The Allahabad High Court held that grounds under Section 11 of the Hindu Marriage Act 1955 are very different from grounds under Section 12 and thus, a petition filed under Section 11 of the Act cannot be judged on grounds other than those mentioned in Section 11.
Brief Facts:
The appellant-wife challenged the order of the Family Court dismissing her petition filed under Section 11 as being patently illegal pleading that the petition was earlier filed under Section 12, however, vide amendment, Section 12 was replaced with Section 11 of the Act.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner argued that the marriage was entered into under duress since the appellant did not have funds for her mother’s treatment and the marriage was an outcome of fraud and the petition under Section 11 was liable to be allowed. It was further contended that the admitted fact of the case is that initially petition was filed before the Family Court under Section 12 of the Act, which was deleted and Section 11 of the Act was incorporated, therefore, any other relief in the facts and circumstances was also liable to be considered and granted. Submission, therefore, is that even by ignoring the grounds of Section 11 of the Act, the relief should have been granted to the appellant-plaintiff herein and the marriage was liable to be declared void.
Observations of the court:
The court noted that the family court had considered the provisions of Sections 5 and 11 of the Act and found that none of the grounds as given in Section 11 of the Act existed in the present case and therefore, the petition was dismissed on merits and during the course of arguments, on a pointed query, learned counsel for the appellant fairly conceded that no ground as provided in Section 11 of the Act is available in the present case and the petition should have been considered on the other grounds and also on the grounds as available in Section 12 of the Act and further it was further pointed out that the ceremony of Saptapadi (Sat Fera) was not performed and no marriage ceremony had taken place, therefore, the marriage was not valid and therefore, registration of marriage was inconsequential in nature.
Further, the court stated that a void marriage is regarded as non-existent or as never having taken place and such declaration that the marriage is void ab initio can be sought under Section 11 of the Act on the grounds as provided therein whereas a voidable marriage is regarded as valid and subsisting unless a competent court annuls it until the decree of nullity is obtained in accordance with the Hindu Marriage Act and unless the decree is granted, the lis remains binding and continues to subsist.
Further, the court stated that since the appellant's wife had admitted to the factum of marriage before the Sub Registrar, Kanpur Nagar the question of fraud could not be raised and the amendment application was filed by the appellant herself, changing the nature of the petition from Section 12 to Section 11, therefore, it was not open for her to contend that the petition could have been considered on grounds other than Section 11 and the grounds available for divorce under Section 11 and Section 12 are different.
Further, it was stated that for a voidable marriage, a declaration is necessary, however, the same is not the case with a marriage void and since the appellant is an educated lady and working as Executive Officer, Nagar Panchayat, Manjhanpur, District Kaushambi, it was unbelievable that she could be forced to have signed marriage registration papers.
The decision of the Court:
The court dismissed the petition.
Case Title: Km. Ankita Devi vs. Jagdependra Singh @ Kanhaiya
Coram: Hon’ble Mr. Justice Vivek Kumar Birla and Hon’ble Mr. Justice Donadi Ramesh
Case No.: FIRST APPEAL No. - 1391 of 2023
Advocate for the Petitioner: Vinay Mishra, Mata Achal Mishra
Advocate for the Respondent: None
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