Roshanpura, Gurgaon, District Gurgaon. Vs. Amit Kumar Son of Shri Mahabir Singh Resident of H.No.Ep-130 - Court Judgment

SooperKanoon Citationsooperkanoon.com/1065312
CourtPunjab and Haryana High Court
Decided OnApr-14-2013
AppellantRoshanpura, Gurgaon, District Gurgaon.
RespondentAmit Kumar Son of Shri Mahabir Singh Resident of H.No.Ep-130
Excerpt:
fao no.415 o”1. in the high court of punjab & haryana at chandigarh f.a.o. no.415 of 2012 date of decision: march 14, 2013 binny matta daughter of shri tilak raj, resident of house no.580/3, roshanpura, gurgaon, district gurgaon. ............appellant versus amit kumar son of shri mahabir singh resident of h.not ep-130, jaccumura,gurgaon, district gurgaon. ..............respondent coram: hon'ble mr. justice surya kant hon'ble mr. justice r.p.nagrath present: none for the appellant. respondent amit kumr in person with shri sarfraj hussaiin,advocate for the respondent.1. whether reporters of local papers may be allowed to see the judgment ?.2. to be referred to the reporter or no.?.3. whether the judgment should be reported in the digest ?. r.p. nagrath,j.the appellant was 16 years and 3 months old when the marriage between the parties was statedly solemnized in arya samaj temple, jamuna bazar, delhi on 4.12.2007. her date of birth is 2.9.1991. ex.p1 is fao no.415 o”2. the certificate issued by cbse for passing secondary school examination in proof of date of birth and ex.p-2, the copy of birth certificate issued by sub registrar, births and deaths, gurgaon.2. the contention of the respondent was that they eloped on 28.11.2007 and the marriage was performed with the free consent of appellant. the version of appellant on the other hand is that she was enticed away by the respondent from her parent's house. she filed petition on 11.6.2009 under section 12 of hindu marriage act for declaring the marriage a nullity through her father as natural guardian. father of the appellant also registered fir for offences under sections 376,366,363 and 120-b of the indian penal code on 2.12.2007. it is stated that her consent was obtained by exerting threats. the appellant was recovered from respondent by the police on 21.12.2007 the respondent was tried of the charges for offences under sections 363, 366 and 376 of the ipc but acquitted vide judgment dated 02.06.2009 of learned sessions judge, gurgaon.3. the respondent filed written statement. the lower court framed issues on the pleadings of the parties. the evidence was adduced by appellant before the lower court which comprises of herself as pw1 and her father as pw2. the respondent did not produce any evidence despite sufficient opportunities which stood closed by order.4. the learned district judge, family court, gurgon dismissed the petition primarily on the ground that it was presented after one year of discovery of fraud. it was observed that the girl was recovered on 21.12.2007 but petition was presented much after the expiry of one year period. learned lower court further held that delay cannot be condoned fao no.415 o”3. under the provisions of section 12 of the hindu marriage act.5. the appellant has preferred this appeal to challenge the aforesaid judgment and decree of the learned lower court. the lower court record was requisitioned which has been perused.6. section 12(1)(c) of the hma act enables the marriage solemnised to be voidable and can be annulled by a decree of nullity on the ground that the consent of the petitioner was obtained by force. the appellant testified about the threat and force while appearing in the witness box. the documents which were put to her would show that the date of birth of respondent was mentioned therein but as regards the appellant she was only described as 18 years old. ex.dc is her affidavit prepared in december, 2007 wherein her date of birth is stated as 2.9.1988. this affidavit is attested by an oath commissioner. the above statement in the affidavit is therefore absolutely incorrect. this fact further fortifies her testimony that her consent was obtained by force and under threats and there was no evidence to the contrary lead by respondent. even at the hearing of instant appeal, the respondent made a statement that without admitting the allegations of fraud, he does not want to contest this appeal which may be allowed.7. sub section (2) of section 12 of the hindu marriage act says that 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- 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.8. the petitioner attained majority after three months of the fao no.415 o”4. institution of the petition under section 12 of hindu marriage act which was filed through her father as natural guardian. so the period of limitation in her case would commence from the date of her attaining majority. she chose to continue with this petition as her statement was recorded on 18.1.2011 by the trial court after she attained majority. the view formed by the trial court is, thus, contrary to law.9. in view of the above discussion and the statement made by the respondent at the hearing of the appeal, the appeal deserves to be allowed.10. therefore, the appeal is allowed setting aside the judgment dated 22.4.2011 passed by the district judge, family court, gurgaon. consequently the petition filed by the appellant-wife is allowed and the marriage between the parties is annulled by passing a decree of nullity under section 12 of the hindu marriage act.11. let a duly certified copy of this order be sent to the appellant at her given address. ( r.p. nagrath ) judge march 14,2013 ( surya kant ) sks judge
Judgment:

FAO No.415 o”

1. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH F.A.O. No.415 of 2012 Date of decision: March 14, 2013 Binny Matta daughter of Shri Tilak Raj, resident of House No.580/3, Roshanpura, Gurgaon, District Gurgaon. ............Appellant Versus Amit Kumar son of Shri Mahabir Singh resident of H.not EP-130, Jaccumura,Gurgaon, District Gurgaon. ..............Respondent CORAM: HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR. JUSTICE R.P.NAGRATH Present: None for the appellant. Respondent Amit Kumr in person with Shri Sarfraj Hussaiin,Advocate for the respondent.

1. Whether Reporters of local papers may be allowed to see the judgment ?.

2. To be referred to the reporter or No.?.

3. Whether the Judgment should be reported in the Digest ?. R.P. Nagrath,J.The appellant was 16 years and 3 months old when the marriage between the parties was statedly solemnized in Arya Samaj temple, Jamuna Bazar, Delhi on 4.12.2007. Her date of birth is 2.9.1991. Ex.P1 is FAO No.415 o”

2. the certificate issued by CBSE for passing Secondary School Examination in proof of date of birth and Ex.P-2, the copy of birth certificate issued by Sub Registrar, Births and Deaths, Gurgaon.

2. The contention of the respondent was that they eloped on 28.11.2007 and the marriage was performed with the free consent of appellant. The version of appellant on the other hand is that she was enticed away by the respondent from her parent's house. She filed petition on 11.6.2009 under Section 12 of Hindu Marriage Act for declaring the marriage a nullity through her father as natural guardian. Father of the appellant also registered FIR for offences under Sections 376,366,363 and 120-B of the Indian Penal Code on 2.12.2007. It is stated that her consent was obtained by exerting threats. The appellant was recovered from respondent by the police on 21.12.2007 The respondent was tried of the charges for offences under Sections 363, 366 and 376 of the IPC but acquitted vide judgment dated 02.06.2009 of learned Sessions Judge, Gurgaon.

3. The respondent filed written statement. The lower Court framed issues on the pleadings of the parties. The evidence was adduced by appellant before the lower Court which comprises of herself as PW1 and her father as PW2. The respondent did not produce any evidence despite sufficient opportunities which stood closed by order.

4. The learned District Judge, Family Court, Gurgon dismissed the petition primarily on the ground that it was presented after one year of discovery of fraud. It was observed that the girl was recovered on 21.12.2007 but petition was presented much after the expiry of one year period. Learned lower Court further held that delay cannot be condoned FAO No.415 o”

3. under the provisions of Section 12 of the Hindu Marriage Act.

5. The appellant has preferred this appeal to challenge the aforesaid judgment and decree of the learned lower Court. The lower Court record was requisitioned which has been perused.

6. Section 12(1)(c) of the HMA Act enables the marriage solemnised to be voidable and can be annulled by a decree of nullity on the ground that the consent of the petitioner was obtained by force. The appellant testified about the threat and force while appearing in the witness box. The documents which were put to her would show that the date of birth of respondent was mentioned therein but as regards the appellant she was only described as 18 years old. Ex.DC is her affidavit prepared in December, 2007 wherein her date of birth is stated as 2.9.1988. This affidavit is attested by an Oath Commissioner. The above statement in the affidavit is therefore absolutely incorrect. This fact further fortifies her testimony that her consent was obtained by force and under threats and there was no evidence to the contrary lead by respondent. Even at the hearing of instant appeal, the respondent made a statement that without admitting the allegations of fraud, he does not want to contest this appeal which may be allowed.

7. Sub Section (2) of Section 12 of the Hindu Marriage Act says that 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- 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.

8. The petitioner attained majority after three months of the FAO No.415 o”

4. institution of the petition under Section 12 of Hindu Marriage Act which was filed through her father as natural guardian. So the period of limitation in her case would commence from the date of her attaining majority. She chose to continue with this petition as her statement was recorded on 18.1.2011 by the trial Court after she attained majority. The view formed by the trial Court is, thus, contrary to law.

9. In view of the above discussion and the statement made by the respondent at the hearing of the appeal, the appeal deserves to be allowed.

10. Therefore, the appeal is allowed setting aside the judgment dated 22.4.2011 passed by the District Judge, Family Court, Gurgaon. Consequently the petition filed by the appellant-wife is allowed and the marriage between the parties is annulled by passing a decree of nullity under Section 12 of the Hindu Marriage Act.

11. Let a duly certified copy of this order be sent to the appellant at her given address. ( R.P. NAGRATH ) JUDGE March 14,2013 ( SURYA KANT ) sks JUDGE