Judicial Analysis Court Copy Headnote Facts Arguments Court observation

MADHYA PRADESH HIGH COURT
Vivek Rusia and Binod Kumar Dwivedi, JJ.
Komal – Appellant
versus
Mayaram – Respondent
First Appeal No.450 of 2014
Decided on 22.8.2024

Advocates:
Counsel for the Parties:
For the Appellant: Shri Sudeep Bhargava learned counsel
For the Respondent: Shri Anirudh Saxena, learned counsel

IMPORTANT POINT
Nullity of marriage – A minor girl who is married to a major male, has both options of seeking nullity of marriage under Prohibition of Child Marriage Act, 2006 as well as getting divorce under Hindu Marriage Act, 1955.

Headnote:
Hindu Marriage Act, 1955 – Sections 12 and 13 – Prohibition of Child Marriage Act, 2006 – Section 3 – Nullity of marriage – At the time of marriage, appellant/wife was 15 years of age and respondent/husband was suffering from blindness in one eye – Suit seeking nullity of marriage has been dismissed that marriage cannot be declared null and void on a petition presented by either of party on the ground mentioned in Section 12 of HMA – District Court is a competent Court under Act of PCMA, 2006 to declare a marriage voidable in a petition filed for annulling child marriage by decree of nullity – Appellant was minor, she filed a civil suit under guardianship of her father – However, by ignorance of law, decree of declaration of marriage void was sought under Sections 5, 11 and 12 of HMA instead of Section 3 of PCMA, 2006 – It is a case of cruelty also – Marriage of a minor girl with a major male will cause mental as well as physical cruelty as she was not ready to perform marital obligations – Under Section 13 of HMA also she could have claimed divorce from husband / respondent – Impugned judgment and decree set aside and marriage declared as null and void. (Paras 6, 7, 8, 12 and 13)
Result: Writ Petition disposed of.

ORDER

Vivek Rusia, J.—Appellant/wife has filed this present appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as “HMA”) against a judgment dated 12.02.2014, whereby the 3rd Additional District Judge, Ujjain (M.P.) has dismissed the suit filed under Section 12 of HMA.

02. Facts of the case in short are as under:

2.1. The marriage of the appellant was solemnized with the respondent on 21.05.2009 under Hindu customs and rituals, the appellant approached the District Court by way of an application under Section 11 and 12 of HMA seeking a decree of nullity of marriage as void or voidable on the ground that at the time of marriage, she was 15 years of age and the respondent concealed the fact that he is blindness in one eye. After marriage, she lived with her husband, but they did not consummate their marriage. Later on, she came to know that the respondent cannot see from one eye, therefore, on this ground, the marriage dated 21.05.2009 is either void or is liable to be declared as voidable.

2.2. After receipt of the summons, the respondent appeared and filed the reply that the marriage of the appellant was performed by her mother, maternal uncle and maternal grandfather with him, he was not aware of her age, she is living with her parents and now she is not interested in living with him.

2.3. The learned District Judge framed 5 issues for adjudication which are as under:—

(Matter in Other Language)

2.4. The appellant examined Manohar Singh i.e. father, according to him, the marriage of the appellant was performed by his father-in-law without consulting him when his daughter was 15 years of age hence the marriage is nullity. The appellant examined herself after attaining the age of 18 years and according to her, she used to live in the house of maternal Uncle Banshilal who performed her marriage without her consent, at that time she was 15 years of age. She has exhibited her marksheets and educational qualification certificates.

2.5. In rebuttal, the respondent examined himself and Ramsingh. After bearing in mind the evidence that came on record, the learned Additional District Judge answered issue No.1 that the marriage was solemnized on 21.05.2009, at the time of marriage appellant was minor and before marriage and before the marriage the respondent was blind in one eye. The learned Additional District Judge answered issue No.4 against the appellant by holding that the marriage cannot be declared void or voidable under Sections 11 and 12 of HMA. Vide judgment dated 12.02.2004 dismissed the suit. Hence, this first appeal before this Court.

03. Shri Sudeep Bhargava, learned counsel appearing for the appellant submits that under Section 5 of HMA, the conditions for Hindu marriage are prescribed and the marriage is liable to be solemnized between any two Hindus if the conditions mentioned in Clause (i) to (iv) are fulfilled. As per Clause (iii) the bridegroom should have completed the age of “twenty-one years” and the bride should have completed the age of “eighteen years” at the time of the marriage. Learned counsel has further submitted that under Section 11 of HMA, any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party, if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of HMA. It is further submitted by the learned counsel that admittedly, this section does not include Clause (iii) of section 5 of HMA. Even under Section 12 of HMA, the marriage shall be voidable and may be annulled by a decree of nullity on the ground mentioned in clause (a) to (d). The learned Additional District Judge has dismissed the suit relying on a judgment passed by this Court in the case of Gindan V/s Barelal, AIR 1976 M.P. 83, but in the said judgment, the effect of Section 3 of The Prohibition of Child Marriage Act, 2006 (hereinafter referred as “PCMA, 2006”) was not considered which says that every chi