The court ruled that no limitation applies to claims under Section 25(i) of the Special Marriage Act, and the trial court erred in dismissing the suit based on misinterpretation of prior admissions.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The plaintiff/husband in a suit for declaration of the marriage between the parties to be a nullity under Section 25(i) and (iii) of the Special Marriage Act, 1954 (in short “SM Act”) is the appellant before us.

2. By the impugned judgment and decree, the learned trial Judge allowed an application filed by the defendant/wife challenging the maintainability of the suit.

3. The learned trial Judge proceeded on the premise that insofar as the relief under Section 25(iii) of the SM Act is concerned, the same is palpably barred by limitation since the proceedings were instituted beyond one year after the alleged fraud was discovered.

4. Insofar as the relief under Section 25(i) of the SM Act is concerned, the learned trial Judge was of the opinion that it is evident from the written objection filed by the appellant/husband in a proceeding under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the DV Act”) that the parties have been residing together after the marriage. Moreover, the learned trial Judge also was of the opinion that in a previous suit filed by the husband for restitution of conjugal rights, it was admitted by him that the spouses were leading a conjugal life.

5. Learned counsel appearing for the appellant fairly concedes that insofar as the relief of nullity on the ground of fraud under Section 25(iii) of SM Act is concerned, the same appears to be barred by limitation on the face of the plaint.

6. However, insofar as Section 25(i) of the SM Act, that is non-consummation of the marriage, is concerned, the learned trial Judge overlooked that the husband, in his plaint under Section 9 of the Hindu Marriage Act, 1956 (in short “HM Act”) in the previous suit for restitution of conjugal rights, had categorically averred that the appellant-husband and the respondent-wife have not been living together and there is no physical relationship between them. Moreover, it is contended that in the written objection filed by the appellant-husband in the DV Act proceedings as well, it was categorically pleaded that although the spouses lived under the same roof, there was no relationship between the parties as husband and wife. It was further alleged that when the appellant tried to cohabit with the respondent, she had avoided the same.

7. Thus, it is argued that the very premise of the impugned judgment is bad.

8. It is contended that at best the plaintiff/appellant/husband is required to prove his plaint case at the trial stage but the appellant could not have been shut out at the threshold by the learned trial Judge.

9. Learned counsel appearing for the respondent controverts the arguments of the appellant and places reliance on the printed form under Section 9 of the HM Act, which was filled in by the appellant/husband while filing his previous suit for restitution of conjugal rights. In paragraph no. 1 in the “pleadings” portion thereof, it was categorically averred that the marriage between the parties was solemnized on 16.04.2018 according to Hindu rites and customs and after the marriage both of them had been living/live together as husband and wife.

10. That apart, it is argued that the very fact that the appellant filed a suit for restitution of conjugal rights presupposes that they have been leading a conjugal life, since the expression “restitution” connotes “restoration” of the conjugal life, which obviously would be for consummation, which previously existed between the parties.

11. Thus, in view of such admission of the husband as to the parties having led a conjugal relationship, the learned trial Judge was justified in passing the impugned judgment by construing such fact as an admission on the part of the appellant/husband of consummation having taken place between the parties.

12. Learned counsel appearing for the respondent cites a judgment of a learned Single Judge of the Punjab & Haryana High Court in the case of Captain B. R. Syal Vs. Smt. Ram S