AMEYA S/O ANANT PATIL, v. SUJATA D/O ULLAS RAIKAR,

ORDER DATED 02.05.2015, PASSED IN O.S. NO.33/2012 ON THE FILE OF THE JUDGE, FAMILY COURT, BELAGAVI, DISMISSING THE SUIT FILED FOR DECLARATION AND MANDATORY INJUNCTION. THIS MFA COMING ON FOR ADMISSION THIS DAY, H.G. RAMESH J., DELIVERED THE FOLLOWING: MFA NO.101785/2015 -: 2 :- H.G.RAMESH, J. (Oral):

1. This first appeal by the sole plaintiff is directed against the judgment and decree dated May 2, 2015 passed by the Family Court, Belagavi, dismissing the suit of the appellant in O.S.No.33/2012. The suit was filed by the appellant for a declaration that his marriage with the respondent herein that was solemnised on 28.01.2012 is illegal, null and void and for grant of mandatory injunction directing the Registrar of Marriages, Belagavi to cancel the registration of marriage dated 28.01.2012.

2. We have heard learned counsel for the appellant regarding admission of the appeal and perused the impugned judgment.

3. Two contentions were urged by the learned counsel appearing for the appellant, namely, that there was no marriage between the appellant and the respondent, and that the appellant had not completed 21 years of age as on the date of marriage and therefore, the marriage is void under Section 11 read with Section 5 of the Hindu Marriage Act, 1955 (the Act). MFA NO.101785/2015 -: 3 :-

4. The pleadings of the parties are stated in detail by the Family Court. Hence, it is unnecessary to again reiterate the same in detail here. Suffice to state that the case of the appellant is that there was no marriage between him and the respondent and registration of the marriage was due to fraud played by the respondent. He never led a marital life and the marriage was not consummated. The respondent-Smt. Sujata, who was the defendant before the Family Court, resisted the suit by filing written statement contending that she was married to the appellant and the marriage was solemnised in Maruti Mangal Karyalaya, Chavat Galli, Belagavi on 28.01.2012 and the marriage was also registered in the office of the Sub-Registrar, Belagavi on 28.01.2012 in the presence of witnesses. She has further stated that she led a marital life with the appellant and the marriage was also consummated.

5. The Family Court, on the pleadings of the parties, formulated the following issues for its consideration:

1. Whether the plaintiff proves that the marriage of plaintiff and defendant purported to have been taken place on 28.01.2012 is illegal, null and void?

2. Whether the plaintiff is entitled for the declaration as sought for? MFA NO.101785/2015 -: 4 :-

3. Whether the plaintiff is entitled for mandatory injunction as sought for?

4. What decree or order? The appellant-plaintiff, in support of his case, examined himself as P.W.1 and one more witness as P.W.2 and produced four documents in evidence as Exs.P.1 to P.4 and closed his side. Respondent-defendant got herself examined as D.W.1 and produced twelve documents in evidence as Exs.D.1 to D.12 and closed her side.

6. The Family Court, on a detailed appreciation of the evidence on record, answered the aforesaid issues in the negative and held that both the appellant and the respondent led marital life as husband and wife for a period of seven months in a rented house and the marriage was consummated. The appellant, thereafter, started harassing and torturing the respondent and voluntarily left the respondent and did not join her company. It is relevant to refer to the following reasoning of the Family Court in dismissing the suit of the appellant:

17. .. In the instant suit the alleged marriage took place on 28.01.2012. Suit has been filed on 1.10.2012, so within a period of one year as contemplated U/Sec.12 of Hindu Marriage Act, suit filed by the plaintiff and sought for cancellation of MFA NO.101785/2015 -: 5 :- registered marriage as null and void. He pleaded that the defendant played fraud and misrepresentation for registering the marriage with him. But the said contention will falsify in his own admission in the course of his cross examination. They (were) lived as husband and wife in (a) several rented residential houses and thereafter he left the defendant and did not return. PW.1 father of plaintiff admitted that he is ready to take back the defendant to his house but it is left to the plaintiff to lead a marital life with her. Said evidence on record proves that there is no coercion, fraud, misrepresentation alleged by the plaintiff to marry with the defendant. He and his father, defendant and her brother, their friends were present before the registrar office and got it registered their marriage on 28.1.2012, at that time he was attaining the majority as per Sec.5 of Hindu Marriage Act. He accepted the defendant as his wife therefore he took the defendant to rented residential house and led a marital life as husband and wife to the tune of 7 months in a rented place and the marriage was consummated thereafter he started harassing and torturing her and voluntarily left the defendant and did not join the company of the defendant. Thus the plaintiff has failed to prove that his marriage with the defendant was solemnized by playing fraud and misrepresentation. Therefore, plaintiff is not entitled any relief much less relief as sought for. Accordingly, I answered issues No.1 to 3 in the negative.

7. The contention of the learned counsel that the marriage is void as it contravened Section 5(iii) of the Act is without substance. As could be seen from Section 11 of the Act, a marriage is null and void only when it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the Act and not the condition in clause (iii) of Section 5 of the Act. The case of the respondent is that the MFA NO.101785/2015 -: 6 :- appellant completed 21 years of age as on the date of the marriage. Be that as it may. The contention that the appellant had not completed 21 years of age as on the date of marriage, assuming it to be true, is not a ground to declare the marriage as null and void as it is not one of the conditions stated under Section 11 of the Act to declare the marriage as null and void. In this context, it is relevant to refer to Sections 5 and 11 of the Act, which read as follows:

Sec. 5. Conditions for a Hindu marriage.-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party- (a) is incapable of giving a 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;

(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; MFA NO.101785/2015 -: 7 :-

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

Sec.11. Void marriages.Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

8. As demonstrated above, the contention of the learned counsel that the marriage is void under Section 11 of the Act is devoid of merit. In our opinion, the finding of the Family Court that there was valid marriage between the appellant and the respondent is based on a proper consideration of the evidence on record. We find no error in the appreciation of the evidence made by the Family Court. No ground to admit the appeal. The appeal is accordingly dismissed. Appeal dismissed. Sd/- JUDGE Sd/- JUDGE