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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

D.B. Civil Misc. Appeal No. 574/2023

Aabudi Devi D/o Adopted Daughter Of Shri Amana Ram, Aged

About 30 Years, Residing Of Village Medas Tehsil Riya Badi,

District Nagaur.

----Appellant

Versus

Rajuram Dewasi S/o Shri Arjunram, Aged About 35 Years,

Resident Of Village Atpada, Tehsil Sojat, District Pali.

----Respondent

For Appellant(s)

:

Mr. Vishal Sharma.

For Respondent(s)

:

HON'BLE MR. JUSTICE ARUN BHANSALI

HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order

12/10/2023

1.

This appeal is directed against the judgment and decree

dated 23.12.2022 passed by Family Court, Merta, whereby, the

petition filed by the appellant under Section 13 of the Hindu

Marriage Act, 1955 (‘the Act of 1955’), seeking dissolution of

marriage has been dismissed as barred by limitation.

2.

The appellant filed proceedings under Section 13 of the Act

of 1955 inter alia with the submissions that she was married of

while she was only 3 years of age and after making several

submissions, relief was claimed that on account of the marriage

having been solemnized while she was minor i.e. 3 years of age,

the same may be dissolved.

3.

A written statement was filed disputing the averments made

in the petition and claiming that the appellant was major and they

have two children namely Sharda and Ravindra.

4.

After the evidence was led by the parties, the Family Court

framed only one issue pertaining to the fact that marriage was

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[CMA-574/2023]

solemnized at the age of 3 years and whether the appellant was

entitled to seek dissolution of marriage.

5.

While deciding the said issue the, the Family Court referred

to the provisions of Child Marriage Restraint Act, 2006 (‘the Act of

2006) and with reference to Section 3 of the said Act and its sub-

Section (3), came to the conclusion that the suit seeking a

declaration of the marriage being void could be filed within two

years from the date of attaining the age of majority and as the

suit was filed at the age of 24 years, the same was barred by

limitation and consequently, dismissed the petition filed by the

appellant.

6.

Learned counsel for the appellant made submissions that the

Family Court fell in error in dismissing the suit based on the

provisions of the Act of 2006, inasmuch as, the provisions of

Section 13(2)(iv) of the Act of 1955, is independent of the Child

Marriage Restraint Act, which provides for a ground seeking

dissolution of marriage and, therefore, the judgment impugned

deserves to be set aside.

7.

In the alternate, submissions were made that as the

appellant had made certain averments in the petition touching

other grounds under Section 13(1) of the Act of 1955, however, as

neither any issue was framed nor any evidence was led, the

petitioner may be permitted to file fresh proceedings in

accordance with law.

8.

We have considered the submissions made by learned

counsel for the appellant and have perused the material available

on record.

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9.

It is not in dispute that the Family Court with reference to

the Child Marriage Restraint Act, 2006, has dismissed the

proceedings as barred by limitation without referring to the

provisions of Section 13(2)(iv) of the Act of 1955. The provisions

of Section 13(2)(iv) of the Act of 1955, read as under:-

“13. Divorce.-

(1)

……

(2)

A wife may also present a petition for the

dissolution of her marriage by a decree of divorce on

the ground,-

(i)

……

(ii)

……

(iii)

……

(iv)

That her marriage (whether consummated or

not) was solemnised before she attained the age of

fifteen years and she has repudiated the marriage after

attaining that age but before attaining the age of

eighteen years.”

10.

A perusal of the above provision reveals that a