HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No.745/2019
Goverdhan S/o Mahadev, Aged 52 Years, B/c Bagra Brahmin R/o
Gram Badarna Post Harmada District Jaipur.
—-Appellant
Versus
Smt. Vimla Devi W/o Goverdhan D/o Chittar (Metally Retired),
Aged 46 Years, Through Natural Guardian Father Chittar Mal B/c
Bagra Brahmin R/o Bhambhori District Jaipur.
—-Respondent
For Appellant(s) : Shri V.V. Harit
HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
19/08/2019
BY THE COURT : (PER HON’BLE DHADDHA, J.)
1 This appeal has been preferred by the appellant
husband against the order of the learned Family Court No.2, Jaipur
passed on 4.1.2019 whereby the learned Family Court rejected
the matrimonial civil Suit No.4/2019, being immaterial and
baseless at the admission stage, filed under O.7 R.1 CPC read with
Sectionsection 7 of the Hindu Marriage Act, 1955 (for short “the Act”).
2. Brief facts giving rise to this appeal are that the
marriage between the parties was solemnized on 22.5.1991 at
village Bhambhori, District Jaipur. On second day of the marriage,
the appellant came to know that the respondent wife was suffering
from the disease of anaemic and schizophrenia and her physical
ability was not like a normal lady. On an enquiry, her reply was
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that the condition of her was from childhood. The appellant filed a
divorce petition u/s 13 of the Act which was allowed by the
learned Family Court and the marriage solemnized between them
was dissolved by passing the decree of divorce against the
respondent wife. After that, a civil suit under O.7 R.1 CPC read
with Sectionsection 7 of the Act was filed which was also rejected vide
order dated 4.1.2019.
3. The respondent in her reply stated that the marriage
was taken place after looking her by the appellant and his family
members after fulfillment of dowry and cash. She was not a
patient of anaemic and schizophrenia at the time of marriage. She
stated that in childhood when she was fell ill, doctor vaccinated
which resulted in sag. She is capable to do the domestic work.
4. In the suit, after written statement of respondent, the
learned Family Court framed Issue No.1 as under :
“1- vk;k vizkfFkZ;k ,usfed rFAk lhtksQzsfu;k ds jksx ls cpiu ls
gh fookg ls iwoZ ls fifMzr jgh gS vkSj fookg ds ckn Hah mDr jksx
ls xzflr gS rFAk ;g jksx vlk/; jksx gks x;k gS ?”
5. Learned counsel for the appellant submitted that the
impugned order dated 4.1.2019 is illegal, arbitrary and against
the material available on record. Learned counsel for the appellant
submitted that the appellant had filed a petition u/s 13 of the Act
on 23.1.1996 before the learned Family Court. In this petition, the
appellant stated that the respondent wife was not a normal lady.
In fact, she was suffering from a disease of anaemic and
schizophrenia. Learned counsel submitted that the respondent
wife was incapable to lead the matrimonial life. Learned counsel
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submitted that the petition was allowed on 24.11.2001 and
decree of divorce was passed against the respondent wife.
6. Learned counsel for the appellant submitted that the
learned Family Court decided the Issue No.1 in favour of the
appellant taking into consideration of the Medical Report. Dr.
Pradeep Sharma (PW-3) in his statement clearly stated that the
respondent was mentally retarded and her disease was not
curable. Her mental age was 5 to 7. Dr. Pradeep Sharma deposed
that the respondent was not suffering from schizophrenia. On the
contrary, she was mentally retarded and her disease was
incurable. Learned counsel for the appellant submitted that the
respondent wife was mentally retarded at the time of marriage.
So, she could not give valid consent for marriage. Therefore, the
marriage between appellant and respondent was ab initio void.
The learned counsel for the appellant submitted that the learned
Family Court should have dismissed the suit on account of
mentally retarded of respondent. He submitted that the learned
Family Court had committed an error in passing the decree of
divorce. Learned counsel submitted that to declare the decree of
divorce void, the appellant had filed suit for declaration and
permanent injunction before the learned Family Court. But, the
learned Family Court had erred in dismissing the application at
the admission stage. Learned counsel submitted that the
learned Family Court should have issued summon to the
respondent and after taking written statement on record, Issues
be framed and after taking the evidence decided the civil suit on
merits. There is no provision in Civil Procedure Code to decide suit
at the admission stage.
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7. In support of his arguments, the learned counsel for
the appellant placed reliance in Balram Yadav v/s Fulmaniya
Yadav, 2016(2) WLC (SC) Civil 10.
8. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the appellant,
perused the impugned order and the material available on record.
9. The appellant had filed a suit against the respondent
before the learned Family Court on 23.1.1996 which was decided
in favour of he appellant. In this suit, the appellant clearly stated
that the respondent was suffering from schizophrenia. For that,
the learned Family Court framed Issue No.1 as per the pleadings
of the parties. The appellant filed a suit for declaration as void
after 18 years. The order dated 24.11.2001 had attained the
finality. The appellant wanted to get that order declared as null
and void which was hopelessly time barred and was not
permissible. We are of considered view that the learned Family
Court has not committed any mistake or error by rejecting the
plaint of the appellant at the admission stage. The appeal being
devoid of merit, is liable to be dismissed and is accordingly
dismissed.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J
RAJ KUMAR CHAUHAN /17/M36
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