Hon'ble Vivek Kumar Birla,J.

Hon'ble Syed Qamar Hasan Rizvi,J.

1. Heard Shri Shyam Surat Shukla, learned counsel for the appellant and Shri Rakesh Dubey, learned counsel appearing for the respondent.

2. The present appeal has been filed against the judgement and order dated 10.01.2024 passed by Additional Principal Judge, Family Court No.3, Kanpur Nagar, in Case no.893 of 2022 (Deepak Mahendra Pandey Versus Shatakshi Mishra), under Section 11/5 of Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act').

3. One Deepak Mahendra Pandey filed a petition, under Section 11 of the Act on 05.04.2022 on the ground that the marriage was an outcome of fraud as he has come to know that Shatakshi Mishra (the wife, appellant herein) was already married whereas at the time of marriage, she projected herself as unmarried and even produced various documents showing herself as unmarried girl and that she has also not converted into Hinduism and therefore, the marriage be declared void after filing of the petition.

Unfortunately, the husband, Deepak Mahendra Pandey died on 24.02.2023 in a road accident.

4. By the impugned order dated 10.01.2024 , the application filed by the parents after the death of their son was allowed holding that the provisions of Order 22 of the Civil Procedure Code (hereinafter referred to as the 'CPC') are applicable in the present case in the light of the provisions of the Family Court Act and the parents were made party to the proceedings to pursue the petition.

5. It is submitted by learned counsel for the appellant that the dispute cannot continue after death of one of the spouse during the pendency of the litigation. He submits that after the death of the husband on 24.02.2023, the petition would stand abated.

6. It is further submitted that the Court below has committed a gross mistake of law in holding that the provisions of Order 22 CPC would be applicable in view of Section 10 of the Family Courts, Act, 1984.

7. Per contra, learned counsel for the respondent has supported the impugned order and submits that the Court below has not committed any mistake in allowing the aforesaid application as the property rights would certainly be get affected from the outcome of the present petition filed under Section 11 of the Hindu Marriage Act, if the marriage is declared void. He has placed reliance on a judgement of Hon'ble Division Bench judgement of this Court in Garima Singh Vs. Pratima Singh and another, 2023 (9) ADJ 101 (DB) by making reference to paragraphs 37 to 48 of the judgement.

8. We have considered the rival submissions and have perused the record.

9. Before proceeding further, it would be appropriate to take note of the relevant provisions of law.

10. Sections 5 and 11 of the Hindu Marriage Act reads as under:-

"5. Condition for a Hindu Marriage " A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-

1.neither party has a spouse living at the time of the marriage;

2. at the time of the marriage, neither party- i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

iii) has been subject to recurrent attacks of insanity;

3. the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;

4. the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

5. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;"

11. Void Marriage "Any marriage solemnized after the commencement of this Act shall be null and vo