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Rajasthan High Court · body

2019 DIGILAW 2909 (RAJ)

Rinku v. Sukhdev

2019-11-28

SANGEET LODHA, VINIT KUMAR MATHUR

body2019
JUDGMENT 1. This appeal filed by the appellant under Section 19 of the Family Courts Act, 1984, is directed against judgment and decree dated 16.2.19 passed by the Judge, Family Court No.1, Jodhpur, whereby an application preferred by the appellant against the respondent for declaring the marriage solemnized between them as per the social customs as void, has been dismissed. 2. The facts relevant are that the appellant preferred an application seeking annulment of marriage by a decree of nullity on the ground that at the time of solemnization of marriage, she was a child of only 3-4 years of age and the respondent was also minor. The appellant averred in the application that the marriage was solemnized by her grand father under undue influence of prevailing social customs. The appellant submitted that after attaining the age of majority, vide notice dated 23.10.17 sent to the respondent, she repudiated the marriage, which was responded by the respondent by reply dated 10.11.17. The application seeking annulment was filed by the appellant on 4.12.17. During the course of arguments, when the court made a query regarding the age of the appellant, she produced on record her mark sheet of Secondary Examination, wherein her date of birth is disclosed as 20.7.1999. 3. The summon of the application issued by the Family Court was sent to the respondent by registered post, which was received back with the endorsement of refusal by the respondent. Accordingly, the Family Court treating the service complete, proceeded against the respondent ex parte. The statement of the appellant (P.W.1) was recorded and the notice dated 25.11.17 produced on record by the appellant was exhibited in evidence as Ex.1. 4. After due consideration of the evidence on record, the Family Court arrived at the finding that essentially, the annulment of the marriage is sought by the appellant in terms of provisions of Section 3 of the Prohibition of Child Marriage Act, 2006 (for short "the Act of 2006"), which provides that every child marriage whether solemnized before or after the commencement of the Act of 2006 shall be voidable at the option of contracting party, who was child at the time of marriage. As per the provisions of sub- section (3) of Section 3, the petition under the section may be filed at any time but before the child filing the petition completes two years of attaining majority. As per the provisions of sub- section (3) of Section 3, the petition under the section may be filed at any time but before the child filing the petition completes two years of attaining majority. Taking into consideration the admitted fact on record that in the year 2000 when the marriage was solemnized, the appellant was 3-4 years of age, the Family Court concluded that she had attained the age of majority prior to 2015 and thus, at the time when the notice was served upon the respondent, she had already attained the age of 21 years. Accordingly, the application has been rejected as barred by limitation on the ground that the same has not been filed before completion of two years of attaining majority. 5. The appellant has preferred an application under Order XXXXI Rule 27 CPC for taking her mark sheet of Secondary Examination, 2014 (Ex.1) on record, which was not taken into consideration by the Family Court inasmuch as, the same was not exhibited in evidence. 6. Learned counsel appearing for the appellant submitted that the Family Court has seriously erred in arriving at the conclusion that at the time of service of the notice by the appellant upon the respondent, she was 21 years of age. The specific stand of the appellant regarding her age in the notice dated 23.10.17, being mentioned wrongly has been ignored by the Family Court in perfunctory manner. Learned counsel submitted that as a matter of fact, notice dated 23.10.17 was also not exhibited in evidence and thus, when the mark sheet produced was not taken into consideration as the same was not exhibited in evidence, for the parity of reasons, there was no occasion for the Family Court to rely upon the notice dated 23.10.17. Learned counsel submitted that on the facts and circumstances of the case, in the interest of justice, the Family Court should have considered the mark sheet produced on record while extending an opportunity to the appellant to lead further evidence. Learned counsel submitted that while allowing the application preferred by the appellant for taking the mark sheet on record, the matter deserves to be remanded to the Family Court for decision afresh, after giving the parties an opportunity to lead evidence. Learned counsel submitted that while allowing the application preferred by the appellant for taking the mark sheet on record, the matter deserves to be remanded to the Family Court for decision afresh, after giving the parties an opportunity to lead evidence. Learned counsel submitted that the appellant has no objection if order passed by the Family Court proceeding ex parte is also set aside and the respondent is also extended an opportunity to contest the application filed by the appellant after filing a reply thereto. 7. Learned counsel appearing for the respondent submitted that the respondent has also no objection if the judgment and decree under appeal are set aside and the matter is remanded to the Family Court for fresh consideration as prayed for by the appellant. 8. We have considered the rival submissions and perused the material on record. 9. It is true that in the application filed before the Family Court, the appellant has averred that at the time of solemnization of marriage in the year 2000, she was 3-4 years of age. But, admittedly, in the application filed she has not disclosed her actual date of birth. Apparently, in the notice dated 23.10.17, the appellant has disclosed her age as 21 years but the said document was not exhibited in evidence. It is pertinent to note that rejoinder to the reply to the notice sent by the respondent, which has exhibited in evidence as Ex.P/1, the appellant had disclosed her age as 18 years and not 21 years. However, this fact has altogether been ignored by the Family Court. That apart, in the title of the application filed before the Family Court on 4.12.17 also, the appellant has disclosed her age as 18 years. Further, in the statement of the appellant recorded before the Family Court, she has disclosed her age as 20 years. Thus, on the facts and in the circumstances of the case, without examining the evidence on record in its entirety and objectivity, the finding arrived at by the Family Court regarding the age of the appellant being 21 years, is erroneous and consequently, the dismissal of the application as barred by limitation by virtue of provisions of sub-section (3) of Section 3 of the Act of 2006, cannot be sustained. 10. 10. As agreed upon between the parties, the order proceeding ex parte against the respondent deserves to be set aside and the matter deserves to be remanded to the Family Court for consideration afresh after extending an opportunity to the respondent to file a reply to the application and both the parties to lead further evidence in accordance with law. In our considered opinion, the document i.e. mark sheet of Secondary Examination sought to be produced by the appellant, is necessary for the just decision of the case. Accordingly, the application preferred by the appellant for taking document on record also deserves to be allowed. 11. In the result, the appeal is allowed. The judgment and decree dated 16.2.19 passed by the Judge, Family Court No.1, Jodhpur in Civil Case No.802/17, are set aside. The order dated 29.9.18 passed by the Family Court proceeding ex parte against the respondent is also set aside. The application preferred by the appellant for taking document on record is also allowed. The matter is remanded to the Family Court No.1, Jodhpur for decision afresh, after giving an opportunity to the parties as indicated above. The parties shall appear before the Family Court on 3.1.2020. No order as to costs.