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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[CMA-6177/2016]
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
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
(4 of 9)
[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
(5 of 9)
[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,
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.
(6 of 9)
[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
(7 of 9)
[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
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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[CMA-6177/2016]
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