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2019 DIGILAW 812 (RAJ)

Chunnilal Ji v. Ramlalji

2019-03-11

DINESH MEHTA, SANGEET LODHA

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JUDGMENT 1. This appeal is directed against order dated 26.5.17 passed by the Family Court, Pali, whereby the application preferred by the appellant under Order VII Rule 11 CPC, seeking rejection of the application preferred by the respondent under Section 11 of Hindu Marriage Act, 1955, has been rejected. 2. The appeal is reported to be barred by limitation for 299 days. The appellant has filed an application for condonation of delay praying that time during which the appellant was prosecuting with due diligence, the revision petition preferred before this court against the order impugned may be excluded in computing the limitation and the delay in filing the appeal may be condoned. 3. Learned counsel appearing for the respondent has opposed the application stating that while dismissing the revision petition, no liberty is granted to the appellant by the learned Single Judge to avail the appropriate remedy against the order impugned and therefore, the application which does not disclose any sufficient cause for condonation of inordinate delay in filing the appeal, deserves to be rejected. 4. Indisputably, the revision petition preferred has been dismissed by the learned Single Judge as not maintainable without consideration on merits. Thus, on the facts and in the circumstances of the case, since the appellant was prosecuting the revision petition filed bonafide, the application preferred deserves to be allowed. Ordered accordingly. 5. Heard the learned counsels for the parties on appeal. 6. Learned counsel appearing for the appellant contended that the Judge, Family Court has seriously erred in rejecting the application preferred by the appellant under Order VII Rule 11 observing that the question regarding the maintainability of the application preferred by the respondent under Section 11 of the Hindu Marriage Act, 1955 (for short "the Act"), on the ground that the same was not filed within three years from attaining the age of majority, remains a mixed question of law and facts, which needs to be decided on the basis of the evidence to be led by the parties. Learned counsel submitted that as a matter of fact, the application filed before the Family Court, does not disclose any ground on the basis of which the marriage can be declared void under Section 11 of the Act and therefore, the application preferred by the respondent was liable to be rejected on this count alone. 7. Learned counsel submitted that as a matter of fact, the application filed before the Family Court, does not disclose any ground on the basis of which the marriage can be declared void under Section 11 of the Act and therefore, the application preferred by the respondent was liable to be rejected on this count alone. 7. On the other hand, learned counsel appearing for the respondent submitted that though the application filed before the Family Court by the respondent is captioned as an application under Section 11 of the Act but essentially, the application is filed by her seeking declaration of marriage as void, on the ground that at the time of solemnization of marriage, the appellant was only 2 years of age and thus, the marriage being in violation of the provisions of Section 5(iii) of the Act, is liable to be declared void. Learned counsel submitted that the maintainability of the application was questioned by the appellant only on the ground of limitation, which has rightly been rejected by the Family Court for the reasons recorded. 8. We have considered the rival submissions and perused the material on record. 9. A bare perusal of the application preferred by the appellant before the Family Court reveals that the maintainability of the application preferred was questioned by him only on the ground that since the application has not been filed by the respondent within a period of three years from the date of attaining the age of majority and thus, the same deserves to be dismissed as barred by limitation. 10. Admittedly, the respondent in the application filed before the Family Court had specifically averred that her marriage was solemnized when she was two years of age and she has come to know about the factum of marriage only on 15.12.15. Thus, taking into consideration the averments made in the application, this court is of the considered opinion that the order impugned passed by the Family Court, rejecting the application on the ground that question of limitation remains a mixed question of law and facts, which could be decided only on the basis of the evidence to be led by the parties cannot be faulted with. 11. 11. The ground sought to be raised by the appellant before this court that the application does not disclose any cause of action inasmuch as, the averments made in the petition does not disclose any ground whatsoever for declaration of marriage as void under Section 11 of the Act, was not raised by the appellant before the Family Court in the application filed under Order VII Rule 11 CPC or during the course of arguments and therefore, this court is not inclined to entertain the contention raised before this court for the first time. 12. If the application preferred by the respondent does not disclose any cause of action or it is otherwise barred by law, it is always open for the appellant to make an appropriate application in this regard before the Family Court. 13. For the aforementioned reasons, the appeal fails, it is hereby dismissed. No order as to costs.