For vs For
2022 Latest Caselaw 94 Tri

                         HIGH COURT OF TRIPURA
                               AGARTALA

                          Mat. App. No. 10 of 2020

For Appellant(s)                 : Mr. S Das, Adv.

For Respondent(s)                : Mr. R Chowdhury, Adv.

HON'BLE MR. JUSTICE S. TALAPATRA HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY Order 27.01.2022

Heard Mr. S Das, learned counsel appearing for the appellant as

well as Mr. R Chowdhury, learned counsel appearing for the respondents.

By means of this appeal, the judgment dated 13.12.2019

delivered in TS (Nullity) No.12/2018 by the Addl. Judge, Family Court,

Agartala, West Tripura has been challenged.

It has been contended that even though the appellant did receive

the notice from the Family Court, but she failed to participate in the

proceeding as she was not afforded with proper legal assistance. As a result,

the impugned judgment has been passed in the ex-parte proceeding. On the

first blush, we are really shocked to discover that the marriage has been

annulled by the Addl. Judge, Family Court on the ground that the respondent

(the appellant herein) is a patient of epilepsy. He has referred to Section 12 of

Hindu Marriage Act wherein the voidable marriage, which can be annulled by

the appropriate decree, has been defined.

Section 12 provides that any marriage solemnized, whether

before or after the commencement of the Hindu Marriage Act, 1955 shall be

voidable and may be annulled by a decree of nullity on any of the following

grounds:

(a) that the marriage has not been consummated owing to

impotence of the respondent; or

(b) that the marriage is in contravention of the condition

specified in clause (ii) of the Section 5; or

(c) that the consent of the petitioner, or where the consent of the

guardian in marriage of the petitioner was required under

Section 5 as it stood immediately before the commencement

of the Child Marriage Restraint (Amendment) Act, 1978 (2 of

1978) the consent of such guardian was obtained by force or

by fraud as to the nature of the ceremony or as to any

material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant

by some person other than the petitioner.

Some conditions have been laid down by Sub Section 2 of

Section 13, but for the present purpose those are not material.

Section 5 (ii) of Hindu Marriage Act, as referred under Section 12

of the Hindu Marriage Act, 1955 provides:

"5.(ii) at the time of marriage, neither party -

(a) is incapable of giving valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity."

Epilepsy does not come under unsoundness of mind. It is a

disease which is relating to a kind of neurotic states of a person. It does not

make any person incapable or unfit for marriage or procreation of children,

neither this disease incapacitates any person in order to give valid consent for

marriage.

We have already observed that Epilepsy is not insanity. Moreover,

there is no evidence from the medical expert to prove that the respondent

(the appellant herein) was ever suffering from Epilepsy. Based on the oral

evidence by the lay persons, the court should not have inferred that the

respondent in the suit (the appellant herein) was suffering from Epilepsy. As

such, we set aside that finding. As that was the sole basis of granting the

decree of divorce, the judgment dated 13.12.2019 stands quashed.

But what has happened after the decree, pursuant to the said

judgment, this court cannot be oblivious of. The petitioner, the respondent

herein, has contracted marriage and the appellant, the respondent in the suit,

has also acknowledged that fact. In such circumstances, on the basis of

consensus, this court would pass the following order.

The appeal stands allowed. As observed, the judgment and order

dated 13.12.2019 is set aside. However, as the respondent in the appeal, has

contracted the second marriage which is lawful as at the time of marriage no

prohibition was operating. Hence, the respondent in the appeal cannot subsist

in a marriage lawfully. Hence, the marital tie that subsisted between the

parties stands dissolved. They are now at liberty to lead their individual lives

at their preference. The respondent in the appeal has also agreed that he shall

pay Rs.4000/- per month to the appellant as maintenance, and such amount

shall be paid within 7th day of every English calendar month without fail.

Mr. Chowdhury, learned counsel appearing for the respondent

has submitted that within 15 (fifteen) days from today, a sum of Rs.50,000/-

will be paid by the respondent. The said amount, however, shall be finally

adjusted, but the respondent shall continue to pay the said maintenance

allowance to the appellant regularly so that the appellant does not suffer any

vagrancy.

In terms of the above, this appeal is disposed of.

The registry is directed to prepare the decree of divorce in terms

of the above. Thereafter, the LCR's be sent down.

As a measure of caution we declare that the second marriage that

the respondent has contracted shall not be affected by this judgment and

decree as that was contracted when there had been no legal disability.

That apart, all Stridhan as claimed by the appellant shall be

returned within seven days from today. It is made clear that the list, as

handed over by the appellant, shall strictly be followed by the respondent

while returning the materials. Learned counsel for the parties shall coordinate

between the parties regarding return and acceptance of stridhan.

            JUDGE                                                          JUDGE




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