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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