Smt. Mausmi Sharma vs Himanshu Sharma
2017 Latest Caselaw 5281 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- FIRST APPEAL No. - 101 of 2016
 

 
Appellant :- Smt. Mausmi Sharma
 
Respondent :- Himanshu Sharma
 
Counsel for Appellant :- Dhiraj Srivastava,B.K. Srivastava
 
Counsel for Respondent :- Sudeep Kumar Pathak
 

 
Hon. Arun Tandon, J.

Hon. Rajiv Joshi, J.

This appeal under Section 19 of the Family Court Act, 1984 has been preferred by the wife against the judgment and decree passed by the Principal Judge, Family Court, Kanpur Nagar in Suit No. 1745 of 2014 dated 02.02.2016.

The Family Court under the judgment and decree in appeal has been pleased to grant a decree declaring the marriage between the appellant Mausmi Sharma and the husband Himanshu Sharma as a nullity in exercise of powers under Section 24(1)(i)(d) of the Special Marriages Act, 1954.

The appeal was admitted under an order dated 16.03.2016. The lower court records have been received and the paper books have been prepared.

We have heard Sri B.K. Srivastava, Senior Advocate assisted by Sri Dhiraj Srivastava, Advocate on behalf of the appellant (wife) and Sri M.C. Chaturvedi, Senior Advocate assisted by Sri Sudeep Kumar Pathak on behalf of the respondent (husband), and have examined the material available on record.

For deciding the appeal it would be relevant to state the facts as emerge from the records before us.

Marriage between Mausmi Sharma (wife) and Himanshu Sharma (husband) is stated to have taken place on 11.04.2001 under the provision of the Special Marriage Act, 1954 (hereinafter referred to as 'Act, 1954'). The husband filed Suit No. 1745 of 2014 for decree of declaration that the marriage between Mausami Sharma and Himanshu Sharma be declared a nullity under Section 24(1)(i)(d) of the Act, 1954 on two grounds; (a) marriage having been performed under coercion, and (b) that the husband and wife fall within the prohibited degree of relationship within the meaning of Section 4 read with Section 2(b) of the Act, 1954, and therefore the marriage was a nullity.

The proceedings were contested by the wife. It was stated that the plea of coercion could not be established by any cogent material evidence and even otherwise the proceedings for the marriage being declared as nullity were initiated after 13 years of the marriage and therefore having regard to the provision of Section 25 read with Section 34 of the Act, 1954 the Court concerned may not grant the decree as prayed for.

It was the case of the wife that the plea of coercion even otherwise looses all significance in view of the fact that the suit should have been instituted immediately on the date the coercion had come to an end. 13 years was too long a period for said coercion to have continued.

So far as the second ground raised by the husband is concerned, it was contended that the husband and the wife are not related by blood or by uterine. Therefore, they do not fall within the prohibited degree of relationship.

On behalf of the husband it was specifically pleaded that his father and the wife's mother were real brother and sister. Therefore, they fall within the prohibited degree of relationship as per Entry No. 37 of Part-I of First Schedule and Entry No. 35 of Part-II of the First Schedule of the Act, 1954.

The court below has found that the plea of marriage being void on the ground of coercion could not be established. The plea pressed in that regard has been rejected. However, the court has come to a conclusion that having regard to the relationship between father of the husband and the mother of the wife they fall within the prohibited degree of relationship and therefore in view of Section 24 read with Section 4 and Section 2(b) of the Act, 1954 the marriage was liable to be declared void. Accordingly a decree has been made in that regard.

Before us Sri B.K. Srivastava, Senior Advocate made an attempt to contend that the relationship between the husband and the wife could not be shown to be by uterine blood or by full blood and therefore having regard to the explanation to Section 2(b)(a) of the Act, 1954 the court below could not have held the parties to be within the prohibited degree of relationship. Nothing much was added in respect of the ground of coercion inasmuch as the finding in that regard is in favour of the appellant.

For appreciating the contention raised before us we may notice that there is no dispute between the parties, that the mother of the husband, namely Kamla Sharma is the real sister of the father of Mausami Sharma (the wife), namely Sri Chandra Prakash Sharma. It is, therefore, admitted to the parties that the wife of Himanshu Sharma would answer the description of 'Mother's brother's daughter' as contained in Entry No. 37, Part-I of First Schedule. Similarly, the husband Himanshu Sharma would answer the description of 'Father's sister's son' as covered by Entry No. 35 of Part-II of the First Schedule to the Act, 1954.

Once we arrive at the said conclusion, it will be seen that having regard to the definition contained in Section 2(b) read with Entry No. 37 of Part-I and Entry No. 35 of Part-II of First Schedule to the Act, 1954 regarding degree of prohibited relationship, which is quoted herein below, Mausami Sharma and Himanshu Sharma would fall within such degree of prohibited relationship. Section 2(b) and relevant part of First Schedule to Act, 1954 and quoted herein below:

"2. Definitions.-In this Act, unless the context otherwise requires,-

(b) "degrees of prohibited relationship"- a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship;

THE FIRST SCHEDULE

[See section 2(b) "Degrees of prohibited relationship"]

PART I

37. Mother's brother's daughter.

PART II

35. Father's sister's son."

The consequence of such a marriage being void flow from a simple reading of section 4(d) read with section 24 of the Act, 1954, which read as follows:-

"4. Conditions relating to solemnization of special marriages.- Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:-

(a).........

(b)........

(c)........

(d) the parties are not within the degrees of prohibited relationship;"

"24. Void marriages.-(1) Any marriage solemnized under this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if-

(i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled;

(ii) ......

Section 24(1) of the Act, 1954 declares what would be void marriages. The Act provides that if any of the conditions specified in clause (a), (b), (c) and (d) of section 4 are not fulfilled, the marriage would be void.

It is, therefore, clear that once it is found that Mausami Sharma and Himanshu Sharma fall within the prohibited degree of relationship, their marriage stands declared void by operation of law in view of Section 24 of the Act, 1954. Therefore, the judgment and decree passed by the could below cannot be faulted with.

This takes the Court to the other contention raised on behalf of the appellant, namely, having regard to the provisions of Section 25 read with Section 34 of the Act, 1954 the court below could not have granted the declaratory decree that the marriage was null and void in view of delay of 13 years in filing of the suit.

Section 25 provides for a decree of nullity being made in respect of voidable marriage and for the purpose it has been provided that the Court shall not grant such a decree unless the proceedings are initiated within one year from the date of the marriage.

In our opinion Section 25 proviso (b) will have no application in the case of void marriage covered by Section 24 and therefore reference to Section 25 on behalf of the appellant is totally uncalled for.

So for as Section 34 of the Act, 1954 is concerned, it confers a duty upon the Court concerned at the first instance to refuse to grant decree prayed for, if there has been unnecessary or improper delay in instituting the proceedings. Section 34(1)(e) and (f) of the Act, 1954 reads as under:-

"34. Duty of court in passing decrees.-(1)In any proceeding under Chapter V or Chapter VI, whether defended or not, if the court is satisfied that,-

(a).......

(b).......

(c).......

(d)......

(e) there has not been any unnecessary or improper delay in instituting the proceedings; and"

(f) there is no other legal ground why the relief should not be granted; then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

The marriage between persons within prohibited degree of relationship is declared null and void by operation of law. In respect of such a null and void marriage an option has been left to the parties to the marriage to initiate proceedings for a declaration being made under Section 24 of Act, 1954. Even in absence of the declaration by the Court, the marriage would continue to be void in the eye of law.

In the facts of the case we have been informed during hearing of the case that the husband never resided with the wife at any point of time for last 13 years. We, therefore, see no reason as to how the Court could have refused to grant the declaratory decree in the facts of this case.

In the totality of the circumstances on record, we find no illegality or infirmity in the judgment and decree passed by the lower court in Suit No. 1745 of 2014 dated 02.02.2016.

The appeal lacks merit and is accordingly dismissed.

Date:-10.10.2017

Pkb/101-16