IN THE HIGH COURT OF JUDICATURE AT PATNA ---------- Miscellaneous Appeal No.199 of 2010 ---------- Appeal against the judgment dated 25-1-2010 passed by the Principal Judge, Family Court,Vaishali at Hazipur in O.S.Case No. 57 of 2008. ---------- Amant Kumar, S/o Pramod Singh, R/O Chakaramdas, P.S. Vaishali, Dstt- Vaishali at Hazipur.....Appellant Versus Chitrakala Devi, D/o Bipodarshi Singh, R/o Village- Shitalpur, Babu Tola, P.S. Dariyapur, District- Saran.........................................................Respondent -------- 7 01-12-2011 Heard learned counsel for the appellant and learned counsel appearing for the sole respondent. The appellant preferred O.S. Case No. 57 of 2008 under section 11 and 12 of the Hindu Marriage Act, 1955 seeking a declaration that his marriage with opposite party/respondent be declared as a nullity because at the time of marriage he claimed to be a minor and that he was married without his consent. By the order under appeal dated 25th January, 2010, the case of the appellant was dismissed by the Principal Judge, Family Court, Vaishali at Hazipur. The case of the appellant, in brief, is that the respondent was initially married with late Manoj Kumar 2 Singh on 16-5-1989 who unfortunately died in the year 1990. The appellant was younger cousin brother of Manoj Kumar Singh and for some reasons he was forced into marriage in 1995 by the family members of the respondent when he happened to be ten years junior in age and was a minor as his date of birth is 11.6.1977. It was also alleged that he never gave his consent for the marriage and could not accept the respondent as his wife. It is the case of the appellant that the marriage was within the prohibited degree of relationship also and that it was never consummated and the appellant left for Sikkim soon-after the marriage to earn his livelihood and returned in the year 2005 and when a case under section 498-A of the I.P.C. was lodged against him and his family members, he filed the instant case. In spite of notice by the Principal judge, Family Court, the respondent did not appear and did not contest the suit. Although the witnesses examined on behalf of appellant supported his case, the court below held that on account of technicalities of Sub-clause ( i ), (iv) and (v) of Section 5 of the Hindu Marriage Act , the marriage could 3 not be declared to be a void marriage and it was not within the prohibited degree of relationship. On notice issued by this Court the respondent has appeared and learned counsel fairly accepted that the averments made by the appellant in supplementary affidavit are correct and Annexure-1 to that affidavit rightly shows that subsequently the respondent has married one Shyam Sharma on 19-6-2010. In our considered view when there was no contest to the case made out by the appellant that he was a minor at the time of marriage and had not given his consent for marrying the respondent, the marriage should have been declared a void marriage under section 12 of the Hindu Marriage Act because at the time of alleged marriage the appellant was not only a minor but was married without his consent. Since the respondent has now married another person, in our view, the interest of justice also requires that the marriage be declared a nullity under section 12 of the Hindu Marriage Act and we order accordingly. The judgment and order under appeal are, therefore, set aside and the case of the appellant for declaring his marriage a 4 nullity under section 12 of the Hindu Marriage Act, is allowed. There shall be no order as to costs. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)