Panbai vs Bhagwan Sahai on 2 June, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Misc. Appeal No. 6177 / 2016
Panbai D/o Lallu Lal Saini, by caste Mali, R/o. Dhani Chod, Tehsil
Dausa, Village Bhandaraj, District Dausa (Rajasthan).
—-Appellant
Versus
Bhagwan Sahai S/o Giriraj Saini, by caste Mali, R/o Dhani Galolya,
Village Behrawanda, Distt. Dausa (Rajasthan).
—-Respondent
__

For Appellant(s) : Mr.S.S.Hasan, Advocate.
For Respondent(s) : Mr.Hari Kishan Sharma, Advocate.

Judgment reserved on : 25th May, 2017

Date of Judgment: 2nd June, 2017.

HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE RAMCHANDRA SINGH JHALA
Judgment
BY THE COURT (Per Hon’ble Mr.Justice Ajay Rastogi);

The present misc. appeal is directed against the judgment

decree dt.29.08.2016 rejecting application filed by the appellant-

wife u/Sec.13(2)(iv) of the Hindu Marriage Act, 1955 and the only

clog to her claim was that she has repudiated her marriage after

attaining the age of 18 years, hence is entitled for decree of

divorce.

The claim of the appellant-wife is that she has repudiated the

marriage solemnized before attainment of 15 years of age, after

attaining that age but before attaining the age of 18 years but

these facts have not been taken into consideration, despite

specifically pleaded by the appellant before the ld.Family Court,

under the judgment decree dt.29.08.2016 in Case No.55/2016,
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which is the subject matter of appeal.

Indisputed facts which have been recorded by the ld.Family

Court are that the appellant was 14 years of age at the time of her

marriage solemnized with the respondent on 16.02.2010

according to the Hindu rites customs. In fact, the appellant

along with her elder sister Sunita got married with two real

brothers i.e. the marriage of her sister Sunita was solemnized with

Rajulal, the elder brother of the respondent, and the present

appellant’s marriage was solemnized with the respondent-

Bhagwan Sahay, who is younger brother of Rajulal. It has been

specifically pleaded by the appellant in her application seeking

divorce/repudiation of her marriage that she had through-out

stayed with her parents and not even once visited to her

matrimonial home and their marriage was never consummated

and immediately after attaining the age of majority, express notice

was sent for repudiation of marriage on 09.09.2015 and thereafter

the divorce petition came to be filed on 05.10.2015.

After service of notice, written statement was filed by the

respondent and he made a bald statement which was completely

evasive. Although in the additional facts it was stated that for

some time they had been living together, also have physical

relations and their marriage was consummated but on the

evidence which came on record and considered by the ld.Family

Court four issues were framed we consider it appropriate to

indicate the issues, which read ad infra:-

“1 D;k izkFkhZ;k dk foi{kh ds lkFk fookg 14 o”kZ dh vk;q esa lEiUu
gqvk Fkk vkSj og dHkh Hkh foi{kh ds lkFk ugha jgh
(3 of 9)
[CMA-6177/2016]

2 D;k izkFkhZ;k us bl fookg dks ekuus ls bUdkj dj fn;k gS
3 D;k foi{kh ds jh dh gM~Mh esa vkbZ pksV ykbZykt gS
4 vuqrks”kA”

The finding was recorded by the ld.Family Court on issue

No.1 and it was observed that at the time when the marriage was

solemnized, the appellant-wife was 14 years of age and through-

out she is residing with her parents and never visited once to her

matrimonial home and her marriage was never consummated and

the issue No.1 was decided in favour of the appellant-wife.

As regards issue No.2 is concerned, it was observed that

READ  Moizoddin S/O Azizuddin Qauzi And ... vs The State Of Maharashtra And Anr on 15 March, 2017

although the marriage of the appellant was solemnized at the age

of 14 years but there is no express repudiation of marriage before

she attained the age of 18 years even if all the facts are taken to

correct, still in the absence of express repudiation of marriage

before attaining the age of 18 years, which is the requirement of

Sec.13(2)(iv) of the Act, 1955, the issue No.2 was decided against

the appellant-wife.

As regards issue Nos.3 4 are concerned, they may not be

relevant for the present purpose.

Counsel for the appellant submits that the ld.Family Court

has committed a serious error in recording its finding in reference

to the issue No.2 for the reason that once the issue No.1 has been

decided in favour of the appellant-wife holding that her marriage

was solemnized when she was a child of 14 years and she is

residing through-out with her parents and her marriage was never

consummated and she has never stayed even for a single day at

her matrimonial home, this itself clearly indicates a case of implied
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[CMA-6177/2016]

repudiation of marriage and that was sufficient to hold that

repudiation of marriage has taken place before the age of 18

years and certainly the application could have been filed only after

attaining the age of 18 years for repudiation of her marriage

solemnized when she was a child below the age of 15 years and as

repudiation of marriage was expressed by the appellant through a

legal notice which was sent by her lawyer on 09.09.2015, after

attaining the age of 18 years, is in conformity with the

requirement of Sec.13(2)(iv) of the Act, 1955, such a finding

recorded by the ld.Family Court in reference to the issue No.2, is

wholly perverse and deserves to be set aside and the appellant

has made out a case for grant of decree of divorce on repudiation

of her marriage in fulfillment of the mandate of law and place

reliance on a judgment of this court in Smt.Savitri Devi Vs.

Kailash Jat reported in AIR 2016 Raj. 22.

Counsel further submits that Sec.13(2)(iv) of the Act, 1955

has to be considered in the light of the special Act which has been

enacted by the Parliament in its wisdom protecting rights of a child

under the Prohibition of Child Marriage Act, 2006 (in short PCM

Act) where the marriage of a child is an offence and whosoever is

involved in the child marriage under the provisions of PCM Act can

be punished with imprisonment.

Counsel submits that u/Sec.13(2)(iv) of the Act, 1955 the

only requirement is that she has to repudiate the marriage before

attaining the age of 18 years but it can be implied to be examined

on the facts circumstances of each case or by express

repudiation obviously based on the material on record. At the
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[CMA-6177/2016]

same time, keeping in view the provisions of PCM Act which

certainly gives right to a child for submitting application upto the

age of 20 years for repudiation of marriage and being a special

Legislation prohibiting child marriage which has been discouraged

by the Legislature has to be given its due effect credence. In the

instant case, application has been filed by the appellant before

attaining 20 years of age, as per the finding which has come on

record, she has fulfilled the mandate of law and repudiated the

marriage in fulfillment of the object of Sec.13(2)(iv) of the Act,

READ  Masood Ahamed (In Jail) vs State By Tilak Park P.S on 26 December, 2012

1955 keeping in view the mandate of the Prohibition of Child

Marriage Act, 2006 and deserves indulgence of this court for

seeking repudiation of her marriage solemnized when she was a

child of 14 years on 16.02.2010.

Counsel for the respondent, on the other hand, supported

the finding recorded by the ld.Family Courft under the judgment

decree dt.29.08.2016 and submits that for the first time the

appellant with the express notice dt.09.09.2018 (Exh.8) initiated

to repudiate the marriage which was indisputably after she

attained the age of 18 years and the present application was filed

by her for repudiation of marriage u/Sec.13(2)(iv) of the Act,

1955 at the age of 19 years and this has been recorded by the

ld.Family Court in its judgment impugned and in absence of their

being any repudiation, as mandated by law, no error has been

committed by the ld.Family Court in passing the judgment

decree dt.29.08.2016 which calls for interference of this court.

We have heard counsel for the parties and with their

assistance perused the material on record.

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[CMA-6177/2016]

At the outset, it may be noticed that in the petition for

divorce while dealing with issue No.1, on the basis of the

pleadings recorded, it was established and remained

uncontroverted that the appellant is an illiterate lady, belonging to

the economically weaker section of society, and her marriage was

solemnized on 16.02.2010 when she was 14 years of age and she

never visited to her matrimonial home even once and remained

through-out with her parents and this marriage was never

consummated.

These indisputed facts have been confirmed by the ld.Family

Court while deciding issue No.1 in favour of the appellant which

itself indicates that it was a deemed repudiation of marriage with

the conduct of parties specifically pleaded and stands proved from

the material evidence which came on record and it stands

established that there was implied repudiation of marriage and it

was confirmed by a legal notice dt.09.09.2015 (Exh.8) sent on her

behalf for repudiation of marriage and when it was not responded,

application was filed seeking divorce/repudiation of marriage

u/Sec.13(2)(iv) of the Act, 1955.

No cross objection has been filed by the respondent in

assailing the finding recorded by the ld.Family Court in reference

to issue No.1 and the finding on issue No.2 is dependent on the

finding of issue No.1 which has been completely brushed aside by

the ld.Family Court and that being so the factual matrix remains

uncontroverted that all the ingredients for repudiation of marriage

are fulfilled by the appellant, that her marriage was solemnized

when she was a child of 14 years and she never visited for the
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[CMA-6177/2016]

single day to her matrimonial home and stayed through-out with

her parents (natural guardians) and no meeting or interaction has

ever taken place between them and their marriage was never

consummated.

The seriatim of facts establish the finding recorded by the

ld.Family Court on issue No.1 under the judgment decree

dt.29.08.2016 and this court finds substance in the submission

made by counsel for the appellant that merely because a legal

notice was sent on 09.09.2015 expressing repudiation of marriage

and filing of the application seeking divorce/repudiation of

marriage after attaining the age of 18 years u/Sec.13(2)(iv) of the

Act, 1955, in the given facts circumstances, would not frustrate

the case of the appellant and certainly the finding recorded by the

READ  Nisar And Another vs State Of U.P on 9 November, 1994

ld.Family Court on issue No.2 under the judgment decree is not

sustainable.

To protect the child rights and to overcome the menace of

child marriage, earlier the Child Marriage Restraint Act, 1929 was

enacted with the belief that it may curb and restrain solemnization

of child marriages. Although, it was subsequently amended on

different occasions but did not fulfill the required results and there

was growing demand for making the provisions of the Act more

effective followed with punishment to make it stringent keeping in

view the primary object that such evil practice of solemnization of

child marriages has to be eradicated from the Society and that will

enhance the health of child and status of women and keeping such

object reason the Parliament enacted the Prohibition of Child

Marriage Act, 2006. The child marriage is indeed a social evil and
(8 of 9)
[CMA-6177/2016]

menace in the society which has the potentialities of danger to the

life. Keeping such object into consideration, the child marriages be

considered to be voidable at the option of contracting party

u/Sec.3 of the Act, 2006 with the right available to the minor child

u/Sec.3(3) to file petition at any point of time before the child

filing the petition completes two years of attaining majority which

comes to 20 years in the case of a female child. At the same time,

the child marriage being a crime and whosoever performs,

conducts or directs or abets any child marriage is punishable with

rigorous imprisonment which may extend to two years and shall

be liable to fine which may extend to one lakh rupees. The object

is to curb child marriages and particularly when the children need

proper care and attention and education for their better future

rather than get married at the tender age.

This court has examined the provisions of Hindu Marriage

Act, 1955 as regards repudiation of marriage contemplated

u/Sec.13(2)(iv) viz-a-viz the provisions of Prohibition of Child

Marriage Act, 2006, in detailed, in Smt.Savitri Devi Vs. Kailash

Jat reported in AIR 2016 Raj. 22 and left it open to be examined

by the Legislature as to what will be fate of such child marriages

in view of the provisions of Prohibition of Child Marriage Act, 2006.

Be that as it may, being a special Legislation enacted by the

Parliament prohibiting child marriages, the PCM Act, 2006 gives

right to a child whose marriage has been solemnized for

repudiation of marriage u/Sec.3(3) of the Act may file at any time

but before the child complete two years of attaining majority that

comes to upto 20 years and indisputably, the application was filed,
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in the instant case, by the appellant at the age when she was 19

years seeking repudiation of her marriage. Thus, in our considered

view, the appellant has been able to substantiate and establish

from the material on record that she has taken steps for

repudiation of her marriage which was solemnized at the time

when she was a child of 14 years on 16.02.2010 within the time

prescribed by law.

Consequently, the instant misc. appeal succeeds and is

hereby allowed. The judgment decree passed by the ld.Family

Court dt.29.08.2016 is quashed and set aside. The appellant-wife

is granted decree of divorce on dissolution of her marriage

solemnized on 16.02.2010 u/Sec.13(2)(iv) of the Hindu Marriage

Act, 1955 read with Sec.3(3) of Prohibition of Child Marriage Act,

2006.

No costs.

(RAMCHANDRA SINGH JHALA)J. (AJAY RASTOGI)J.

Solanki DS, PS

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