FAO-855-2021

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HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-855-2021

Date of decision:26.08.2021

Yogesh Kumar

....Appellant

V/s.

Priya

.....Respondent

CORAM: HON'BLE MS. JUSTICE RITU BAHRI

HON'BLE MR. JUSTICE ARUN MONGA

Present:

Ms. Gitanjali Chhabra, Advocate for the appellant.

Mr. Raman B.Garg, Advocate for the respondent.

****

Ritu Bahri, J. (Oral).

The appellant as well as respondent are aggrieved of order

dated 12.01.2021 whereby the learned Principal Judge, Family Court,

District Ludhiana has dismissed the petition filed under Section 13-B of

Hindu Marriage Act, 1955.

The brief facts of the present case are that the marriage between

the parties was solemnized on 27.02.2009 as per Hindu rites and

ceremonies. At the time of marriage i.e. on 27.02.2009, the appellant

(husband) was major being of the age of 23 years, 5 months and 10 days

because his date of birth was 17.09.1985 as per Aadhar Card (Mark-B).

Whereas the respondent (wife) was of the age of 17 years, 6 months and 8

days on the date of marriage i.e. on 27.02.2009 because her date of birth

was 19.08.1991 as per Aadhar Card (Mark-A). Both the parties continued

to live together and cohabited as husband and wife till 31.08.2017. Out of

this wedlock, a male child namely Manas was born on 31.01.2010, who has

been living with the appellant (father) since 31.08.2017.

DIVYANSHI

2021.09.16 12:07

I attest to the accuracy and

authenticity of this document

High Court Chandigarh

FAO-855-2021

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The grievance of the parties is that they had filed a joint

petition under Section 13-B of the Hindu Marriage Act, 1955 for dissolution

of marriage by way of decree of divorce by mutual consent before the

learned Family Court on 22.06.2020. However, the learned Family Court

dismissed their joint petition vide judgment and decree dated 12.01.2021 by

observing that the marriage of the parties was not a valid marriage as the

respondent (wife) had not completed the age of 18 years as per the mandate

of Section 5(iii) of the Hindu Marriage Act, 1955 vide which the parties

were required to fulfill the basic condition of the said Section.

The Family Court had referred to a judgment passed by the

Madras High Court in Prema Kumari Vs. M. Palani, 2013 (6) RCR (Civil)

2953 and held that parties were required to get their marriage nullified as

per Section 13(2)(iv) of the Hindu Marriage Act.

Heard learned counsel for the parties and perused the case file.

The above said judgment is not applicable to the facts of the

present case. Section 13(2)(iv) is reproduced as under:-

13-(2) A wife may also present a petition for the dissolution of

her marriage by a decree of divorce on the ground-

(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.

The girl who has attained 15 years of age and has got married

can seek dissolution of marriage before she attains the age of 18 years by

filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.

In the facts of the present case, the marriage of Yogesh Kumar

was solemnized on 27.02.2009 and the appellant (husband) was major being

the age of 23 years, 5 months and 10 days being his date of birth as

DIVYANSHI

2021.09.16 12:07

I attest to the accuracy and

authenticity of this document

High Court Chandigarh

FAO-855-2021

-3-

17.09.1985 as per Aadhar Card (Mark-B) and the respondent (wife) was of

the age of 17 years, 6 months and 8 days being her date of birth as

19.08.1991 as per Aadhar Card (Mark-A). The wife was not 15 years of age

and could not invoke the provisions of Section 13(2)(iv) of the Hindu

Marriage Act. Had she been 15 years of age, she could have invoked the

provisions only before she attains the age of 18. In the present case, after

marriage both the parties continued to live together till 31.08.2017. The

respondent (w