Bombay High Court
Sau. Vandana Mangesh Dhote vs Mangesh Jagdeorao Dhote on 18 November, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FAMILY COURT APPEAL (FCA) NO.21/2015
Sau. Vandana Mangesh Dhote,
aged about 42 Yrs., Occu. Household Work,
R/o C/o Pradeep Shalikram Jayale,
Akoli Jahgir, Tq. Akot, Distt. Akola. ..Appellant.
(Ori. Respondent)
..Vs..
Mangesh Jagdeorao Dhote,
aged about 31 Yrs., Occu. Private Work,
R/o Phadke Nagar, Dhabki Road,
Akola, Tq. and Distt. Akola. ..Respondent.
(Ori. Petitioner)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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CORAM : B.R. GAVAI AND V.M. DESHPANDE, JJ.
DATED : 18.11.2016.
JUDGMENT (Per V.M. Deshpande, J.)
1. The appellant being aggrieved by the judgment and order of decree
of annulment of marriage passed by learned Judge of Family Court, Akola
dated 6.2.2015 in A. Petition No.109/2013 is before this Court by filing the
present appeal under Section 19 of the Family Court Act, 1984.
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2. The parties in the present appeal will be referred to as husband and
wife.
3. We have heard Shri A.B. Mirza, learned counsel for the appellant /
wife and Shri J.H. Kothari, learned counsel for the respondent / husband.
With their able assistance we have also gone through the notes of evidence of
the respective witnesses examined by the parties before the Court below and
also the documents filed on record.
4. Husband preferred a petition under Section 12 of Hindu Marriage
Act, 1955 and sought decree of annulment on the ground that a fraud was
played on him by suppressing real age by the wife at the time of marriage.
The petition states that at the time when the discussion for fixation
of marriage was made in the house of wife at Akola, that time, it was informed
to the husband that wife was born in the month of March, 1989. Believing the
said statement, the husband and other relatives went to Akoli Jahagir to see the
wife, that time, it was noticed by him that she was having a less height than
him and was also a thin physique. From her physical appearance, he was
unable guess about her age. On the say of the relatives of the wife marriage
was fixed and it was performed on 28.6.2012 at Akoli Jahagir. At the time of
marriage the age of the husband was 28 years. It is also stated in the petition
that at the time of marriage no dowry was taken. It was also stated in the
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petition that after the marriage the behaviour of the wife was not co-operative
and she used to pick up quarrels on trivial issues. After 5 th day of marriage,
Pradeep, brother of the wife, came to the house of the husband for taking the
wife with him. After 15 days when husband had been to the wife's paternal
house for taking her to the matrimonial house, that time the wife did not
accompany him and was avoiding the company of the husband. That time,
when the husband made enquiries it was revealed to him that she is elder by 11
to 12 years to him. The husband got shocked due to this information and he
alone returned to his house.
Thereafter Pradeep, brother of the wife, came to the house of the
husband at that time when the husband and his parents demanded the birth
certificate and when it was informed to him that the wife is elder by 11 to 12
years in age than the husband, Pradeep left wife in her matrimonial house.
Subsequently, the wife disclosed that she was born in the year 1973 and
thereafter on 20.7.2012 the wife left her matrimonial house.
5. The petition was resisted by the wife by filing the written statement.
From the written statement it is the specific case of the wife that prior to 3 days
of their engagement it was known to the husband that she is elder than him
and, therefore, they demanded a dowry of Rs.5,00,000/-, however, it was
ultimately decided that since the wife is elder than husband Rs.3,60,000/- will
be given as dowry. Therefore, according to the written statement, at the time
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of marriage itself the husband was knowing the age.
6. Admittedly, date of birth of the husband is 22.11.1983 and date of
marriage is 28.6.2012. Thus, at the time of marriage the age of the husband
was 28 years. Record shows that the date of birth of the wife is 23.5.1973 as it
could be seen from Exh.48, the school leaving certificate which is filed on
record by the wife on the direction of the learned Judge of the Family Court.
Thus, on the date of the marriage the age of the wife was 40 years. Further at
the time of her marriage she was aged about 40 years is specifically admitted
by the wife during her cross-examination. In view of the documentary
evidence and on the basis of the admission given by the wife herself it is
crystally clear that at the time of marriage she was elder to the husband by
about 12 years.
7. Now according to the wife it was well within knowledge of the
husband about her age. The evidence of husband and his witnesses shows that
at the time of fixation of marriage they believed the word of the relatives of the
wife that she is born in the year 1989. Normally, in our society the words are
believed about the age, at the most there could be margin of 1 to 2 years but it
is not expected at the time of fixation of marriage that either party will ask the
documentary proof about the age.
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8. The wife has examined one Tejrao Himmatrao Bathe to prove her
case that at the time of fixation of marriage it was revealed to the husband that
she is more in age. Except this witness there is no other evidence available on
record to substantiate her claim.
9. This Tejram Bathe deposed from the witness box that he acted as a
middleman in the marriage between the parties. According to his evidence in
March, 2012 the husband and his brother-in-law - Shriram Bathe and
Shalikram Bathe had been to village Sogola in connection with marriage of son
of Baburao Onkar Bathe closed relative of this witness. According to the
evidence of this witness he proposed the name of wife, however, that time it
was informed to the husband and his relatives that she is elder than him,
however, the husband and his relatives informed that their agricultural
property is mortgaged and, therefore, they are in dire need of money and,
therefore, the marriage took place.
From the cross-examination of this witness we have no doubt in our
mind that this witness examined by the wife is not a witness to the truth
though in his examination-in-chief he claims that in March, 2012 husband and
his other relatives had been to one marriage at Sogola, in cross-examination he
was required to admit that the said marriage took place on 4.3.2014. If that be
so, there was no occasion for husband and his relatives to meet this witness
Tejrao at Sogola in the year 2012. Even the marriage card in respect of
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marriage dated 1.3.2014 is duly proved and it is at Exh.58. Thus, it is clear
that this witness cannot be termed as truthful and being close relative of the
wife is ready to make any statement, therefore, his evidence cannot be
considered at all.
10. What is other pertinent thing to note that is that the case pleaded in
the written statement was not put to the husband or his witnesses when they
were cross-examined. The wife has utterly failed to prove the same.
11. The evidence of husband and his relatives shows that they believed
the word about the age of the wife. There is nothing available on record to
show at the time of fixing of the marriage the husband or his relatives were
knowing the date of birth of the wife. In that view of the matter, we are of the
considered view that the finding recorded by the learned Judge of the Family
Court that the husband and his relatives were misrepresented by the wife and
her relatives about age and, therefore, the husband is entitled for the decree as
prayed need no interference.
12. The learned counsel for the appellant submitted that the petition
was barred by limitation in view of sub-clause (i) of Clause (a) of sub-section
(2) of Section 12 of the Hindu Marriage Act. We are afraid that this plea could
be entertained at appellate stage. The learned counsel for the appellant / wife
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has fairly stated that the written statement is completely silent about the
limitation. Limitation is a mixed question of facts and law. In that view of the
matter, the said has to be decided on the basis of rival pleadings and the
evidence to support the respective plea. In absence of such, we are of the view
that at appellate stage the wife cannot be permitted to raise such a plea
specially when there is no foundation in her case. Resultantly, the appeal fails
and is dismissed. In the circumstances, the parties to bear their own costs.
JUDGE JUDGE
Tambaskar.
