2019 Supreme(All) 1628
IN THE HIGH COURT OF ALLAHABAD
SUDHIR AGARWAL, RAJEEV MISRA, JJ.
Prachi - Appellant
Versus
Shailendra Kumar - Respondent
First Appeal No. 40 of 2011, 107 of 2016, 157 of 2016
Decided On : 13-09-2019
Rakesh Pandey, Adv., Vishnu Pratap Pandey, Adv., Ghanshyam Dwivedi, Adv., M.S. Pipersania, Adv., G.S. Dwivedi, Adv., Rakesh Pande, Adv., Tej Prakash Mishra, Adv., Tej Prakash, Adv.
Headnote:
Hindu Marriage Act 1955 – Section 11, 12 (1) and 24 – Contract Act, 1872 – Section 2 (I), 2 (j) and 17 – Appellant challenging Judgement and Decree passed by Principal Judge, Family Court whereby marriage between parties been declared nullity – Marriage of appellant was solemnized with plaintiff accordance with Hindu Rites and Customs. According to plaintiff, marriage between parties never consummated, and no issue was born out of aforesaid wedlock. After expiry of a period of one year and few days, plaintiff filed Marriage Petition for decree declaring marriage of parties as nullity – Whether appellant is entitled to any maintenance under section 24 of Act 1955 and denial of same to appellant by Court below is justified or not – Held, Court below had refused to award interim maintenance to appellant solely on ground that she has already been awarded maintenance at rate of Rs. 2,000/- per month in maintenance case –Consequently, there is no necessity to award further maintenance to appellant – Appeal dismissed. (Paras: 35 to 37)
Facts of the case:
Appellant challenging Judgement and Decree passed by Principal Judge, Family Court whereby marriage between parties been declared nullity – Marriage of appellant was solemnized with plaintiff accordance with Hindu Rites and Customs. According to plaintiff, marriage between parties never consummated, and no issue was born out of aforesaid wedlock. After expiry of a period of one year and few days, plaintiff filed Marriage Petition for decree declaring marriage of parties as nullity – Whether appellant is entitled to any maintenance under section 24 of Act 1955 and denial of same to appellant by Court below is justified or not.
Findings of the court:
Court below had refused to award interim maintenance to appellant solely on ground that she has already been awarded maintenance at rate of Rs. 2,000/- per month in maintenance case – Consequently, there is no necessity to award further maintenance to appellant.
Result: Appeal dismissed
JUDGMENT :
Rajeev Misra, J.
First appeal No. 40 of 2011 (Prachi Vs. Shailendra Kumar) has been filed by appellant Prachi, challenging Judgement dated 4.12.2010 and Decree dated 22.12.2010, passed by Principal Judge, Family Court, Allahabad in Matrimonial Case No. 37 of 2002 (Shailendra Kumar Vs. Prachi) under section 12 (1) of Hindu Marriage Act 1955 (hereinafter referred to as Act, 1955), whereby marriage between parties has been declared, a nullity.
2. First Appeal No. 107 of 2016 (Shalendra Kumar Vs. Prachi) has been filed by plaintiff Shailendra Kumar, challenging findings recorded by Principal Judge, Family Court, Allahabad on Issue Nos.1, 2 and 3 in judgement dated 4.12.2010 rendered in Matrimonial Case No. 37 of 2002 (Shailendra Kumar Vs. Prachi).
3. First Appeal No. 157 of 2016 (Dr. Prachi Sharma Vs. Dr. Shailendra Kumar) has been filed by appellant Dr. Prachi Sharma challenging Order dated 24.11.2008, passed by Principal Judge, Family Court, Allahabad in Marriage Petition No.37 of 2002 (Shailendra Kumar Vs. Prachi Sharma), whereby application filed by appellant under section 24 of Act, 1955 (Paper No. 47 Ka) has been allowed and plaintiff has been directed to pay only a consolidated sum of Rs. 10,000/- to the appellant towards litigation expenses. appellant had also challenged order dated 6.2.2009, passed by Principal Judge, Family Court, Allahabad, whereby review application (Paper No. 69 Ka) filed by appellant, seeking review of order dated 24.11.2008, has been rejected.
4. We have heard Mr. Tej Prakash Mishra, learned counsel for defendant appellant Prachi and Mr. Ghanshyam Dwivedi for plaintiff Shailendra Kumar in First Appeal No. 157 of 2016 (Dr. Prachi Sharma Vs. Dr. Shailendra Kumar), Mr. Ghanshyam Dwivedi for plaintiff-appellant Shailendra Kumar and Mr. Rakesh Pandey for defendant-respondent Prachi in First Appeal No.107 of 2016 (Shailendra Kumar Vs. Prachi), Mr. Rajesh Kumar Tripathi, Advocate, holding brief of Mr. Vishnu Pratap Pandey, learned counsel for plaintiff-appellant Dr. Prachi Mishra and Mr. Ghanshyam Dwivedi, representing defendant-respondent Shailendra Kumar in First Appeal No. 40 of 2011 (Prachi Vs. Shailendra Kumar). We shall, hereinafter, referred Dr. Prachi Sharma as appellant and Shailendra Kumar as plaintiff.
5. According to plaint allegations, marriage of appellant Prachi was solemnized with plaintiff Shailendra Kumar on 27.11.2002 at Allahabad in accordance with Hindu Rites and Customs. According to plaintiff, marriage between parties never consummated, and as such, no issue was born out of aforesaid wedlock. After expiry of a period of one year and few days, plaintiff Dr. Shailendra Kumar filed Marriage Petition No. 37 of 2002 (Dr. Shailendra Kumar Vs. Dr. Prachi Sharma) under section 12 of Act, 1955 for a decree declaring marriage of parties as nullity. Plaintiff took as many as seven grounds for declaration of marriage as nullity. According to plaintiff, appellant has very weak eye-sight and cannot perform her house hold job without wearing spectacles. The aforesaid fact was concealed by parents of appellant at time of marriage. Appellant is also suffering from incurable form of disease in teeth. She was alleged to be suffering from Pyria and Peritonitis. The said fact was concealed before marriage and also at time of marriage. Appellant was further alleged to be suffering from Jaundice and abdominal pain, since before marriage and also at the time of marriage. Marriage of parties was got solemnized concealing the aforesaid. It was also alleged that parents of appellant concealed her age inasmuch as she was aged about 38 years at time of marriage, whereas, same was alleged to be 30 years at time of marriage. It was also pleaded that after marriage when appellant came to house of plaintiff, her behaviour was abnormal and unnatural which was like a psychotic patient. Appellant was also su