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Madras High Court · body

2021 DIGILAW 1863 (MAD)

G. Umamaheswari v. S. Kumaran

2021-07-07

G.K.ILANTHIRAIYAN

body2021
ORDER : This Civil Revision Petition has been filed to strike down the petition in H.M.O.P.No.847 of 2018, on the file of the learned Principal Family Judge, Coimbatore. 2. The petitioner is the wife and the respondent is the husband. The respondent filed petition in H.M.O.P.No.847 of 2018 for declaration declaring that the marriage solemnized between the petitioner and the respondent on 04.11.2016 as null and void. The wife filed the present Civil Revision Petition to strike down the petition in H.M.O.P.No.847 of 2018. 3. The learned Senior Counsel appearing for the petitioner submitted that the petitioner filed this petition on two grounds to strike down the petition seeking declaration of their marriage as null and void. First one is the petition is barred by limitation and the second one is the Court below has no jurisdiction to entertain the said petition. He further submitted that the petitioner and the respondent fell in love and due to their love affair, they eloped to Bangalore. Immediately the parents of the petitioner lodged complaint as against the respondent herein on 25.09.2016 on the file of the All Women Police Station, Sattur, Viruthunagar. Therefore, they got married on 04.11.2016 at Vinayakar Temple, Sattur. Thereafter, the respondent dropped the petitioner at her parents' house and went to Bangalore for his avocation. 3.1. At that juncture, the respondent filed the impugned petition under Section 12(1)(c) of the Hindu Marriage Act,1955, for declaration declaring that the said marriage dated 04.11.2016 as null and void. When the petition filed under Section 12(1)(c) of the Hindu Marriage Act, it should have been filed within a period of one year from the date of alleged marriage. Even according to the respondent, the marriage was took place on 04.11.2016 and the petition was filed only on 02.06.2018. Therefore, the petition itself clearly barred by limitation and the Court below ought not to have numbered the petition. 3.2. He further submitted that insofar as the jurisdiction is concerned, Section 19 provides for jurisdiction to file petition under the Hindu Marriage Act. According to the respondent, he was compelled to tie Thali to the petitioner herein on 04.11.2016 at Vinayakar Temple, Vembakottai, Sattur, within the jurisdiction of Sattur Police Station, Virudhunagar. Thereafter, the respondent left the petitioner at her parents house and went to Bangalore. At present, the respondent is working as Business Analyst at M/s.TCS, Pune, Maharashtra. According to the respondent, he was compelled to tie Thali to the petitioner herein on 04.11.2016 at Vinayakar Temple, Vembakottai, Sattur, within the jurisdiction of Sattur Police Station, Virudhunagar. Thereafter, the respondent left the petitioner at her parents house and went to Bangalore. At present, the respondent is working as Business Analyst at M/s.TCS, Pune, Maharashtra. Whereas, the present impugned petition has been filed before the Principal Family Court, Coimbatore. According to the respondent he resides in the address mentioned in the petition as such, the Court below has got jurisdiction to try the petition. In accordance with the Section 19(1) of the Hindu Marriage Act, the respondent ought to have filed petition within the local limits of original civil jurisdiction where the marriage was solemnized or where the respondent resides, or where the parties to the marriage last resided together or where the petitioner resides, in a case the respondent is residing outside the territories. Therefore, the Court below has no jurisdiction to try the petition and he prayed to strike down the petition. 4. Per contra, the learned counsel appearing for the respondent would submit that the respondent never fell in love with the petitioner herein. In view of arranging job to the petitioner, the respondent had taken the petitioner to Bangalore. Unfortunately, a false complaint had been foisted as the respondent and the petitioner fell in love and eloped to Bangalore. Immediately, they brought to Police Station, where the parents, relatives, and villagers were gathered and compelled the respondent to marry the petitioner herein. Therefore, the respondent was made to garland the petitioner herein with a Thali on 04.11.2016. In fact, immediately the respondent lodged complaint on 10.12.2016 to the Superintendent of Police, Virudhunagar. Thereafter, the respondent filed petition for declaration declaring that the marriage as null and void before the Sub Court, Sivakasi on 13.11.2017 itself in C.F.R.No.12383 of 2017 and it was returned as not maintainable. Again the respondent filed suit before the Principal Family Court, Coimbatore for declaration to declare the marriage took place on 04.11.2016 as null and void on 11.06.2018 in C.F.R.No.3187 of 2018, which was also returned and thereafter the respondent filed this present petition. Therefore, there is a continuous proceedings from 13.11.2017 and the present petition cannot be stuck down on the ground of limitation. Therefore, there is a continuous proceedings from 13.11.2017 and the present petition cannot be stuck down on the ground of limitation. Since the limitation mixed question of law and fact, it has to be gone into full fledged trial by let in evidence. 4.1. He further submitted that in respect of the jurisdiction is concerned, as per Section 21 of C.P.C., the petitioner herein cannot raise that ground, that too under Article 227 of the Constitution of India. The petition ought to have been raised the said ground before the trial Court at the first instant. He further submitted that the grounds raised by the petitioner cannot be considered to strike down the main petition itself at the first instant, without conducting trial. Therefore, he prayed for dismissal of the present petition. 5. Heard Mr.S.Subbiah, learned Senior Counsel appearing for the petitioner and Mr.K.Goviganesan, learned counsel appearing for the respondent. 6. The petitioner is the wife and the respondent is the husband. Admittedly, the respondent is working as Business Analyst at M/s.TCS, Pune, Maharashtra. On perusal of the petition in H.M.O.P.No.847 of 2018 revealed that the respondent alleged that the petitioner was taken to Bangalore for her job purpose. Unfortunately, the parents of the petitioner foisted false complaint as if the respondent and the petitioner fell in love and eloped. Therefore, they were brought to Sattur Police Station on 04.11.2016 and the respondent was compelled to garland with the petitioner and compelled to tie Thali to the petitioner. Immediately, the respondent dropped the petitioner to her parents' house and he returned to Bangalore for his avocation. Therefore, he filed the present petition for declaration declaring that the marriage took place on 04.11.2016 as null and void. 7. The petition was filed under Section 12(1)(c) of Hindu Marriage Act, 1955. When the petition for declaration, declaring that the marriage itself voidable marriage under Section 12(2)(1)(c) of Hindu Marriage Act, the limitation is only one year from the date of the alleged marriage. 7. The petition was filed under Section 12(1)(c) of Hindu Marriage Act, 1955. When the petition for declaration, declaring that the marriage itself voidable marriage under Section 12(2)(1)(c) of Hindu Marriage Act, the limitation is only one year from the date of the alleged marriage. It is relevant to extract the provisions under Section 12(2) of Hindu Marriage Act as follows :- “12 (2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife-after the force had ceased to operate or, as the case may be, the fraud had been discovered;” 8. Admittedly, the present impugned petition filed on 02.06.2018 i.e., after the period of 1½ years from the date of the alleged marriage which was held on 04.11.2016. Though the learned counsel appearing for the respondent submitted that the respondent already filed same petition on 13.11.2017 itself before the Sub Court, Sivakasi in C.F.R.No.12383 of 2017, the same was returned as not maintainable. Thereafter, the respondent again approached the Court below by way of suit on 11.06.2018 before the Principal Family Court, Coimbatore in C.F.R.No.3187 of 2018 and the same was returned. Thereafter, the respondent filed the present petition under Section 12(1)(c) of the Hindu Marriage Act. Therefore, the respondent claims continuous proceedings and raised objection that limitation would not arise. 9. However, in the impugned petition, there is no whisper about the filing of the above said petitions before the Sub Court, Sivakasi and also before the Principal Family Court, Coimbatore. Even assuming that the respondent filed a petition for dissolution of marriage before the Sub Court, Sivakasi on 13.11.2017, it was filed after the period of one years from the date of the alleged marriage held on 04.11.2016. Therefore, this petition is clearly barred by limitation and it cannot be sustained as against the petitioner herein. 10. Insofar as the jurisdiction is concerned, it is relevant to extract the provision under Section 19 of the Hindu Marriage Act, as follows :- “19. Court to which petition shall be presented. 1. Therefore, this petition is clearly barred by limitation and it cannot be sustained as against the petitioner herein. 10. Insofar as the jurisdiction is concerned, it is relevant to extract the provision under Section 19 of the Hindu Marriage Act, as follows :- “19. Court to which petition shall be presented. 1. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction-- (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.” None of the clause (i) to (iv) of sub Section (1) of Section 19 of the Hindu Marriage Act is covered by any one of the allegations made by the respondent in his petition to have the jurisdiction of the Principal Family Court, Coimbatore. 11. Admittedly, the alleged marriage was took place at Vembakottai, Virudhunagar District. Immediately after the marriage, the petitioner was dropped at her parents house viz., at Vembakottai. Thereafter, the respondent left to Bangalore and now he is working as Business Analyst at M/s. TCS, Pune, Maharashtra. On a perusal of impugned petition, the respondent stated that the happenings took place at Door No.121, Lenin Street, Vilankuruchi Post, Coimbatore – 641 035 within the jurisdiction of the Principal Family Court, Coimbatore District. It is further stated that since the respondent is living in Coimbatore in the said address, the Court below has got jurisdiction to try the petition. Whereas in the same petition, the respondent stated that he is working at Pune. Even assuming that the respondent is residing in the above said address at Coimbatore, the Court below has no jurisdiction to try the petition as per the provisions under Section 19 of the Hindu Marriage Act. 12. Whereas in the same petition, the respondent stated that he is working at Pune. Even assuming that the respondent is residing in the above said address at Coimbatore, the Court below has no jurisdiction to try the petition as per the provisions under Section 19 of the Hindu Marriage Act. 12. The learned counsel appearing for the respondent relied upon the Section 21 of C.P.C., and submitted that the petitioner cannot raise the jurisdiction issue before the appellate Court, since there is a clear bar under Section 21 (1) of C.P.C. However, Section 21 of C.P.C. envisages that no objection as to place of suing shall be allowed by any appellate Court unless the objection was taken in the Court of first instance at the earliest possible opportunity. Whereas, immediately on receipt of the summons, the petitioner has come forward with this petition to strike down the petition. Therefore, the above provision is not at all applicable to the case on hand. 13. In view of the above discussions, the impugned petition is not at all maintainable before the Court below on both grounds i.e., the petition is barred by limitation and the Court below has no jurisdiction to try the petition. Therefore, the impugned petition in H.M.O.P.No.847 of 2018, on the file of the learned Principal Family Judge, Coimbatore, is hereby struck off. 14. Accordingly, this Civil Revision Petition stands allowed. Consequently, connected miscellaneous petition is closed. There shall be no order as to cost.