IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 91 of 2009 Vikesh Sharma .. Appellant Vs. Shivani ..Respondent Mr. Parikshit Saini, learned counsel for the appellant. Mr. Deepak Sharma, learned counsel for the respondent. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal, under section 19 of Family Court Act, 1984, has been preferred by Vikesh Sharma, the husband, against the judgment and order dated 25-11-2008, passed by Judge, Family Court, Haridwar, in Case No. 262/2004, Shivani vs. Vikesh Sharma, under section 12 of the Hindu Marriage Act, thereby declaring the marriage amongst the appellant and the respondent null and void. 2- Brief facts of the case are that respondent/petitioner Shivani filed a suit before Judge, Family Court, Haridwar for declaring her marriage with Vikesh Sharma as null and void, with the allegations on 17.8.2002 she had gone out of her house to take tuition. When she did not return till late night, Vikesh Sharma came to the house of her father and told that his mother is calling Shivani. When father of Shivani went in the house of Vikesh Sharma he did not see the father and mother of Vikesh Sharma there. Therefore, on 18.8.2002, father of Shivani lodged a report at Police Station Jwalapur against Vikesh Sharma and his mother Smt. Radha Rani and a case crime No. 334/2002, U/Ss 363, 366-A I.P.C. was 2 registered against them. After abducting Shivani, Vikesh Sharma and his mother absconded from there house and their whereabouts were not known for a month. Knowing that case has been registered against them, Vikesh Sharma obtained order dated 21-9-2002 from High Court, Nainital for arrest stay. The further allegation of Shivani is that after giving threats to her, she was presented by Vikesh Sharma before the High Court at Nainital and the High Court looking the apprehensive condition of Shivani gave her in the custody of police and also informed her father. After conducting her medical examination and recording her statement U/S 164 Cr.P.C. she was handed over to her father. According to the petitioner Vikesh Sharma got registered his marriage with her after playing fraud and giving threats to her life. The further allegation of the petitioner/respondent is that her father came to know about the fraud played with her, for the first time on 25-9-2002, when she was given in his custody. The charge sheet was submitted against Vikesh Kumar and others on 15.1.2004. Hence prayer was made in the petition for annulling the marriage between the parties. 3- The appellant/respondent Vikesh Sharma contested the suit by filing his written statement, denying the averments made in the petition. He alleged that Shivani is his legally wedded wife. They got married on 7.2.2002 at Raiwala, Dehradun and at the time of marriage Shivani was 19 years of age as per the certificate issued by C.M.O. Dehradun. The aforesaid marriage was got registered in the office of Registrar of Hindu Marriage, at Dehradun on 21.8.2002. He also alleged that he never extended any threats to Shivani to marry with him. The appellant/ 3 respondent also took the plea that Family Judge, at Haridwar has got no jurisdiction to try the suit. 4- The petitioner also filed replication and alleged that Shivani is a minor and the marriage between the parties is void. She resides within the territorial jurisdiction of Family Court, Haridwar, hence the court has got the jurisdiction to try the suit. 5- On the basis of pleadings of parties, the Judge, Family Court framed as many as 11 issues in the suit. Thereafter parties led evidence in support of their contentions. 6- The learned Judge, Family Court, after having considered the entire material available on record and hearing learned counsel for the parties allowed the petition U/S 12 of the Hindu Marriage Act filed by petitioner/respondent Shivani and declared the alleged marriage dated 7.2.2002, which was registered before the Registrar of Marriage on 21.8.2002, as null and void, vide judgment and order dated 25.11.2008. 7- Feeling aggrieved by the aforesaid judgment and order, the husband Vikesh Sharma has preferred this appeal before this court, which has been placed before us for final adjudication. 8- Heard learned counsel for the parties and perused the record. 9- Learned counsel for the appellant has argued that in view of section 12 (2) of the Hindu Marriage Act, 1955, the petition filed by the petitioner for annulling the marriage could not be entertained 4 because the same was presented more than one year after the force had ceased to operate and the fraud whatever is alleged in the petition had been discovered. 10- Learned counsel for the respondent/petitioner has submitted the rival contention by submitting that the plea of limitation was not taken by the appellant before the court below specifically and the trial court for that reason could not record any specific finding thereon. He has submitted that had there been a plea raised sufficiently pertaining to the limitation by the appellant/respondent before the court below, then the trial court would have been serious in deciding this issue. He has thus submitted that the petition could not be dismissed only on this ground. 11- Before resolving the aforesaid controversy it would be relevant for us to read the relevant provision of Section 12 of the Hindu marriage Act, 1955, which runs as follows:- “12- Voidable marriages- (1) . . . . . . . . . . . . . . . . (2) Notwithstanding anything contained in sub- section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub- section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as 5 husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) ……………………” 12- In order to appreciate the arguments raised by parties again we shall have to read the relevant paragraphs of the petition filed by petitioner Shivani before the Judge, Family Court. In paragraph-2 of the petition it is stated that Shivani went from his house to take tuition on 17.8.2002, but she did not come back. Thereafter on 18.8.2002 father of Shivani lodged a report at Police Station Jwalapur against Vikesh Sharma and his mother Radha Rani U/Ss 363, 366-A I.P.C. Paragraph-4 further reveals that Vikesh Sharma and his mother obtained stay order from the High Court with regard to their arrest and also produced Shivani before the High Court. Shivani was also produced before C.J.M. Haridwar and after recording her statement U/S 164 Cr.P.C. as well as after conducting the medical examination she was handed over to her father on 25.9.2002. Again in paragraph-5 it is averred that Shivani told to her father that she was enticed away by accused Vikesh Sharma on 17.8.2002 and thereafter he took her to several places and committed rape upon her also. Thereafter on 21.8.2002 the marriage was registered before the Registrar of Marriage, Dehradun and then she was produced before Nainital High Court, from where she was given in the custody of the police and thereafter handed over to her father ultimately on 25.9.2002. Paragraph-7 of this petition further reveals that father of Shivani came to know about the fraud played pertaining to the marriage of Shivani for the first time on 25.9.2002. 6 13- The aforesaid averments made in the petition make the picture very clear that the fact pertaining to the fraud played against Shivani and her father had been discovered on 25-9-2002. The petition was filed before the court on 1.11.2004, which is admittedly after a period of more than one year. The language envisaged in the provision is that the petition shall not be entertained if it is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered. In the instant case the force had ceased to operate on 21-9- 2002 when Shivani was given in the custody of the police by the order of the High Court and the fraud had also been discovered to the father of Shivani for the first time on 25-9-2002. Therefore, presentation of the petition on 1.11.2004 in the aforesaid circumstances is clearly after a period of one year, which is not permissible in view of the provisions contained in Section 12 (2) (a) (i) of the Hindu Marriage Act, 1955. 14- Learned counsel for the respondent/petitioner has cited a decision of Hon’ble Apex Court before us, reported in SCR 2 (1965) 661, Chittoori Subbanna, Vs. Kudappa Subbanna and others, and has submitted on the basis of this judgment that the appellant had not raised sufficiently clear plea of limitation by stating relevant facts and making appropriate averments before the trial court and because of this reason the trial court although framed a formal issue but did not give finding thereon. 15- We have gone through the judgment cited before us and we are of the view that the judgment cited by learned counsel for petitioner does not apply to the facts and circumstances of the present case for the 7 simple reason that firstly the appellant took the plea before the trial court with regard to the maintainability of the petition U/S 12 of the Hindu Marriage Act and the trial court also framed the issue on this point as issue No.8 and then decided the same. The reasoning given by the trial court can not be said to be sustainable in the eye of law. The trial court has not considered this aspect that in view of the averment of the petition itself it is clear that the facts pertaining to fraud was discovered on 25.9.2002 but no reason has been given that what prevented the petitioner Shivani to present the petition U/S 12 of the Hindu Marriage Act within a period of one year. 16- Secondly, the question of limitation in the instant case does not arise for the simple reason that the Section 12(2)(a)(i) of Hindu Marriage Act, itself creates a bar for presenting the petition after a period of one year, in case where the force ceased to operate or the fraud had been discovered. 17- For the reasons stated above, we are of the view that the petitioner could not file the petition for annulling the marriage within the period of limitation as provided under Section 12 (2)(a)(i) of Hindu Marriage Act. The learned Judge, Family Court has not gone into this aspect in detail and has decided the matter in a cursory manner without looking into the relevant provision of law. We are, therefore, of the view that the judgment and order passed by the Judge, Family Court, is not liable to be sustained, as the petition filed by the petitioner for annulling the marriage after a period of one year was not maintainable. 8 18- Accordingly, the appeal is allowed. The impugned judgment and order dated 25-11-2008 passed by Judge, Family Court, Haridwar is set aside. Consequently, the petition filed U/S 12 of Hindu Marriage Act by the petitioner for annulling the marriage is dismissed on the ground of maintainability. The interim stay, if any, stands vacated. (Nirmal Yadav, J.) ( B.C. Kandpal, J.) Dated: April 23, 2010. ISB