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Davinder Kaur vs Gagandeep Singh on 7 March, 2019

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

FAO-M-73-2019
Date of Decision: 07.03.2019

Davinder Kaur …….Appellant

Versus

Gagandeep Singh …..Respondent

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN
HON’BLE MR. JUSTICE HARNARESH SINGH GILL

Present: Ms. Rupinder K. Thind, Advocate, for the appellant.

Harnaresh Singh Gill, J.

The appellant-wife is in appeal against the judgment

and decree dated 17.01.2019 passed by the learned District

Judge, Mansa, whereby petition filed by her under Sections 11,

12 and 13 of the Hindu Marriage Act, 1955 (for short `the Act’),

has been dismissed.

The appellant-wife filed the aforesaid petition with

the averments that the marriage between the parties was

solemnized on 2.4.2012 at Kharar, District Mohali. The

respondent-husband had threatened to kill the brother of

appellant-wife in case she did not marry him. She was brought

by the respondent-husband to Chandigarh and forced her to file

CRM-M-10037 of 2012 before this Court and succeeded in

obtaining protection order dated 4.4.2012. The appellant-wife

had signed the papers under such threats. The respondent-

husband, thus, having forced her to live in his company, had

committed rape upon her. The appellant-wife had been taken to

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Budhlada, where she was treated with cruelty. She somehow

managed to come to her parental home and narrated her

parents the entire facts, whereupon a Panchayat was convened

and the appellant-wife was taken to her matrimonial home.

Pursuant thereto on 27.6.2012, a writing in the form of a

customary divorce was made and signed by the parties as also

the witnesses. The respondent-husband had filed a false Civil

Suit No. 18 of 2014 against the appellant-wife. The marriage

between the parties never got consummated. The respondent-

husband had committed the acts of cruelty, fraud, desertion,

coercion, misrepresentation and blackmailing and, therefore, the

appellant-wife was entitled to the decree of divorce.

The respondent-husband contested the divorce

petition by filing his written statement, averring therein that the

marriage had been solemnized with the free will of the appellant-

wife. It was denied if any force was used to solemnize marriage

between the parties. The respondent-husband had filed a civil

suit for restraining the appellant-wife from contracting a second

marriage, which was decreed by the Civil Court. After marriage,

the parties lived together as husband and wife and the marriage

got consummated and there was no act of rape committed by the

respondent-husband upon the appellant-wife. As a matter of

fact, after the marriage, the appellant-wife wanted to meet her

parents and the respondent-husband left her there, where the

appellant-wife had expressed her desire to stay for few days.

However, she did not come back, as her parents refused to send

her. Rather, signatures of the respondent were taken on some

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papers on the pretext that the same were necessary. The

customary divorce was never written nor agreed to, at the behest

of the respondent-husband.

On the pleadings, the learned trial Court framed the

following issues:-

1. Whether the petitioner is entitled to decree of

nullity of the marriage, as prayed for? OPP

2. Whether the present petition is not maintainable?

OPR

3. Relief.

In evidence, the appellant-wife got herself examined

as PW1; her mother, Kuljit Kaur as PW2, Ramesh Singh,

Namberdar as PW3 and PW4-Harjinder Singh. Whereas PW1 to

PW3 had proved their signatures on the customary divorce

Ex.P1, PW4 testified that the respondent-husband stated before

him that the appellant-wife was a lady of bad character.

On the other hand, respondent-husband appeared as

RW1, besides examining RW2-Dharam Pal, who deposed about

the solemnization of the marriage. In the documentary evidence,

the respondent-husband tendered certified copy of the judgment

and decree dated 10.3.2015 as Ex. DA and Ex. DB and

registered notice as Mark-X, photocopy of certificate of

Gurdwara Sahib as Mark-Y and photocopy of the order of this

Court as Mark-Z.

As mentioned above, the learned trial Court, vide

judgment and decree under appeal, has dismissed the divorce

petition.

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Learned counsel appearing for the appellant-wife has

argued that the learned trial Court, while passing the impugned

judgment and decree, did not take into consideration that the

consent of the appellant-wife had been obtained by way of fraud

and misrepresentation and the marriage could not have been

termed to be solemnized out of the free will of the appellant-wife.

Besides, the appellant-wife had led evidence in the form of the

customary divorce (Ex.R1), which was duly proved by the

witnesses examined by the appellant-wife. It is further argued

that the respondent-husband, being the signatory of the said

customary divorce, the learned trial Court, ought to have

granted the decree of divorce. Thus, the impugned judgment and

decree suffers from material illegality and perversity and the

same is liable to be aside.

After hearing the learned counsel for the appellant-

wife and having gone through the impugned judgment and

decree, we do not find any merit in the arguments raised by the

learned counsel for the appellant.

In our considered opinion, the learned trial Court has

rightly found that none of the conditions as laid down in Section

5(i), (iv) and (v) of the Act, stood satisfied. Still further, while

deliberating upon the provisions of Section 12(1)(c) of the Act, it

was found by the learned trial Court, that the consent of the

appellant-wife could not be said to be obtained by fraud,

misrepresentation or force. It was held that as a matter of fact,

besides the admitted factual position between the parties,

various documents were produced and proved on record i.e.

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marriage certificate issued by Gurdwara Guru Nanak Niwas,

village Karor Kalan, Tehsil Kharar, District Mohali and the

protection order dated 4.4.2012 issued by this Court in CRM-M-

10037 of 2012. As regards the customary divorce dated

27.6.2012 (Ex.R1), it was found that the appellant-wife had

failed to prove that there existed any custom between the parties

to annul the marriage. It was further found that the though the

appellant-wife, had failed to prove on record the customary

divorce, yet the said document being on record as Ex.R1, can

very well be read for collateral purposes and that the perusal of

the contents thereof would show that it finds mention that both

the parties had solemnized the marriage out of their free will in

the absence of their parents and that there was no recital

regarding the marriage being the result of force. It was further

found that the judgment and decree of the Civil Judge (Junior

Division), Budhlada dated 10.3.2015 was produced and proved

on record as Ex. DA and Ex. DB, wherein the appellant-wife was

restrained from contracting second marriage.

However, the learned Civil Court did not believe the

version of the appellant-wife and rather observed that the

appellant-wife had failed to prove that the marriage was

dissolved by way of a Panchayati Talakanama. No appeal or

revision thereagainst was preferred by the appellant-wife,

meaning thereby that the said judgment and decree had

attained finality. It was held by the learned trial Court that the

parties had, in fact, performed a runaway marriage and had

there been any substance in the version of the appellant-wife

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that she was forced to marry the respondent-husband, she

ought to have approached the police authorities against the

same as also the alleged threats extended by the husband.

It may be noticed that the marriage between the

parties was solemnized on 2.4.2012. The Panchayati Divorce

was signed by the parties on 27.6.2012. The divorce petition,

however, was filed by the appellant-wife on 27.3.2015. As per

the provisions of Section 12(2)(a) of the Act, no petition for

annulling a marriage on the ground specified in clause (c) of

sub-Section (1) of Section 12, shall be entertained if the petition

is presented more than one year after the fraud had been

discovered. The said provisions read as under:-

“12. Viodable marriages. (1) Any marriage solemnized,
whether before or after the commencement of this Act,
shall be voidable and may be annulled by a decree of
nullity on any of the following grounds, namely,

(a) and (b) xx xx xx

(c)that the consent of the petitioner, or where the
consent of the guardian in marriage of the petitioner
was required under section 5 as it stood immediately
before the commencement of the Child Marriage
Restraint (Amendment) Act, 1978 (2 of 1978), the
consent of such guardian was obtained by force or by
fraud as to the nature of the ceremony or as to any
material fact or circumstance concerning the
respondent; or

(d) xx xx xx

(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 –

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(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) xx xx xx”

From a perusal of the above provisions, it is apparent

that the divorce petition presented by the appellant-wife, filed

27.3.2015 was in contravention of the above said provisions.

Thus, the learned trial Court has rightly held that the appellant-

wife could have filed the divorce petition within one year of the

separation of the parties from 27.6.2012. Apart from that, the

appellant-wife failed to prove the ground of cruelty and the

learned trial Court has, thus, rightly found that the ground of

cruelty was not proved and that the pleas taken by the

appellant-wife were inconsistent as the grounds of cruelty and

marriage being null and void, are inconsistent. Such finding

could not be disputed by the learned counsel appearing for the

appellant-wife, in the present appeal.

No other point has been urged.

In view of the above, we do not find any patent

illegality or material irregularity in the impugned judgment and

decree passed by the learned trial Court, which may warrant for

any interference by this Court in the present appeal. Hence, the

appeal is dismissed.

(RAKESH KUMAR JAIN) (HARNARESH SINGH GILL)
JUDGE JUDGE

07.03.2019
ds
Whether Speaking/ Reasoned: Yes/ No
Whether Reportable: Yes/ No

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