R. Narayana Pisharadi, J.:— The appellant is the wife and the respondent is the husband.
2. The appellant filed O.P. No. 1150/2016 in the Family Court for granting a decree of declaration that the marriage solemnised between her and the respondent on 16.10.2015 under the Special Marriage Act, 1954 (hereinafter referred to as ‘the Act’) is null and void. The plea of the appellant was that she and the respondent were friends and that the respondent requested her to be a witness for the registration of the marriage of one of his friends and he took her to the Marriage Registrar's office and got her signature in the marriage register making a misrepresentation that she was only witnessing registration of the marriage of his friend.
3. The respondent remained ex parte in the proceedings before the lower court. The appellant was examined as PW1. The Family Court found that the evidence adduced by the appellant did not prove that any fraud was played on her and that there is no sufficient ground to declare the marriage as null and void. Accordingly, the Family Court dismissed the original petition filed by her. Aggrieved by the judgment passed by the Family Court, the wife has come up in appeal.
4. Notice in the appeal was served on the respondent. He has not chosen to make appearance in the appeal. We have heard learned counsel for the appellant.
5. Section 25(iii) of the Act provides that any marriage solemnised under the Act shall be voidable and may be annulled by a decree of nullity, if the consent of either party to the marriage was obtained by coercion or fraud as defined in the Indian Contract Act, 1872.
6. The relevant portion of the impugned judgment of the Family Court reads as follows:
“5. It is an admitted fact that marriage was solemnised in accordance with the Special Marriage Act. Petitioner wants to declare the marriage as null void due to misrepresentation. Case of the petitioner is that the respondent called the petitioner as a witness for the solemnization of marriage of one of his friend's. But the details of those friends are not stated in the petition. None of the witness who allegedly witnessed the solemnization of marriage as per the Special Marriage Act was examined by the petitioner to prove misrepresentation or fraud. A marriage registered by the Sub Registrar in accordance with the Special Marriage Act by following all the procedures prescribed under the Act. The Sub Registrar is discharging his official duty as a public servant. Once it is shown that marriage was solemnized in accordance with the provisions of Special Marriage Act by a Sub Registrar, it is to be presumed that he had solemnized the marriage following all the formalities prescribed by law. Petitioner has no case otherwise. There is no evidence to show that fraud was played on the Sub Registrar's office in registering the marriage. A mere statement of the petitioner that she was invited for witnessing the marriage of somebody whose details are not stated either in the pleadings or in evidence is not sufficient to hold that fraud or misrepresentation was played on her by the Sub Registrar. Therefore, the case of the petitioner seems to be unbelievable and the evidence is not sufficient to hold that marriage was solemnized by misrepresentation or fraud. Hence I am not inclined to declare the marriage as null and void as prayed for.”
7. We see no illegality or infirmity in the impugned judgment. The lower court has rightly held that the appellant did not adduce sufficient evidence to prove that fraud was played on her. There was neither plea nor proof of the fraud played on the appellant. None of the persons who had witnessed the solemnisation of marriage was examined by the appellant. Not even a copy of the certificate of marriage was tendered in evidence. It is not even known whether marriage was actually solemnised under Section 13 of the Act or it was only registered under Section 15 of the Act.
8. Learned counsel for the appellant invited the attention of this Court to the decision of the Hon'ble Supreme Court in Jolly Das (Smt) Alias Moulick v. Tapan Ranjan Das .: 1995 KHC 164 (SC) and contended that fraud played on any of the parties to the marriage would vitiate the marriage and it is a sufficient ground to declare the marriage as null and void under Section 25(iii) of the Act. There can be no quarrel with this proposition. But, the fact remains that there is neither plea nor proof of any fraud played on the appellant in the instant case.
9. Order VI Rule 4 of the Code of Civil Procedure, 1908 states that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars (with dates and items if necessary) shall be stated in the pleading. There is nothing to show that the appellant had complied with this provision and stated in the original petition particulars of the fraud played on her.
10. Confronted with the aforesaid situation, learned counsel for the appellant prayed that the case may be remanded to the lower court so as to enable the appellant to take appropriate steps for amendment of the original petition and to adduce sufficient evidence in the case. The respondent has remained ex parte before this Court and also in the lower court. The appellant is now aged only 24 years. The issue involved is a matter affecting her future life. Considering these circumstances, we are inclined to accept the prayer made by the learned counsel for the appellant for a remand of the case for fresh consideration by the trial court.
11. Consequently, we allow the appeal and set aside the judgment and decree passed in O.P. No. 1150/2016 on the file of the Family Court, Thiruvananthapuram and remand the case to that court for fresh disposal. The appellant shall appear before that court on 21.11.2018. The lower court shall proceed with the case after issuing fresh notice/summons to the respondent. The appellant is at liberty to take appropriate steps in the trial court for amendment of pleadings and adducing additional/fresh evidence.