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Sukhram Bhagwan Mali v. Mishri Bai Sukhram Mali .
Factual and Procedural Background
The appellant-husband appealed under Section 28 of the Hindu Marriage Act, 1955, against dismissal of his petition seeking restitution of conjugal rights. He alleged that the respondent-wife had withdrawn from his society without reasonable cause. The respondent contested the petition, alleging ill-treatment, beatings, inadequate provision of food and clothing, and improper conduct by her father-in-law. The trial court accepted the appellant’s evidence regarding withdrawal but dismissed the petition because the respondent had been a child when the marriage took place, relying on Ghesalal v. Tulsibai. [1][2]
Legal Issues Presented
- Whether a decree for restitution of conjugal rights could be granted where the marriage was solemnized when the respondent was below the statutory age. [2][3]
- Whether the respondent had withdrawn from the appellant’s society without reasonable cause or excuse. [2][3]
Arguments of the Parties
Appellant's Arguments
- The respondent had withdrawn from his society without reasonable cause or excuse despite his repeated attempts to bring her back. [2]
Respondent's Arguments
- The marriage took place when she was approximately 10 or 11 years old, and she had only intermittently lived with the appellant thereafter. [2]
- She withdrew because her father-in-law allegedly behaved improperly toward her, while the appellant allegedly ill-treated and beat her and failed to provide proper food and clothing. [2]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ghesalal v. Tulsibai, 1977 Jab LJ (SN) 52 | Restitution of conjugal rights was refused where the parties were children at the time of marriage, on the reasoning that granting relief would recognize child marriages intended to be prohibited by legislation. | The trial court relied on this decision, but the appellate court distinguished its effect in light of the principle stated in Gindan v. Barelal. [2][3] |
| Gindan v. Barelal, 1976 Jab LJ 97 | A marriage solemnized in contravention of the age requirement in Section 5(iii) of the Hindu Marriage Act is neither void ab initio nor voidable; the statutory consequence is punishment under Section 18. | The appellate court relied on this principle to hold that the respondent’s marriage was not invalid and that the trial court was unjustified in refusing restitution solely because of her age at marriage. [3][4][5] |
Court's Reasoning and Analysis
The appellate court found no basis to disturb the trial court’s factual conclusion that the respondent had withdrawn from the appellant’s society without reasonable cause or excuse. [3]
It then examined the legal effect of the respondent’s age at the time of marriage. The court noted that, under Gindan v. Barelal, breach of the age requirement in Section 5(iii) did not make the marriage void or voidable; the consequence provided by the Act was penal liability under Section 18. [4][5]
The court further observed that, after attaining majority, the respondent had continued to visit and live with the appellant. This conduct indicated that she had validated the marriage and condoned any defect arising from her age at the time of marriage. Consequently, the trial court was not justified in refusing a decree for restitution of conjugal rights. [5]
Holding and Implications
APPEAL ALLOWED. The trial court’s judgment and decree were set aside, and a decree for restitution of conjugal rights was granted in favour of the appellant. There was no order as to costs. [6]
The direct effect was to grant the appellant the requested matrimonial relief despite the respondent’s minority at the time of marriage. The opinion does not state broader implications or establish a new precedent.
1. The appellant-husband has preferred this appeal under Section 28 of the Hindu Marriage Act, 1955 against the dismissal of his petition for restitution of conjugal rights.
2. The appellant's case is that 3 years before filing of the petition he was married to the respondent according to Hindu rites. One year after the marriage there was Gona and thereafter the respondent stayed with him for 2 nights and has not returned back again. The appellant made 12/13 attempts to bring her back but she was avoiding on one pretext or another. The respondent has withdrawn from his society without any reasonable cause or excuse. The respondent in her written statement resisted the petition and denied the allegations made therein. According to her, they were married 9/10 years before when the respondent was only 10 to 11 years old. At that time, she stayed with the appellant in his house for 2 days and then returned to her parents' place. Three years thereafter there was Gona and she went and lived with the appellant for 4/5 days. Thereafter, she lived in the house of the appellant for 4/5 times staying for 10 to 15 days at a time, But her father-in-law i.e. the father of the appellant, had an evil eye over her and he attempted to take liberties with her. When she complained to the appellant about the behaviour of her father-in-law, the appellant started ill-treating her. He also used to beat her. This he was doing at the instance of his father. She was also not provided with proper food and clothes. As such, she had reasonable apprehension that it would not be safe for her to stay with the appellant any longer and, therefore, she has withdrawn from his company. The learned Additional District Judge accepted the evidence led by the appellant and came to the conclusion that the respondent has withdrawn from his society without any reasonable cause or excuse. The trial Judge disbelieved the respondent about the allegations made by her against her father-in-law and also disbelieved her story about ill-treatment and beatings. In spite of these findings, the trial Judge dismissed the petition on the ground that since the respondent was only 10 to 12 years when she was married, no decree for restitution of conjugal rights could be granted, by relying on a decision of this Court in Ghesalal v. Tulsibai, 1977 Jab LJ (SN) 52.
3. After hearing the parties, we are of the opinion that this appeal has to be allowed and the decree of the trial Court cannot be sustained. Nothing has been shown to us to take contrary view of the finding reached by the trial Judge that the respondent has withdrawn from the society of the appellant without reasonable cause or excuse. This Court in Ghesalal v. Tulsibai (supra) refused to grant relief of restitution of conjugal rights on the ground that at the time of the marriage the husband was 7 years and wife was 4 years old and granting of relief would result in giving judicial recognition to the child marriages which are intended to be prohibited by the Legislature. In that case it was held that the marriage was solemnized in contravention of the provisions of Section 5(iii) of the Act and the wife being a child, it could not be held that she had withdrawn from the society of the petitioner without any reasonable cause. Full Judgment of this case is not available here but the Division Bench relied on earlier decision of this Court in Gindan v. Barelal, 1976 Jab LJ 97 in which another Division Bench has held as under:--
"A marriage solemnized in contravention of the age mentioned in Clause (iii) of 3. 5 of the Hindu Marriage Act can neither be declared ab initio void nor voidable. The consequences, if any, which flow from that contravention are given in Section 18 and that is that a person who procures a marriage of himself or herself in such contravention shall be punishable with imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both."
As per this decision, such a marriage in contravention of Section 5(iii) of the Act, can neither be declared ab initio void nor voidable. A person contravening is liable to be punished under Section 18 of the Act. Here from the pleadings and evidence of the respondent, it appears that after she became major she has been coming and living with the appellant, thereby showing that she has validated the marriage and condoned the defect, if there was any. Therefore, the trial Judge was not justified in refusing to grant a decree for restitution of conjugal rights.
4. The appeal is allowed, the judgment and decree of the trial Court are set aside and instead a decree for restitution of conjugal rights is passed in favour of the appellant. In the circumstances of the case, there shall be no order as to costs.
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