage which was solemnized at the time when she was a child of 14 years on 16.02.2010 within the time prescribed by law. 19. Consequently, the instant misc. appeal succeeds and is hereby allowed. The judgment & decree passed by the ld.Family Court dated 29.08.2016 is quashed and set aside. The appellant-wife is granted decree of divorce on dissolution of her marriage solemnized on 16.02.2010 u/Sec.13 (2) (iv) of the Hindu Marriage Act, 1955 read with Section 3(3) of Prohibition of Child Marriage Act, 2006. No costs.