Aabudi Devi vs Rajuram Dewasi

This appeal is directed against the judgment and decree dated 23.12.2022 passed by Family Court, Merta, whereby, the petition filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 (‘the Act of 1955’), seeking dissolution of marriage has been dismissed as barred by limitation.

The appellant filed proceedings under Section 13 of the Act of 1955 inter alia with the submissions that she was married of while she was only 3 years of age and after making several submissions, relief was claimed that on account of the marriage having been solemnized while she was minor i.e. 3 years of age, the same may be dissolved.

A written statement was filed disputing the averments made in the petition and claiming that the appellant was major and they have two children namely Sharda and Ravindra.

After the evidence was led by the parties, the Family Court framed only one issue pertaining to the fact that marriage was solemnized at the age of 3 years and whether the appellant was entitled to seek dissolution of marriage.

While deciding the said issue the, the Family Court referred to the provisions of Child Marriage Restraint Act, 2006 (‘the Act of 2006) and with reference to Section 3 of the said Act and its sub-Section (3), came to the conclusion that the suit seeking a declaration of the marriage being void could be filed within two years from the date of attaining the age of majority and as the suit was filed at the age of 24 years, the same was barred by limitation and consequently, dismissed the petition filed by the appellant.

Learned counsel for the appellant made submissions that the Family Court fell in error in dismissing the suit based on the provisions of the Act of 2006, inasmuch as, the provisions of Section 13(2)(iv) of the Act of 1955, is independent of the Child Marriage Restraint Act, which provides for a ground seeking dissolution of marriage and, therefore, the judgment impugned deserves to be set aside.

In the alternate, submissions were made that as the appellant had made certain averments in the petition touching other grounds under Section 13(1) of the Act of 1955, however, as neither any issue was framed nor any evidence was led, the petitioner may be permitted to file fresh proceedings in accordance with law.

We have considered the submissions made by learned counsel for the appellant and have perused the material available on record.

It is not in dispute that the Family Court with reference to the Child Marriage Restraint Act, 2006, has dismissed the proceedings as barred by limitation without referring to the provisions of Section 13(2)(iv) of the Act of 1955. The provisions of Section 13(2)(iv) of the Act of 1955, read as under:-

“13. Divorce.-

(1) ……

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

(i) ……

(ii) ……

(iii) ……

(iv) That her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.”

A perusal of the above provision reveals that a wife can present a petition for the dissolution of her marriage on the ground that her marriage was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.

Once the repudiation takes place within the said age of 15 to

18 years and the legal disability to file suit comes to an end at the age of 18 years, the suit / proceedings even under provisions of Section 13(2)(iv) of the Act has to filed within 3 years in view of provisions of Article 137 of the Limitation Act, 1963.

The present proceedings have been initiated by the appellant after attaining the age of 24 years and as such, the said proceedings even under the Act of 1955 were barred by limitation.

In that view of the matter, though the Family Court misguided itself by referring to the provisions of Child Marriage Restraint Act, even under the provisions of Section 13(2)(iv) of the Act of 1955, the proceedings are barred and as such, the appellant is not entitled to any relief.

So far as the plea raised regarding raising other grounds are concerned, apparently, the said averments made in the petition were only for the purpose of supporting the plea of seeking dissolution of marriage on account of the same having been solemnized when the appellant was aged 3 years only, as neither any issue was framed nor any relief with reference to the said averments was sought.

In that view of the matter, merely raising of the issues for substantiating the plea raised based on the provisions of Section 13(2)(iv) of the Act of 1955 would not debar the appellant from filing proceedings in accordance with law / under Section 13(1) of the Act of 1955.

In view of the above discussion and observations, there is no substance in the appeal. The same is, therefore, dismissed.