Back
IN THE HIGH COURT OF ORISSA
Arindam Sinha, M.S. Sahoo, JJ.
Monalisa Mohapatra - Appellant
Versus
Jitendra Sahoo - Respondent
MATA No. 174 of 2022
Decided On : 09-02-2024
MARRIAGE - ANNULMENT OF MARRIAGE - Hindu Marriage Act, 1955 - Section 12(2)(a)(i), Section 7 - The court discussed Section 12(2)(a)(i) of the Hindu Marriage Act, which bars annulment petitions presented more than one year after the cessation of force or discovery of fraud. The court interpreted this provision in light of the appellant's claim that she was kidnapped and married without consent, concluding that the absence of a valid marriage ceremony under Section 7 negated the applicability of Section 12(2)(a)(i). The court ultimately determined that no marriage had occurred, thus allowing the annulment.
Fact of the Case:
The appellant-wife sought annulment of her marriage, claiming she was kidnapped and married without consent on August 1, 2018. She was rescued on November 14, 2018, and argued that the marriage was invalid as it lacked her consent and was conducted under duress.
Finding of the Court:
The court found that the appellant's allegations of being forcibly married were credible, and since there was no evidence of a valid marriage ceremony as required by Section 7 of the Hindu Marriage Act, it concluded that no marriage had taken place. The court also noted the absence of any criminal complaint against the respondent by the appellant.
Issues: Whether the marriage between the appellant and the respondent was valid under the Hindu Marriage Act, and whether the appellant's petition for annulment was barred by Section 12(2)(a)(i).
Ratio Decidendi: The court held that the absence of a valid marriage ceremony, as prescribed by Section 7 of the Hindu Marriage Act, meant that the marriage was non-existent. Consequently, the provisions of Section 12(2)(a)(i) did not apply, allowing the annulment of the marriage.
Final Decision: The court set aside the impugned judgment of the Family Court and declared that the parties were never married.
JUDGMENT
Arindam Sinha, J.
Appellant-wife is before us being aggrieved by impugned judgment dated 22nd February, 2022 of the Family Court. Mr. Mishra, learned advocate appears on behalf of her and submits, his client was kidnapped on 1st August, 2018. She was rescued on 14th November, 2018. His client seeks annulment of the marriage because it was without herconsent, taken place during the period, when she was in custody of respondent-husband. He submits, the petition was dismissed on the bar by section 12(2)(a)(i) in Hindu Marriage Act, 1955. The provision is reproduced below.
"12(2)(a)(i) Notwithstanding anything contained in subsection (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub-section
(1), shall be entertained if-
(i) 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; ... ... ... "
2. He submits further, it may well be finding of the family Court that cessation of force was date of the rescue but his client was not aware there had been a marriage. On respondent-husband producing purported affidavit allegedly signed by her declaring the marriage, his client immediately took steps to apply to the family Court for annulment thereof.
3. Respondent-husband goes unrepresented before us. Order sheet bears steps taken for service, including substituted service. We are satisfied on service to proceed against respondent-husband, ex parte.
4. It appears from impugned judgment, case before the family Court was also set ex parte against respondent-husband. His conduct gives indication that he decided to and has moved on.
5. Perused impugned judgment. We reproduce below recital of appellant's case made to said Court recorded in paragraph 2 therein.
"The case of the petitioner in short is that on 01.08.2018 she was studying +3 2nd year and on that day while she was going to Derabish College, the respondent kidnapped her forcibly from the N.H. of Pari Palei and thereafter took her to Sri Sri Banua Mohapurusa Bijesthali at Bengapur, Kuanpal and exchanged garland with help of temple priest and married her forcibly. It is further averred that at the time of marriage no guardian, relatives were present and when her father came to know about the matter he lodged F.I.R. before Balichandrapur P.S. As the police searched for her, the respondent forced her to execute a self declaration affidavit before the Executive Magistrate, Mahanga on 12.11.2018 and she signed the same without valid consent as the same was obtained by force, fraud and influence of the respondent. She further averred that there was no consummation of marriage when she was in the custody of the respondent and police rescued her after some days and she lastly resided with the respondent on14.11.2008. Under the above circumstances she instituted this case for a annulment of marriage by a decree of nullity. " (emphasis supplied)
It appears from appellant's above case before the family Court that her allegation is, there was exchange of garlands with help of temple priest and respondent-husband married her forcibly. In this connection we reproduce paragraph 2 from appellant's petition in the lower Court record, available.
"That, the petitioner is a college going girl. She is reading in Class- (+3 IInd Year). On dt. 01.08.18 when the petitioner was going to Derabish College the O.P. kidnapped her forcibly from the N.H. of Pari-Palei and thereafter taken away near "Sri Sri Banua Mahapurusa Bijestali" At. Bengapur, Kuanpal, District- Cuttack. The O.P. exchanged garland with help of the temple priest and married her forcibly." (emphasis supplied )
6. There is no description of the ceremony of Hindu marriage in the petition. Respondent-husband did not file written statement, so paragraph 2 in the petition is all we have. In the context, section 7 is reproduced below.
"7. Ceremonies for a Hindu marriage.- (1) A Hindu marriage may be solemnized in accordance with the c
AI
A marriage conducted without the consent of one party and lacking the requisite ceremonies as per the Hindu Marriage Act is deemed non-existent, allowing for annulment without the constraints of stat....
The petition for annulment of marriage must be filed within one year from the discovery of force or fraud in obtaining the consent for the marriage.
Marriage of minors solemnized under duress is void; consent obtained by force is invalid under the Hindu Marriage Act.
The main legal point established in the judgment is the requirement for a real consent to the solemnization of marriage and the limited scope of 'fraud' under Hindu Law in the context of annulment of....
Marriage can be declared voidable if consent is obtained through fraud or coercion, especially in cases involving serious allegations and the parties' young age.
The burden of proof lies with the petitioner to establish the nullity of a marriage, and the court must carefully evaluate the evidence presented.
Restitution of conjugal rights – Where marriage itself is not proved, decree for restitution of conjugal rights cannot be sustained.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
