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2018 DIGILAW 636 (RAJ)

Rajni W/o Naresh Kumar Gurjar v. Naresh Kumar Gurjar S/o Rameshwar Prasad Gurjar

2018-02-23

G.R.MOOLCHANDANI, PRADEEP NANDRAJOG

body2018
JUDGMENT : G.R. Moolchandani, J. 1. By way of these two cross appeals being D.B. Civil Miscellaneous Appeal No. 2173/2017 and D.B. Civil Miscellaneous Appeal No. 2505/2017, appellant/defendant Smt. Rajni has assailed the judgment and decree for dissolution of marriage, whereas respondent/plaintiff Naresh Kumar Gurjar has challenged part of the judgment pertaining to grant of one-time maintenance for Rs. seventy thousand. 2. Brief facts of the petition seeking annulment of marriage depicts pleading that marriage of plaintiff/respondent Naresh Kumar Gurjar was ceremonized on 17.4.2008, when he was a minor child and defendant/appellant Smt. Rajni was also a minor child and date of birth of the plaintiff/respondent was 30.10.1993. Smt. Rajni had stayed with her in law for a single day and no consummation of marriage took place, besides ‘gauna’ ceremony having not been performed, on attainment of majority/puberty, plaintiff/respondent Naresh Kumar Gurjar repudiated the marriage within two years of attainment of majority, while rebutting the pleadings, defendant/appellant Smt. Rajni pleaded that after marriage, customary ceremony of ‘gauna’ was performed on 4.11.2011 and she lived in the consortium of her husband for four days but was ousted by her in-laws on 08.11.2011, post demand of dowry. 3. Heard learned counsels for both the sides, learned counsel for the appellant Smt. Rajni has contended that the court below has faulted in decreeing the suit of the plaintiff/respondent, respondent Naresh Kumar Gurjar was not a minor at the time of the marriage and ceremony of ‘gauna’ was also performed. Smt. Rajni had joined consortium of her defendant husband and stayed with her husband for few days after consummation of marriage, learned trial Court has not appreciated the evidence in right perspective, so the judgment and decree impugned be reversed and order relating to grant of maintenance under the provisions of the Domestic Violence Act, be sustained. Smt. Rajni had joined consortium of her defendant husband and stayed with her husband for few days after consummation of marriage, learned trial Court has not appreciated the evidence in right perspective, so the judgment and decree impugned be reversed and order relating to grant of maintenance under the provisions of the Domestic Violence Act, be sustained. Per contra learned counsel for respondent/defendant Naresh Kumar Gurjar has argued that Naresh Kumar was a minor at the time of his marriage and it has been established by the evidence of both the sides that ceremony of ‘gauna’ was not performed, Naresh Kumar Gurjar had opted and availed option of puberty and had repudiated the marriage on attaining majority and has preferred petition seeking annulment of marriage within two years as per the provision of Sec. 3 (3) of the Prohibition of Child Marriage Act 2006, so the findings of annulment of marriage does not deserve interference and has further contended that maintenance cannot be awarded by two forums separately, since Smt. Rajni is obtaining maintenance under the provisions of the Domestic Violence Act and the court below, while allowing the petition, has wrongly awarded a lump sum maintenance for Rs. seventy thousand, which is liable to be quashed, so appeal filed by the groom Naresh Kumar Gurjar be accepted and appeal preferred by bride Smt. Rajni be dismissed. 4. Perusal of evidence reflects that respondent/defendant bride Smt. Rajni, who has been examined as NAW1, going contrary to her written statement, has stated that her ‘gauna’ was performed on 08.11.2011, she has further averred that she was seventeen years of age at the time of her marriage. She has also stated that after giving beatings, she was ousted on 08.11.2011 by Naresh from his residence and she came all alone from her in-laws home, she has categorically stated that year of her birth is 1993 and pleadings admit that she got married with Naresh on 17.04.2008, as such was minor at the time of her marriage. Smt. Rajni has pleaded in her written statement that her ‘gauna’ was performed on 04.11.2011 but has testified that it was performed on 08.11.2011 and was ousted by her husband on the same day on 08.11.2011. Smt. Rajni has pleaded in her written statement that her ‘gauna’ was performed on 04.11.2011 but has testified that it was performed on 08.11.2011 and was ousted by her husband on the same day on 08.11.2011. She has also stated that she had conveyed her counsel to plead that she had stayed with her in-laws’ family for six days after marriage, but in her testimony she has stated that she lived in her in-laws home for four days, which is contrary to her pleadings. She has narrated contradictory, on the one hand, she has asserted that she joined the consortium of her husband after ‘gauna’, but has stated that after returning to her parental home, she did not go to the house of her in-laws. Smt Rajni has also stated that she is not inclined to join marital consortium of Naresh, her husband. 5. AW1 Naresh Kumar, while ratifying his pleadings has categorically stated in his evidence that his marriage had taken place on 17.04.2008, while he was aging fourteen years and six months and had passed IXth standard, he has further stated that after attaining age of eighteen years, he repudiated his marriage and had verbally conveyed it to the defendant, he has also stated that his date of birth is 30th October 1993 and his marriage was performed on 17th April 2008. 6. Sec. 2 of the Prohibition of Child Marriage Act 2006 postulates :- “2. 6. Sec. 2 of the Prohibition of Child Marriage Act 2006 postulates :- “2. Definitions.—In this Act, unless the context otherwise requires,- (a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age; (b) “child marriage” means a marriage to which either of the contracting parties is a child; (c) “contracting party”, in relation to a marriage, means either of the parties whose marriage is or is about to be thereby solemnised; (d) “Child Marriage Prohibition Officer” includes the Child Marriage Prohibition Officer appointed under subsection (1) of section 16; (e) “district court” means, in any area for which a Family Court established under section 3 of the Family Courts Act, 1984 (66 of 1984) exists, such Family Court, and in any area for which there is no Family Court but a city civil court exists, that court and in any other area, the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act; (f) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority.” and Section 3 of Prohibition of Child Marriage Act 2006, defines :- “3. Child marriages to be voidable at the option of contracting party being a child.—(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage: Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage. (2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer. (3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority. (2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer. (3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority. (4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money: Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.” Sub-section (3) of Sec. 3 lays down that petition for annulment of marriage being voidable at the option of contracting party, may be filed before completion of two years of attaining majority. NAW-2 Padam Singh, father of Smt. Rajni, has asserted that his daughter’s marriage with Naresh Kumar was performed on 17.04.2008 and she was of seventeen years of age at the time of her marriage, contrary to the say of Smt. Rajni, who has stated that her ‘gauna’ was performed on 08.11.2011, he has stated that ‘gauna’ was performed on 04.11.2011, in cross-examination he has also stated that at the time of marriage, age of Naresh was eighteen to nineteen years and he is unaware, that age of the boy should be of twenty-one at the time of marriage, he has also stated that he did not see any document relating to the age of Naresh and his daughter was studying in Xth standard at the time of her marriage. Plaintiff Naresh has testified AW-2 Hanuman son of Ramavtar, who too has given his evidence in sync with Naresh. Plaintiff Naresh has testified AW-2 Hanuman son of Ramavtar, who too has given his evidence in sync with Naresh. Scrutiny of testimony of Smt. Rajni shows that her evidence is full of contradictions and is not creditworthy, whereas, plaintiff/respondent Naresh Kumar Gurjar has successfully established his case and has testified that he was a child at the time of his marriage and had availed option of puberty by repudiating his marriage on attaining majority and his customary ‘gauna’ was also not performed. The Prohibition of Child Marriage Act 2006 postulates that a person whose marriage is performed during his minority, could avail option of puberty and can repudiate and further seek annulment of his marriage, as such Naresh Kumar Gurjar has succeeded in establishing and proving his case. Learned trial Court has considered and dealt with the evidence of rival sides meticulously and there appears no infirmity in the findings of the trial Court. 7. Plaintiff/respondent Naresh Kumar has questioned validity of maintenance for Rs. three thousand per month payable under the provisions of Domestic Violence Act and grant of Rs. seventy thousand towards lump sum maintenance and has objected that payment of maintenance by two forums, is not permissible under the law. 8. We may take note of Sec. 4 of the Prohibition of Child Marriage Act 2006, which lays down that :- “4. Provision for maintenance and residence to female contracting party to child marriage.—(1) While granting a decree under section 3, the district court may also make an interim or final order directing the male contracting party to the child marriage, and in case the male contracting party to such marriage is a minor, his parent or guardian to pay maintenance to the female contracting party to the marriage until her remarriage. (2) The quantum of maintenance payable shall be determined by the district court having regard to the needs of the child, the lifestyle enjoyed by such child during her marriage and the means of income of the paying party. (3) The amount of maintenance may be directed to be paid monthly or in lump sum. (2) The quantum of maintenance payable shall be determined by the district court having regard to the needs of the child, the lifestyle enjoyed by such child during her marriage and the means of income of the paying party. (3) The amount of maintenance may be directed to be paid monthly or in lump sum. (4) In case the party making the petition under section 3 is the female contracting party, the district court may also make a suitable order as to her residence until her remarriage.” Considering aforesaid in built provisions for grant of maintenance to a female contracting child marriage, we do not find any infirmity in the order for grant of lump sum maintenance for Rs. seventy thousand, since the said amount has been awarded under Sec. 4 of the Prohibition of Child Marriage Act 2006, however, it is made clear that in view of the annulment of marriage under the provisions of the Prohibition of Child Marriage Act 2006, respondent/plaintiff Naresh Kumar Gurjar would be at liberty to take appropriate recourse of law against the maintenance amount awarded under the provisions of the Domestic Violence Act. Thus, both the appeals stand disposed of in aforesaid terms, no costs.