Rajasthan High Court - Jodhpur
Aabudi Devi vs Rajuram Dewasi ... on 12 October, 2023
Bench: Arun Bhansali, Rajendra Prakash Soni
[2023:RJ-JD:34730-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 574/2023
Aabudi Devi D/o Adopted Daughter Of Shri Amana Ram, Aged
About 30 Years, Residing Of Village Medas Tehsil Riya Badi,
District Nagaur.
----Appellant
Versus
Rajuram Dewasi S/o Shri Arjunram, Aged About 35 Years,
Resident Of Village Atpada, Tehsil Sojat, District Pali.
----Respondent
For Appellant(s) : Mr. Vishal Sharma.
For Respondent(s) :
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
12/10/2023
1. This appeal is directed against the judgment and decree
dated 23.12.2022 passed by Family Court, Merta, whereby, the
petition filed by the appellant under Section 13 of the Hindu
Marriage Act, 1955 ('the Act of 1955'), seeking dissolution of
marriage has been dismissed as barred by limitation.
2. The appellant filed proceedings under Section 13 of the Act
of 1955 inter alia with the submissions that she was married of
while she was only 3 years of age and after making several
submissions, relief was claimed that on account of the marriage
having been solemnized while she was minor i.e. 3 years of age,
the same may be dissolved.
3. A written statement was filed disputing the averments made
in the petition and claiming that the appellant was major and they
have two children namely Sharda and Ravindra.
4. After the evidence was led by the parties, the Family Court
framed only one issue pertaining to the fact that marriage was
[2023:RJ-JD:34730-DB] (2 of 4) [CMA-574/2023]
solemnized at the age of 3 years and whether the appellant was
entitled to seek dissolution of marriage.
5. While deciding the said issue the, the Family Court referred
to the provisions of Child Marriage Restraint Act, 2006 ('the Act of
2006) and with reference to Section 3 of the said Act and its sub-
Section (3), came to the conclusion that the suit seeking a
declaration of the marriage being void could be filed within two
years from the date of attaining the age of majority and as the
suit was filed at the age of 24 years, the same was barred by
limitation and consequently, dismissed the petition filed by the
appellant.
6. Learned counsel for the appellant made submissions that the
Family Court fell in error in dismissing the suit based on the
provisions of the Act of 2006, inasmuch as, the provisions of
Section 13(2)(iv) of the Act of 1955, is independent of the Child
Marriage Restraint Act, which provides for a ground seeking
dissolution of marriage and, therefore, the judgment impugned
deserves to be set aside.
7. In the alternate, submissions were made that as the
appellant had made certain averments in the petition touching
other grounds under Section 13(1) of the Act of 1955, however, as
neither any issue was framed nor any evidence was led, the
petitioner may be permitted to file fresh proceedings in
accordance with law.
8. We have considered the submissions made by learned
counsel for the appellant and have perused the material available
on record.
[2023:RJ-JD:34730-DB] (3 of 4) [CMA-574/2023]
9. It is not in dispute that the Family Court with reference to
the Child Marriage Restraint Act, 2006, has dismissed the
proceedings as barred by limitation without referring to the
provisions of Section 13(2)(iv) of the Act of 1955. The provisions
of Section 13(2)(iv) of the Act of 1955, read as under:-
"13. Divorce.-
(1) ......
(2) A wife may also present a petition for the
dissolution of her marriage by a decree of divorce on
the ground,-
(i) ......
(ii) ......
(iii) ......
(iv) That her marriage (whether consummated or
not) was solemnised before she attained the age of
fifteen years and she has repudiated the marriage after
attaining that age but before attaining the age of
eighteen years."
10. A perusal of the above provision reveals that a wife can
present a petition for the dissolution of her marriage on the
ground that her marriage was solemnized before she attained the
age of 15 years and she has repudiated the marriage after
attaining that age but before attaining the age of 18 years.
11. Once the repudiation takes place within the said age of 15 to
18 years and the legal disability to file suit comes to an end at the
age of 18 years, the suit / proceedings even under provisions of
Section 13(2)(iv) of the Act has to filed within 3 years in view of
provisions of Article 137 of the Limitation Act, 1963.
12. The present proceedings have been initiated by the appellant
after attaining the age of 24 years and as such, the said
proceedings even under the Act of 1955 were barred by limitation.
[2023:RJ-JD:34730-DB] (4 of 4) [CMA-574/2023]
13. In that view of the matter, though the Family Court
misguided itself by referring to the provisions of Child Marriage
Restraint Act, even under the provisions of Section 13(2)(iv) of
the Act of 1955, the proceedings are barred and as such, the
appellant is not entitled to any relief.
14. So far as the plea raised regarding raising other grounds are
concerned, apparently, the said averments made in the petition
were only for the purpose of supporting the plea of seeking
dissolution of marriage on account of the same having been
solemnized when the appellant was aged 3 years only, as neither
any issue was framed nor any relief with reference to the said
averments was sought.
15. In that view of the matter, merely raising of the issues for
substantiating the plea raised based on the provisions of Section
13(2)(iv) of the Act of 1955 would not debar the appellant from
filing proceedings in accordance with law / under Section 13(1) of
the Act of 1955.
16. In view of the above discussion and observations, there is no
substance in the appeal. The same is, therefore, dismissed.
(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J
7-Sumit/-
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