If  a married couple is living separately for 9 months and one party is mentally unsound and unable to procreate of children then such marriage can be annulled – Delhi High Court.

CRR 767 2018 In the High Court of Punjab and Haryana at Chandigarh CRR 767 2018 Date of Decision: February 20 2019 State of Haryana CORAM: HON BLE MR. JUSTICE RAJBIR SEHRAWAT Mr. Ankur Lal Advocate for the petitioner Mr. M.D. Sharma AAG Haryana Mr. Rituraj Singh Advocate for Mr. Gutam Dutt Advocate for the complainant Rajbir Sehrawat J.Rules 2007Rule 12 prescribed the procedure to be followed for determination of age where an accused claims to be juvenile. It is submitted that as per the provisions of the Rule 12 the primacy has to be given to the matriculation certificate if available. The other material i.e. the date of birth certificate from the school can also be relied upon but only if matriculation certificate is not available. If school certificate is not available only then the birth certificate issued by the Municipal Corporation or an authority is to be taken into consideration. Hence it is submitted by the counsel that since the first certificate i.e. matriculation certificate itself is available therefore the other certificates are excluded per se from the consideration for the purpose of determination of age of the petitioner and as per the date mentioned in the matriculation certificate the petitioner is a juvenile. Hence both the Courts below have committed a CRR 767 2018 grave illegality by not following the provisions of the above mentioned Rule while determining the age of the petitioner. It is further submitted by the counsel for the petitioner that in another case relying upon the same matriculation certificate petitioner is being tried as a juvenile. This fact was duly brought to the notice of the Courts below. However that has been brushed aside by the Courts below on the ground that the other relevant material was not available in those proceedings. In support of his argument the learned counsel for the petitioner has relied upon judgments of Supreme Court rendered in Siba Bisoyi vs. State of Odisha 2017(4) R.C.R Criminal) 409 Lok Nath Pandey vs. The State of Uttar Pradesh Another 2017 AIR3866 Ashwai Kumar Saxena vs. State of M.P. 2012(4) R.C.R. 391 Parag Bhati through Legal Guardian Mother Smt. Rajni Bhati vs. State of Uttar Pradesh and another 2016(2) R.C.R.1031 and Division Bench judgment of this Court rendered in Vikram Singh vs. State of Haryana 2017(3) R.C.R On the other hand learned counsel for the complainant submitted that the Juvenile JusticeAct 2015has superseded the earlier provisions laid down in the Rules. A new provision has been enacted in the Act itself. According to that provision the matriculation certificate no more enjoys the place of primacy while determining the age of the accused. The date of birth certificate from the school and the matriculation certificate have been put at par so far as their evidentiary value is concerned. It has been left to the Court to assess the age of the person brought before it. It is further submitted that sub sectionof Section 94 of the Act makes the age as CRR 767 2018 determined by the Committee Court Board as the true age of the person for the purpose of trial. It is further submitted that the date of birth of the petitioner is mentioned differently in all the schools. Even the matriculation certificate bears a date of birth of the petitioner which is based further upon a date of birth certificate which was given by the third previous school. However admission record in the said third previous school does not testify the date of birth as mentioned in the matriculation certificate Hence both the Courts below have rightly declined the application moved by the petitioner Learned State counsel has submitted that the investigating agency has produced all the relevant records before the Magistrate Board at the time of determination of the age of the petitioner. The undisputed and initial date of birth mentioned in the Govt. School record is 07.08.1996 Hence the same has rightly been taken by the Courts as the date of birth of the petitioner. The application of the petitioner has rightly been declined by the Courts below Having heard learned counsel for the parties and perusing the paper book this Court finds no substance in the arguments raised by the learned counsel for the petitioner. Although the Juvenile JusticeRules 2007 had given a place of primacy to the matriculation certificate over the other proofs of date of birth of the accused however that provision stands replaced by the Act 2015. A new provision governs the procedure for determination of the age of the accused now. The relevant provisions of the Act as contained in Section 94 is reproduced herein below: “94. Presumption and determination of age that the said person is a child the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36 as the case may be without waiting for further confirmation of the age In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not the Committee or the Board as the case may be shall undertake the process of age determination by seeking evidence by obtaining the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board if available and in the absence thereof the birth certificate given by a corporation or a municipal authority or a panchayat and only in the absence ofandabove age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such The age recorded by the Committee or the Board to be the age of person so brought before it shall for the purpose or this Act be deemed to be the true age of that CRR 767 2018 A perusal of the provisions of the Act would show that under new provisions of law the primacy has been given to the assessment of the Board Court as to the age of the accused. This assessment can be done on physical appearance or even on the basis of the examination by other method like putting basic question to adjudge the age and understanding of the accused. In any case if there is any doubt in the mind of the Court Board then the provision prescribes that it is the birth certificate given by the school or the date of birth as mentioned in the matriculation certificate which shall be taken into consideration in the first instance. If these two certificates are not available then the further certificates as mentioned in the Section are to be taken into consideration. Hence the school certificate and the matriculation certificate have been put at par for the first consideration of the Court for adjudging the actual age of the accused. It is for the Court Board to take a final call on the date of birth of the accused in view of either of these documents or coupled with other attending circumstances which might have come on the record of the case By any means the place of primacy conceded to the matriculation certificate in the old Rules is no more available to it. The matriculation certificate no more enjoys that exclusive privilege. Although learned counsel for the petitioner has relied upon certain judgments of Supreme Court and one Division Bench judgment of this Court to emphasize the primacy of Matriculation Certificate in determination of age of the accused however this Court finds that all those judgments are distinguishable on the peculiar facts of those cases. In all those cases the offences committed before enforcement of the Act of 2015 were involved. So the scope of Section 94 of the new Act of 2015 was not even under consideration in either of those CRR 767 2018 cases. Hence those judgments cannot be taken as precedent for the cases involving offences committed after the enforcement of Act of 2015 As it has come on record of this case the petitioner was first admitted in Government Primary School in first standard on 02.08.2002. At that time the date of birth of the petitioner was mentioned as 07.08.1996 However name of the petitioner was struck off from that school because of his continuous absence. Thereafter the evidence brought on record shows that the petitioner had taken admission in Sai Senior Secondary School on 24.08.2008 again in the first class. There the date of birth mentioned in this school at the time of admission is 26.08.2003. This fact has even been deposed by CW4 the clerk of the school. The petitioner is stated to have studied in the school upto 8th class. Thereafter the petitioner claims to have taken admission at Gangotri Modern Senior Secondary School in 9th class on 10.07.2014 on the basis of school leaving certificate issued by Sai Senior Secondary School and at the time of admission in this school the date of birth mentioned is again changed to 23.07.1999. Counsel for the petitioner has tried to explain the disparity in date of birth recorded in Sai Senior Secondary School and Gangotri Modern Senior Secondary School by submitting that in the 8th pass certificate issued by Sai Senior Secondary School the date of birth mentioned is 23.07.1999 therefore the Gangotri Modern Senior Secondary School had recorded this date as the date of birth of the petitioner. However this itself creates a doubt. The petitioner is stated to have taken admission in Sai Senior Secondary School on 24.08.2008 in the first class. Therefore he would have passed 8th class only in the year 2016 whereas he has taken admission in 9th class in the year 2014. This itself shows the entire manipulation in the school record of Sai CRR 767 2018 Senior Secondary School done for the purpose of getting admission in 9th class in Gangotri Modern Senior Secondary School. It is clear that the date of birth was deliberately changed by Sai Senior Secondary School and the petitioner was given 8th pass certificate with a different date of birth against the record of that school itself by changing the date of birth from 26.8.2003 to 27.3.1999. Needless to say that next year again the petitioner had changed the school and took admission in Jai Bharat School from where he has stated to have passed the matriculation. Accordingly the date of birth mentioned in the matriculation certification of the petitioner is 23.07.1999 as was provided by Gangotri Modern Senior Secondary School. However since the date of birth which was provided by Sai Senior Secondary School and Gangotri Modern Senior Secondary School itself is shown to be manipulated therefore the matriculation certificate of the petitioner cannot be taken as a reliable proof of the date of birth of the petitioner for the purpose of the present trial. As is clear from the above the Courts below have taken the record of the Government Primary School as the base record to determine the date of birth of the petitioner to be 07.08.1996. It has also come on record that after leaving Govt. School the petitioner has given different dates of birth for getting admission in different schools in different classes which are found to not even commensurate with his age. Hence the Courts below have committed no illegality by giving more value to the date of birth recorded in the Government Primary School. This determination of age of the petitioner by the Courts below is perfectly in latter spirit of Section 94 of the Act of 2015. Needless to say that once the age is so determined by the Juvenile Court Board Committee as prescribed under the Act then the CRR 767 2018 same has been prescribed to be the deemed age of the accused for the purpose of trial. In the present case the age determined by Magistrate has even been upheld by the lower appellate court. Hence although there is no ground to differ with the Courts below however even if this court had any second opinion qua date of birth of the petitioner from the one determined by the Court below it would not substitute its own opinion in place of the satisfaction of the Court of the first instance which under the statute has been made the final adjudicator of the age of the accused Although learned counsel for the petitioner has also submitted that in the other trial the petitioner is being tried as a juvenile however nothing has come on record of this case to show that in that case his age was determined by the Board Court by following the procedure of inquiry as prescribed under the Act. In fact in that case the prosecution itself had taken the petitioner as a juvenile. It is even admitted that no inquiry was held. No evidence was led in that case to find out the actual age of the petitioner. Hence the fact that the petitioner is being tried as a juvenile in another case cannot be taken as a relevant factor for the determination of the age of the petitioner in the present case. In view of above no ground for interference is made out Accordingly present petition is dismissed February 20 2019 Whether speaking reasoned

Summary: If  a married couple is living separately for 9 months and one party is mentally unsound and unable to procreate of children then such marriage can be annulled -Delhi High Court. Under Section 12(1)(d) of Hindu Marriage Act it is stated that any marriage solemnized, shall be voidable and may be annulled by a decree of nullity if any of the party is pregnant by some person other than the spouse, which comes into conflict in several instances one of such case was decided by single judge bench HON’BLE MR. JUSTICE VIPIN SANGHI &amp; HON’BLE MR. JUSTICE JASMEET SINGH in the case of SANDEEP AGGARWAL VS PRIYANKA AGARWAL (MAT.APP(F.C.) 142/2020).The marriage between the appellant and the respondent was solemnized on 10.12.2005.As per the appellant, the marriage between the appellant and the respondent was the outcome of a calculated fraud .According to the appellant; the respondent was, before the marriage, and during the days that she stayed with the appellant, suffering from Acute Schizophrenia. The respondent behaved in a very unusual manner after her marriage in the matrimonial home, as well as during their honeymoon. Consequently, the appellant took the respondent to the doctor, who after examining her referred her prescribed certain medicines.  The counsel for the petitioner contended that Clause 2(b) of Section 5 provides for one of the conditions for a valid Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder or insanity. In terms of Section 12(1) (b) of the Act a marriage may be held to be voidable if the other party was suffering from mental disorder or insanity. Section 13(1) (iii) of the Act provides that a party to the marriage may present a petition for dissolution of marriage by a decree of divorce inter alia on the ground that the other party has been incurably of unsound mind. The counsel for the respondent contended that clause 2(b) of Section 5 provides for one of the conditions for a valid Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder or insanity. In terms of Section 12(1) (b) of the Act a marriage may be held to be voidable if the other party was suffering from mental disorder .Section 13(1) (iii)  provides that a party to the marriage may present a petition for dissolution of marriage by a decree of divorce inter alia on the ground that the other party has been incurably of unsound mind and petitioner cannot reasonably be expected to live with the respondent. The High Court of Delhi “the matter has been overshadowed by his love for his daughter, i.e. the respondent, which is only natural and to be expected. However, in the process, unfortunately, the life of the appellant has been ruined and he has remained stuck in this relationship for 16 years without any resolution. In the most important years of his life, when the appellant would have, otherwise, enjoyed marital and conjugal bliss and satisfaction, who appears to have been calling the shots in relation to the matrimonial dispute raised by the appellant. In these circumstances the appeal is allowed.”