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Allahabad High Court · body

2018 DIGILAW 932 (ALL)

KAMLESH YADAV v. SURMILA

2018-04-17

PANKAJ MITHAL, RAJIV JOSHI

body2018
JUDGMENT : The appellant-husband has filed this appeal against the judgement and decree dated 15.3.2018 passed by the Family Court in a petition moved by him under section 12 of the Hindu Marriage Act (hereinafter referred to as the Act), for declaring his marriage a nullity as on the relevant date he was a minor. 2. The admitted position is that the plaintiff-appellant was born on 15.1.1990 and his marriage was solemnized on 8.12.2008. On the said date, he was less than 21 years of age i.e 20 years, 6 months. 3. Section 5 of the Act provides for the conditions of a valid marriage and by clause (iii) it clearly states that for solemnization of the marriage of two Hindus, the bridegroom must have completed the age of 21 years and the bride the age of 18 years. 4. The marriage of the plaintiff-appellant may be in violation of the aforesaid condition contained in clause (iii) of section 5 of the Act as he had not completed 21 years of age. 5. Section 11 of the Act provides for void marriages which may be declared as a nullity and lays down that void marriages are those marriages which are solemnized in contravention of clauses (i), (iv) and (v) of section 5 of the Act. 6. Section 12 of the Act provides for voidable marriages and that a marriage performed in contravention of the clause (ii) of section 5 to be declared as void. 7. In view of the aforesaid provisions of section 11 and 12, the marriages performed in violation of the clauses (i), (ii), (iv) & (v) of section 5 alone are void or voidable and can be declared a nullity, but not the marriages solemnized in contravention of clause (iii) of section 5 of the Act. Therefore, a marriage solemnized in contravention of clause (iii) of section 5 of the Act i.e. before the parties attains the marriageable age, is neither void nor voidable and cannot be declared a nullity. 8. In view of the aforesaid facts and circumstances, we are of the definite opinion that the Family Court has not committed any error in dismissing the petition of the plaintiff-husband to declare the aforesaid marriage a nullity only for the reason that he was a minor on the date of the marriage. 9. The appeal has no merit and is accordingly dismissed.