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2018 DIGILAW 237 (MP)

Rajendra @ Amar Singh v. Bittam @ Usha Lodhi

2018-02-27

ANJULI PALO, S.K.GANGELE

body2018
ORDER Gangele, J--1. Appellant has filed this appeal against the order dated 2.12.2006 passed by the District Judge, Panna in C.S. No. 29-A/2006. By the aforesaid order, the trial Court allowed the application filed by the respondent under Order 7 rule 11 and dismissed the suit on the ground that the suit is not maintainable becasue it was filed beyond the period of limitation prescribed under section 12 of the Hindu Marriage Act, 1955. 2. The appellant filed a suit for declaring the marriage solemnized between the appellant and respondent as null and void. He pleaded that the marriage between the appellant and the respondent was solemnized on 19.6.2005 as per the Hindu rituals. The appellant came to know that the respondent was pregnant with someone else before the marriage and he filed the suit for divorce on 1.7.2006. Respondent denied the pleadings that she was pregnant with someone else. An application was filed under Order 7 rule 11 on behalf of the respondent questioning the jurisdiction of the Court to entertain the suit because the suit was filed beyond the period of limitation prescribed under section 12 of the Hindu Marriage Act, 1955. The trial Court allowed the application and dismissed the suit. 3. It is an admitted fact that the marriage between the appellant and respondent was solemnized on 19.6.2005. The appellant filed the suit on 1.7.2006 beyond the period of one year from the date of solemnization of the marriage. 4. Counsel for the appellant has submitted that the suit filed by the appellant was within the period of limitation because it was filed within a period of one year from the date of knowledge of pregnancy of the appellant. 5. Section 12 of the Hindu Marriage Act, 1955 prescribes voidable marriages. section 12(2)(b) prescribes that the petition shall be entertained unless the Court is satisfied. 5. Section 12 of the Hindu Marriage Act, 1955 prescribes voidable marriages. section 12(2)(b) prescribes that the petition shall be entertained unless the Court is satisfied. The relevant section reads as under : (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 solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised 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]. 6. In accordance with section 12(2)(b)(ii), the proceedings must have been instituted within one year from the date of marriage. 7. The question that whether the proceedings can be entertained beyond a period one year when the alleged pregnancy of the respondent was discovered has been considered by the Division Bench of this Court in case of Nandkishore v. Smt. Munni Bai [ 1979 MPLJ 105 ]. The Division Bench has held as under : “Reading of this Sub-section (2) would indicate that a petition for annulment of a marriage shall not be entertained if the conditions laid down in its various Subclauses are not satisfied. It is, therefore, incumbent on a petitioner to plead and for a Court to find that the petitioner has strictly fulfilled the requirements of those sub-clauses. In order to succeed under Clause (d) of section 12(1) of the Act, the petitioner must not only show the existence of pregnancy at the time of marriage, but should also prove that he was ignorant of that fact at the time of marriage, that the proceedings were instituted within a period of one year fixed by the statute and that he did not have marital intercourse with the wife subsequent to the time when he had grounds for reasonably inferring the cause on which he is seeking annulment. In the instant case, the marriage took place on 2.5.1975. The petition was filed on 14.6.1976. The summer vacation that year commenced from 10.5.1975. The Courts did function on 3.5.1975. In the instant case, the marriage took place on 2.5.1975. The petition was filed on 14.6.1976. The summer vacation that year commenced from 10.5.1975. The Courts did function on 3.5.1975. Obviously the petition was presented beyond the period of one year fixed by the statute. Again, it is in the evidence of the appellant and his witnesses that he had practically become certain of the alleged pregnancy of the respondent soon on her arrival to the appellant's house. The respondent has specifically pleaded that after the marriage she had marital intercourse with the appellant and with his full consent. She also deposed so in the witness-box. In spite of this, the appellant did not amend the petition to deny any cohabitation with the respondent. The respondent was put no question in cross-examination to challenge that part of her testimony. It can, therefore, be safely held that marital intercourse had taken place with the appellant's consent since discovery of the alleged pregnancy. That being so, the appellant has utterly failed to prove compliance of conditions incorporated in section 12(2)(b)(ii) and (iii) of the Act. His petition must fail on this count also. 12. 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 presented 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. 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 Causes 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. 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.” 8. The Division Bench has specifically held that the petition has to be filed within one year from the date of marriage. It cannot be filed within one year from the date of knowledge of pregnancy or fraud. Hence, in our opinion, the trial Court has rightly dismissed the suit filed by the appellant. 9. However, the appellant is at liberty to file appropriate proceeding, if he wants to do so under section 13 of the Hindu Marriage Act. 10. With the aforesaid observation, the appeal is dismissed. 11. No order as to cost.