'rS ••m "M^ sn •':^; '' '^.' ' |tA%l^|||;^lt||||^|||i||i^ llllllll^ll^ll^^l^^ll^ 'M^ ;g9|[|[||ti»|;;'^t>l i|%11^ 'i^^<^it^8ijt!^^s^lti^l^ff^^ l||js|j.^^|||gi||j||||iii2iiii|||^ ^^^•^ [:!1^^ ;--NE%^SW'%S,ais>Sii®B ws» ^lllil^liillii^B%^i^lliilill^i^^ ISiill^ftill^lti^iii^SflliKliil^ '';^'^S~\^.:^M 'M^m ^m .tl;'.s.h:HHiJ{i ^i/'.^HJijll ;It^t;lllll 'l^.ii :1 ^li.1^:11 ^ HIGH^COURT OF CHHATTISGARH : BILASPUR F.A. (M) No. 123 of 2010 Appellant Smt. Madhu Soni Versus Respondent Munnalal Soni APPEAL UNDERSECTIONJ^ [1} OF THE FAMILY COURTS ACT,1984 DB: Hon'ble Shri Justice I. M. Quddusi 8& Hon'ble Shri Justice Prashant Kumar Mishra, JJ Shri H. B. Aganval, Senior Advocate with Ms Meera Jayaswal, Advocate for the appellant. Shri Punit Ruperal, Advocate for the respondent. O R D ER (Orall ( Passed on this 7th day ofJanuary, 2011 ) Per I. M. Quddusi J. 1. The instant appeal arises from the Judgment dated 19.8.2010, passed by the Second Additional Principal Judge, Family Court, Durg in Civil Suit No. 68-A/10, whereby the petition filed by the respondent/husband under Section 12 of the Hindu Marriage Act, 1955, seeking a decree of divorce from the appellant/wife, has been allowed and the marriage performed on 8.5.2002 between the parties has been declared as nullity. 2. Brief facts of the case, in nutshell, are that the marriage of the appellant and the respondent was solemnized on 8.5.2002 according t6 the Hindu custom. The case of the respondent/ husband is that from the first night of their marriage the appellant/wife did not allow him to have physical relations with her. Her attitude towards the respondent/husband was not proper and she seem to be a women ofunsound mind. The appellant/wife stayed only one or two days in the house of the respondent/ \ husband for four five times after marriage and on someoccasion she assaulted the respondent/husband. Being frustrated with the atfitude and conduct of the appellant/wife, the respondent/husband lodged a complaint in the Mahila Thana. Being fed up with the attitude and conduct of the appellant/wife as well as her parents, the respondent/husband servred a notice through his Advocate on 1.4.2005 and subsequently filed a petition under Section 12 of the Hindu Marriage Act, 1955, seeking a decree ofdivorce. The case of the appellant/wife is that after marriage she had physical relations with the respondent/husband and she fully cooperated to her husband in this regard. After marriage sometimes the respondent/husband kept her happily butjust after few days the nature and conduct of the respondent/husband got changed towards the appellant/wife. He started abusing even on sniall things and started pressurizing the appellant/wife to bring money from her parents and thereafter ousted her from the matrimonial house. Since then the appellant/wife is living in her parental house. We have heard learned counsel appearing for the parties and perused the records and the findings recorded by the Judge, Family Court. The grounds taken in the petition under Section 12 of the Act, 1955 before learned Judge, Family Court are covered under Section 12(l)(b) and (c) ofthe Act, 1955, which reads as under : "12. Voidable marriages. ~ (1) Any marriage solemnized, whether before or after the commencement of this Act, shall •^" ..^"^ •^^^^ ^. 7. be voidable and may be annulled by a decree of nullity on any ofthe following grounds, namely:- (a) xxx xxx xxx (b) that the marriage is in contravention of the condition specified in clause (ii) of 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, 1979 (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) xxx xxx xxx (2) xxx xxx xxxw In the written statement the plea of limitation was taken but no issue was framed regarding whether the suit/petition was within limitation or not. Since the question of limitation is a mixed question of facts and law, therefore, we have no other option except to remit back the matter to the learned Family Court to frame issue and proceed further in accordance with law. In view of the above, we allow this appeal in part, set aside the impugned judgment dated 19.8.2010, passed by the Second Additional Principal Judge, Family Court, Durg in Civil Suit No. 68-A/10 and remit back the matter to the Family Court for decision afresh. Needless to mention that the parties shall be allowed to amend pleadings, adduce further evidence and to file documents, if any. Thereafter, proper issues will be framed for determination and then the matter will be proceeded with in •^^:::-^^ \. i!': r'^.^. '' |li g vagi^, j/ ..--y "^y^.y '^^^^.^' accordance with law by the learned Family Court. No order as to costs. 8. It will also be open to the parties to move application for enhancement ofinterim maintenance or for litigation expenses etc. 9. The parties shall appear before the learned Judge, Family Court, Durg on 10th of Februaiy, 2011. 10. The Registry is directed to send back the lower Court records, forthwith. Sd/- I.M.Quddusi Judge Sd//- Prashant Kumar Mishra Judge Thakur