Reet @ Seema Kumari vs Chandra Bhushan Kumar
2023 Latest Caselaw 3703 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Miscellaneous Appeal No.287 of 2022
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Reet @ Seema Kumari Daughter of Rajendra Rai, Resident of Gandhi Ashram (Behind Departmental Shop), Hazipur, P.S.-Hazipur Town, District- Vaishali.

... ... Appellant/s Versus Chandra Bhushan Kumar son of Late Ganesh Rai, Resident of Mohanpur, P.S.-Bidupur, District-Vaishali.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Nishant Kumar For the Respondent/s : Mr. Abhay Shankar Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE JITENDRA KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

Date : 11-08-2023

The present appeal has been preferred by the

Appellant against the impugned Judgment dated 20.06.2022

passed by the Ld. Principal Judge, Family Court, Vaishali at

Hajipur in Matrimonial Case No. 407 of 2018, whereby the

Family Court has held, "The Petitioner has been able to prove

the fact that his marriage was without consent. His marriage Patna High Court MA No.287 of 2022 dt.11-08-2023

with the O.P., namely, Seema Kumari, is declared as null and

void. The present application is Allowed".

2. It is further pertinent to mention that the petition

filed by the Petitioner before Family Court was filed under

Section 11 and 12 of the Hindu Marriage Act and in the petition

the Petitioner has pleaded that the he was abducted by the father

of the Defendant/Appellant and other persons on 02.02.2018

and he was subjected to beating resulting into his becoming

unconscious and when he regained consciousness, he was

informed by parents of the Defendant/Appellant that he has got

married with Seema Kumari, who is the Appellant herein.

3. The Petitioner has also lodged Criminal

Complaint for being abducted and forcibly married in the Court

of Ld. C.J.M, Hajipur. He has claimed that the marriage is not

valid under Section 5 of the Hindu Marriage Act and he has

prayed as follows :

" क) उपरोकत परररससत मे आवे दक और रवपकी के बीच रदनांक

02.02.2018 के रोज जो शादी हुई, उसे (शूनय रववाह) भं ग रकया जाए

तसा आवे दक के पक मे रडक् री रदया जाये .

ख) उकत मु कदमे मे जो खचर होगा, बयाज के सास उसे रवपकी से

रदलाया जाये . "

4. On notice, Appellant/Defendant appeared before Patna High Court MA No.287 of 2022 dt.11-08-2023

the Family Court and filed her written Statement contesting the

suit pleading that the petition has been filed on wrong facts and

it is not maintainable as framed. It is also claimed that the

marriage was solemnized as per Hindu Rites and Customs with

consent of the Petitioner.

5. On the basis of the pleadings of the parties,

following issues were framed :

i) Is the suit, as framed, maintainable?

ii) Has the plaintiff got valid cause of action and

right to sue?

iii) Whether the marriage held on 02.02.2018 in

between the petitioner and the O.P. was performed forcefully

and without consent of the Petitioner?

iv) Whether the marriage held on 02.02.2018 in

between the petitioner and O.P. is liable to be declared void?

6. Heard Ld. counsel for both the parties.

7. Ld. counsel for the Appellant/Defendant submits

that the Impugned Judgment is not sustainable in the eye of law

whereas, Ld. counsel for the Respondent/Plaintiff submits that

there is no infirmity in the Impugned Judgment. However, after

perusal of the divorce petition, written statement, issues framed

and the order passed by the Family Court, it transpires that the Patna High Court MA No.287 of 2022 dt.11-08-2023

case of the Respondent/Appellant before the Family Court is

that the claimed marriage was not validly solemnized as per

Hindu Rites and Customs, and, as such, there is no marriage in

the eye of law between the Respondent/Plaintiff and

Appellant/Defendant. The alternative case of the Petitioner is

that the marriage, if any, is liable to be annulled under Section

12(1)(c) of the Hindu Marriage Act, because consent of the

Respondent/Plaintiff was vitiated on account of consent having

been taken under force.

8. However, as per the pleadings of the parties, no

issue has been framed whether the marriage between the parties

has been validly solemnized or not. No specific issue has been

framed under which provisions of the Hindu Marriage Act, the

marriage, if any, is liable to be annulled or declared void, nor is

any specific finding on such issue. Even the order which has

been passed by the Family Court is not legally consistent and

sustainable. Marriage can be declared null and void under

Section 11 but the marriage without consent is no ground under

Section 11 of the Act for declaring marriage as null and void. It

can be annulled under Section 12(1)(c) of the Hindu Marriage

Act, if the consent of the Petitioner has been obtained under

force.

Patna High Court MA No.287 of 2022 dt.11-08-2023

9. The whole mess has been created not only on

account of lack of clarity of law on the part of the presiding

officer of the Family Court, but it has also been created on

account of immensely poor drafting of the petition filed by the

petitioner before the Family Court. As per the petition,

Petitioner is not clear under which section of the Hindu

Marriage Act he is entitled to get relief in the given facts and

circumstances, nor the prayer part has been properly framed.

This poor drafting and lack of knowledge on the part of the

presiding officer of the Family Court has created complete mess

and chaos in the trial.

10. Needless to say that the Impugned Judgment is

not sustainable and this Court has no option but to set aside the

Impugned Judgment and remand the matter to the Family Court

to conduct a fresh trial.

11. Hence, the Impugned Judgment is set aside and

the matter is remanded to the Family Court concerned to

conduct a fresh trial and conclude the same at the earliest and in

any case, not beyond six months. If required, trial may be

conducted on day to day basis because there is already delay in

the matter and if there is any further delay, whole purpose

behind litigation would get frustrated. If the parties pray for Patna High Court MA No.287 of 2022 dt.11-08-2023

amendment, either of the petition or written statement, they

should be allowed without changing the nature of the case

before framing of issues and conducting trial.

12. The Appeal is disposed of, accordingly. Both

the parties will bear their own costs.

13. Registrar General is directed to circulate a copy

of this Judgment amongst all the Presiding Officers of the

Family Courts.

(P. B. Bajanthri, J)

(Jitendra Kumar, J) chandan/-

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