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Goverdhan S/O Mahadev vs Smt. Vimla Devi W/O Goverdhan D/O … on 19 August, 2019

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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