Karnataka High Court
Sri S Karibasappa vs Smt S Bhuvaneshwari on 24 May, 2023
Bench: Alok Aradhe, Anant Ramanath Hegde
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24th DAY OF MAY, 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MFA NO.6709 OF 2016 (MC)
C/W
MFA NO.155 OF 2016 (MC)
IN MFA NO.6709/2016:
BETWEEN:
SRI S KARIBASAPPA,
S/O SRI M SIDDAPPA,
AGED ABOUT 36 YEARS,
R/O 9TH CROSS,MALAPPANAHATTI - 577501,
CHITRADURGA TALUK AND DISTRICT. ...APPELLANT
(BY SRI BALAGANGADHAR G.S, ADVOCATE)
AND:
SMT S.BHUVANESHWARI,
W/O SRI S KARIBASAPPA,
AGED ABOUT 22 YEARS,
R/O 9TH CROSS, MALAPPANAHATTI - 577501,
CHITRADURGA TALUK AND DISTRICT. ...RESPONDENT
(BY SRI MADHUKAR NADIG, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 28(1) OF
THE FAMILY COURT ACT, TO CALL FOR RECORDS FROM
THE FILE OF THE LEARNED PRINCIPAL SENIOR JUDGE,
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C.J.M & MACT-III, CHITRADURGA PERTAINING TO
M.C.NO.111/2013 AND ETC.,
IN MFA NO.155/2016:
BETWEEN:
SMT S.BHUVANESHWARI,
W/O SRI S KARIBASAPPA,
AGED ABOUT 21 YEARS,
R/O 9TH CROSS, MALAPPANAHATTI - 577501,
CHITRADURGA TALUK AND DISTRICT. ... APPELLANT
(BY SRI MADHUKAR NADIG, ADVOCATE)
AND:
SRI S KARIBASAPPA,
S/O SRI M SIDDAPPA,
AGED ABOUT 35 YEARS,
R/O 9TH CROSS, MALAPPANAHATTI - 577501,
CHITRADURGA TALUK AND DISTRICT ...RESPONDENT
(BY SRI BALAGANGADHAR G.S, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF
THE FAMILY COURT ACT, AGAINST THE JUDGMENT AND
DECREE DATED: 07.12.2015 PASSED ON M.C
NO.111/2013 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, C.J.M & MACT-III, CHITRADURGA,
PARTLY ALLOWING THE PETITION FILED UNDER
SECTION 13(1)(1-a) OF HINDU MARRIAGE ACT.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.05.2023, COMING
ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
ANANT RAMANATH HEGDE J., DELIVERED THE
FOLLOWING:
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JUDGMENT
These two appeals arise from the judgment and
decree dated 07.12.2015 in M.C.No.111/2013 on the
file of the Principal Senior Civil Judge, CJM, Chitradurga.
In terms of the impugned judgment and decree, the
petition seeking dissolution of marriage filed by husband
under Section 13(1) (1-a) and (1-b) of Hindu Marriage,
Act, 1955 (hereinafter referred to 'Act of 1955' for
short) is allowed on the ground that the marriage
between the petitioner and the respondent is in
contravention of Section 5 of the Act of 1955. However,
the Family Court did not accept the plea relating to
cruelty and desertion.
2. Aggrieved by the said judgment and decree,
the appellant/husband is in appeal in MFA 6709/2016
and respondent/wife is in appeal in MFA 155/2016.
Both the appeals are filed under Section 28(1) of the
Act of 1955.
3. Briefly stated the facts are as under:
- The marriage between the parties was
solemnized on 16.03.2008. The school records disclose
the date of birth of respondent/wife as 12.03.1994. The
husband contended that the respondent was aged 14
years at the time of marriage and was incapable of
giving the valid consent.
The respondent/wife contested the petition. She
contended that she was born in 1990. It is further
contended the husband contracted second marriage
and has a child from the second marriage. It is also
contended by the husband was insisting for dowry and
abused, pressurized her to bring dowry and accordingly
prayed for dismissal of the petition.
4. The husband examined himself as PW1 and
documents at Ex.P. to Ex.P.4 were marked on his
behalf. The wife is examined as RW1 and documents on
her behalf were marked as Ex.R.1 to Ex.R.9. The
mother of respondent is examined as RW2.
5. The Family Court recorded the evidence and
held that respondent/wife was minor at the time of
marriage and held that the marriage contravened
Section 5 of the Act of 1955. The Family Court rejected
the claim relating to alleged cruelty and desertion.
6. The husband is in appeal before this Court on
the ground that the plea relating to cruelty and
desertion ought to have been accepted and divorce
ought to have been granted on those grounds.
7. The respondent/wife is in appeal on the
premise that marriage could not have been held to be
void under Section 5 of the Act of 1955 as such a plea
is available only to the spouse who is minor.
8. Heard Sri Balagangadhar G S, learned
advocate appearing for the appellant/husband and Sri
Madhukar Nadig, learned advocate appearing for the
respondent/wife.
9. Sri Balagangadhar G S, inviting attention of
this Court to Section 3(1A) of the Prohibition of Child
Marriage Act, 2006 (hereinafter referred to as the 'Act
of 2006' for short) as amended by Act No.26 of 2017 of
Karnataka, contended that the marriage solemnized
before the male completing 21 years of age and female
competing 18 years of age is void ab initio and the wife
was aged 14 years at the time of marriage, as such the
marriage is void.
10. Sri Madhkar Nadig, learned counsel for the
respondent/wife submitted that the provision referred to
above as amended in 2017, cannot be made applicable
to the marriage between the appellant/husband and the
respondent/wife as the marriage was solemnized in
2008 itself.
11. We have considered the contentions on both
sides and have perused the materials on record.
12. Section 3(1A) of Act of 2006, reads as
under:
"(1A) Notwithstanding anything
contained in sub-section (1) every child
marriage solemnized on or after the date of
coming into force of the Prohibition of Child
Marriage (Karnataka Amendment) Act, 2016
shall be void abinitio".
(Emphasis supplied)
13. The expression "on or after the date of
coming into force of the Prohibition of Child Marriage
(Karnataka Amendment) Act, 2016 shall be void abinitio"
appearing in the aforementioned provision makes it clear
that the amended provision shall apply only in respect of
the marriages solemnized on or after the date of coming
into force. The amended provision came into force on
26th April, 2017. The said amendment is prospective in
operation. Before the amendment such marriage was
voidable under Section 3 of the Act of 2006. A marriage
which was voidable under Section 3 of the Act of 2006,
at the option of contracting child to the marriage, cannot
be declared as void by giving retrospective effect to the
amended provision. The position of law that the decree
seeking dissolution of marriage on the ground that it
contravenes Section 3 of the Act of 2006 is available only
to the contracting party to the marriage who was minor
at the time of marriage is well settled in terms of law laid
down by the Apex Court in the case of BHAGWATI @
REENA vs ANIL CHOUBEY reported in AIR 2017 SC
1957.
14. This being the position, this Court is of the
view that the petition seeking dissolution of marriage on
the ground that the marriage is void can be filed only by
the contracting party to the marriage who was minor at
the time of marriage. Since, the husband had completed
21 years at the time of marriage, the trial Court could
not have held that marriage is void in the petition filed by
the husband.
15. This being the position, a decree for
dissolution of marriage on the ground that marriage is
void is unsustainable and has to be set-aside.
16. Since, appeal is also filed by the husband
challenging the judgment and decree on the ground the
Family Court refused to grant a decree for divorce on the
ground of cruelty and desertion, this Court has
considered the contentions raised in this regard and also
perused the records.
17. Though the appellant/husband has invoked
Section 13(1)(i-a) and (i-b) of the Act of 1955, this Court
on perusal of pleading is of the view that there is no
specific pleadings to attract cruelty and desertion. The
appellant/husband has not pleaded that the
respondent/wife is staying away from the husband two
years prior to the petition, with an intention to put an
end to the marital relationship which is a primary
requirement to seek divorce on the ground of desertion.
The pleading relating to cruelty is also vague and suffers
from want of particulars and specific instances. The
appellant/husband has pleaded that respondent/wife is
not willing to stay with him in the joint family and she
insisted to reside separately in Chitradurga. It is alleged
that she used to pick up quarrel for small and silly
reasons. The said plea is too vague to be considered.
18. Though pleading is inadequate, as already
noticed, the Court has considered the evidence on record
relating to alleged cruelty and desertion. It is required to
be noticed that the mother of the appellant/husband has
given evidence in support of her daughter-in-law.
Learned counsel for the appellant/husband contended
that much weight cannot be attached to the evidence of
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the mother as the respondent/wife happens to be the
brother's daughter of appellant's mother.
19. This Court has considered the contention in
the backdrop of evidence available on record and also the
finding of the Family Court. The evidence on record
would disclose that the marriage was solemnized in
2008. As already noticed wife in her statement of
objection has alleged that the husband has contracted
second marriage and has a son from the second
marriage. Though the husband denied the allegation, in
the cross examination he admitted the second marriage
and also about the son begotten from the second
marriage. It is also relevant to note that the son from
the second marriage was born on 09.10.2009 when the
first marriage was solemnized in 2008. These
circumstances would strongly suggest that the
appellant/husband was not interested in the first
marriage. Facts and evidence on record would suggest
that husband married the second wife in 2008 or early
2009. That being the fact, even if the first wife had
stayed away from the husband, same cannot be treated
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as desertion or cruelty. The wife who was minor cannot
be expected to live with her husband who contracted
second marriage against the wish and will of his first
wife.
20. The contention of the learned counsel for the
appellant/husband that the contents in the statement of
objection and contents of the complaint lodged by the
wife which is marked at Ex.P.4 would contradict her
stand relating to cohabitation for six months with the
husband does not come to the aid of the
appellant/husband as the contents of the said complaint
no way would prove the case of cruelty and desertion.
This Court is of the view that neither there is plea nor
corroborative evidence to hold that wife treated the
husband cruelly or deserted the husband. If wife has
protested the act of the husband contracting the second
marriage or stayed away from him because of second
marriage such act on the part of the wife cannot be
treated as act of cruelty or desertion. Merely because the
respondent/wife happened to be the daughter of the
brother of her mother-in-law, same cannot be a ground
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to disbelieve the evidence of RW2 who has supported the
case of the respondent/wife and led evidence against the
petitioner before the Family court. We find no reasons to
interfere with the finding of the Family Court which held
that the alleged cruelty and desertion are not proved.
21. For the aforementioned reasons, this Court is
of the view that the impugned judgment and decree
passed by the trial Court granting decree for divorce
holding that marriage is void is unsustainable. At the
same time, the finding of the trial Court that no ground is
made out to grant the decree for divorce on the ground
of cruelty and desertion is required to be upheld.
Hence, the following:
ORDER
(i) MFA No.6709/2016 is dismissed.
(ii) MFA No.155/2016 is allowed.
(iii) The judgment and decree dated 07.12.2015
passed by the Principal Senior Civil Judge, CJM,
Chitradurga in M.C. No.111/2013 to the extent of
holding that marriage is void in contravention of Section
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5 of the Hindu Marriage Act, 1955 are set aside.
Consequently, the petition in M.C.111/2013 is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
brn
