Neeraj Dahiya v. Purshottam

1. Challenge in the presentappeal under Section 19of the Family Courts Act, 1984 is order dated 31.08.2013 passed by the learned Presiding Judge, Family Court, Rohini in HMA No.196/2012, whereby the learned Family Court has allowed the application filed by the respondent under Order 12 rule 6 read with Section 151 of the CPC and passed a judgment and decree under Section 11 ofthe Hindu MarriageAct, declaringthe marriagebetween the appellant and the respondent as null and void.

2. Assailing the aforesaid order, Mr. Neeraj Dahiya, learned counsel for the appellant vehemently contends that the learned Family Court has failed Mat. App. (FC) No.67/2013 Page 1of[6] 2015:DHC:11614-DB to appreciate that the appellant was a minor girl of 14 years ofage and therefore her alleged marriage with a boy - Mukesh was void and non est and based on such avoid marriage, the marriage of the appellant with the respondent could not have been declared as null and void under Section 11 ofthe Hindu Maniage Act. In support ofhis argument, learned counsel for the appellant has placed reliance on the Full Bench decision ofthis Court in WP (Crl) No.338/2008 titled as Courts on its own motion (Lajja Devi) vs. State, decided on July2012.

3. The learned counsel for the appellant has argued that the respondent had failed to adduce any evidence to prove solemnisation offirst marriage of the appellant with Mukesh in terms ofSection 7ofthe Hindu Marriage Act and therefore in the absence ofany proof, the marriage ofthe appellant with respondent, which was solemnised according to Hindu rites and ceremonies could not be declared as null and void. Learned counsel for the appellant also argued that there was no admission made on the part ofthe appellant in reply to the application filed by the respondent under Order 12 Rule 6 read with Section 151 ofthe CPC and therefore also, no decree could have been passed by learned Family Court in the absence ofany admission on the part ofthe appellant with regard to the factum ofher first marriage with Mukesh. Mat.App.(FC)No.67/2013 ^ Page 2 of[6]

4. Mr. Sumit Kumar, Advocate appears on behalfof the respondent and submits that the impugned order is a well reasoned order and there is no illegality or perversity in the order, therefore the same does not call for any interference of this Court.

5. We have heard the submissions made by the learned counsel appearing for the partiesand gonethrough the impugned orderpassed by the learned Family Court. We have also gone through the material placed on record.

6. The Full Bench of this court in Court in its motion (Lajja Devi) (Supra) has examined the issue of the status of marriage under Hindu Law when one of the parties being below the age of 18 years, is married, in contravention of conditions for marriage laid down under Section 5(iii) of the Hindu Marriage Act, 1955 after drawing a comparison with the provision of other Statutes i.e. Prohibition of Child Marriage Act 2006, Hindu Minority and Guardianship Act, 1956 and relevant provisions under the Indian Penal Code.

7. So far as the issue which the Court is concerned in the instant case, the answer given by the Full Bench is that the marriage contracted with a female being less than 18 years of age or with a male being less than 21 Mat. App. (FC) No.67/2013 Page 3of[6] years of age would not be a void marriage but voidable one, which would become valid, ifno steps are taken by such child within the meaning of Section 2(a) and Section 3of the Prohibition of Child Mamage Act, 2006 Act, seeking declaration of this marriage as void. The relevant para of the saidjudgmentis reproduced as under:- "As held above, Prohibition ofChild Marriage Act, 2006 does not render such a marriage as void but only declares it as voidable, though it leads to an anomalous situation where on the one hand child marriage is treated as offmce which is punishable under law and on the other hand, it still treats this marriage as valid, i.e., voidable till it is declared as void. "

8. In the facts ofthe present case also, the case set up by the respondent was that the appellant was already married but she had not taken divorce from her previous husband. In her written statement, the stand taken by the appellant was that the respondent/petitioner was well aware of the fact that she was a divorcee and it is only after showing him the documents and after her having taken the divorce from the previous husband, respondent had agreed to marry her. With regard to her divorce, the appellant referred to some panchayat meeting where the divorce between the appellant and her previous husband had taken place about seven years back by their mutual consent.

9. It is an admitted case between the parties that the appellant had Mat. App. (FC) No.67/2013 solemnized her first marriage with Mukesh and had a child borne out of the said wedlock and she has not pleaded dissolution of her marriage by any decree or divorce under the Hindu Marriage Act. Thus, it is quite manifest that the marriage of the appellant with herprevious husband - Mukesh was in existence atthe time ofher manying with the respondent. It is also a fact on record that the appellant never took any steps to declare her previous -V marriage a non est or void. So far as the alleged mutual divorce which took place before the Panchayat is concerned, as per section 4, Hindu marriage Act, any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. Thus for the matters for which provisions have been laid down under this act, the procedure under this act only has to be followed. Under this Act, section 13 expressly deals ^ with the procedure and grounds for divorce. Since divorce by agreement before panchayat is not a legally recognisable method for seeking divorce under this act, any such agreement arrived at between the parties will hardly be of any consequence.

10. In the light of these facts and circumstances, we do not find any infirmity in the impugned order passed by the learned Family Court. Mat. App. (FC) No.67/2013 Page 5of[6] Therefore the impugned order dated 31.08.2013 passed by learned Family Court is upheld. Finding no merit in the appeal, the same is hereby dismissed.