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2016 Supreme(J&K) 574
IN THE HIGH COURT OF JAMMU AND KASHMIR
B.S. Walia, J.
KULDEEP KUMAR SHARMA - Appellant
Vs.
NIDHI SHARMA - Respondent
CIMA No. 81 of 2014
Decided On : 02-03-2016
For the Appellant : Mr. Rahul Bharli, Adv.
For the Respondent: Mr. S.K. Shukla, Adv.
The main legal point established in the judgment is the interpretation of the grounds for annulment of marriage and the application of the bar of limitation under the relevant sections of the Hindu Marriage Act.
Headnote:
Hindu Marriage Act - Annulment of Marriage - Section 34 - Section 12 - [Section 5, Section 11, Section 12] - The court discussed the provisions of Section 5(ii)(a) and (b) of the Act, which deal with the capability of giving valid consent to marriage in consequence of unsoundness of mind and mental disorder unfit for marriage and procreation of children. The court also referred to Section 11, which deals with void marriages, and Section 12, which deals with voidable marriages. The interpretation of these provisions influenced the court's decision in determining the bar of limitation and the grounds for annulment of marriage.
Fact of the Case:
The appellant filed a petition for annulment of his marriage on the ground that the respondent was of unfit mind and incapable of giving valid consent for marriage. The petition was rejected by the Learned Principal District Judge on the basis of being hit by limitation and not falling under the relevant section of the Act.
Finding of the Court:
The court found that the petition for annulment of marriage was hit by the bar of limitation and did not warrant interference in appeal.
Issues: The issues involved the grounds for annulment of marriage, the bar of limitation, and the interpretation of relevant sections of the Hindu Marriage Act.
Ratio Decidendi: The court held that the petition fell within the ambit of Section 12(1)(c) and consequently Section 12(2)(a)(i) of the Act, leading to the dismissal of the appeal.
Final Decision: The appeal was dismissed as it was bereft of merit and did not warrant interference.
B.S. Walia, J.
The instant appeal has been filed under Section 34 of the Jammu and Kashmir Hindu Marriage Act, 1980 (hereinafter referred to as the Act) against judgement dated January 31, 2014 whereby the appellant's petition under Section 12 of the Act for annulment of his marriage by decree of nullity, as was solemnised with the respondent was rejected by the Learned Principal District Judge, Samba, vide order dated January 31, 2014 on file No. 181/HM Act.
2. Brief facts of the case leading to the instant appeal arc that the petition for annulment of marriage, was filed inter alia on the ground that the respondent ought not to have been married by her parents as she was of unfit mind, i.e., not fit in terms of her mental state to be married and carry a marital life and that knowledge of the same caused distress and depression to the appellant and his parents while at the same time sympathy for the respondent on account of her parents having been unfair to her, besides playing fraud on the petitioner and his parents, of mental disorder/abnormality afflicting the respondent making her unfit for giving valid consent for marriage as also making her unfit for marriage and performance of marital duties and responsibilities lifelong.
3. On the case being put up for filing of objections, the respondent, instead of submitting objections, filed an application under Order 7, Rule 11 of the CPC seeking rejection of the petition on the ground that the petition did not disclose any cause of action, besides was hit by limitation. Objections by the appellant to the said application did not find merit with the Learned Principal District Judge leading to rejection of the appeal in terms of Section 12 (1)(c) of the Act, as also the bar of limitation contemplated u/s 12(2)(a)(i) on account of having been filed on 31.12.2012, i.e., more than one year after discovery of fraud in November, 2009 of a material fact/circumstance concerning the respondent.
4. The impugned order has been challenged on the ground that the Court below dismissed the petition on the assumption of the same having been filed u/s 12(1)(c) therefore being hit by Section 12 (2) (a) (i) whereas the same had been filed u/s 5 (ii) (a) and (b) of the Act. It is pleaded that by no stretch could the petition be said to be one having been filed u/s 12(1)(c) of the Act. It is further the grievance of the appellant that in the application under Order 7, Rule 11 CPC it had nowhere been stated as to how the petition was barred by law of limitation yet the Learned Principal District Judge had assumed it to be hit by Section 12 (2)(a)(i) of the Act.
5. I have heard learned counsel for the parties, perused the record and given my thoughtful consideration to the matter. However, the challenge to the impugned order is without merit, therefore the appeal must fail for the reasons recorded hereunder.
6. The marriage between the parties was solemnised on October 14, 2009. As per the averments in the petition, the appellant and his parents started noticing odd conduct of the respondent within a day of the marriage, and during the total period of stay of the respondent in the appellant's household i.e. less than one month, the appellant and his parents witnessed that the respondent was of unfit mind and should not have been married by her parents on account of her unfit mental state and inability to carry a marital life-paragraph 7 of the petition. In paragraph No. 8 of the petition it has been stated that on October 15, 2009 the appellant and respondent had gone to the respondent's parental home for a ritual visit i.e. Dofera, accompanied by the appellant's Jija and during the said trip the respondent acted very detached from the presence and company of the appellant besides was unmindful of the happenings around her, and further from the very next day onwards, the respondent's state of mental imbalance become noticeable and apparent as her each and every activity and conduct was abnormal i.e
