BILASPUR (C.G.I v. Satyanarayan

FIRST APPEAL UNDER SECTION 28 OF HINDU MARmAGE ACT 1955 READWITH SECTION 19 OF FAMILY COURTS ACT ^, HIGH COURT OF CHHATTISGARH AT B1LASPUR DIVISION BENCH: HON'BLE DR. I.M. QUDDUSI, & HON'BLE MR. G. MINHAJUDDIN, JJ. First Appeal (Ml No. 75 of 2010 Appellant Smt. Nidhi Dewangan Non-Applicant Dilip Rawlani Vs ^ Present: Mr. Ratnesh Ku. Agrawal, counsel for the appellant. Mr. R. Pandey, counsel for the respondent. Oral Order (14th March, 2012) Per Dr. I.M. Quddusi. J

This appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 14.5.2010 passed by the Judge, Family Court, Bilaspur, in Civil Suit No.142-A/2009, whereby the application filed by the appellant under Section 11 of the h4indu Marriage Act, 1955 for declaration of marriage with the respondent as null and void, has been rejected.

Facts not in dispute are that marriage between the parties was solemnized on 19.2.2009 and presently the appellant is residing separately from the respondent.

Case of the appellant, »n brief, is that the respondent by suppressing the material fact that he is already married and having three children from his first wife, performed marriage with the appellant on 19.2.2009 at Arya SamajMandir, Raipur and when she came to know about this after 10 days of her marriage, she left her matrimonial house and is residing separately with her father. T^%.. ^^ ^N, '^l^^y^.^,, "::'c%:r-S . ^---^ ^ 1 •^^^-" '^. '^^..vr:. ^'; ^NNC '^

The respondent has denied the above allegations and contended in his written statement that the appellant was well aware of the fact that the respondent has relations with one Kajal Rawlani and has three children through her and despite that, she had contracted marriage with him of her own free will, without any pressure or fear at Arya Samaj Mandir, Baijnathpara, Raipur on 19.2.2009. However, the above application has been filed by the appellant at the instance of her family members under pressure and as such, it is liable to be rejected. Learned Family Court after hearing the parties, considering the material available on record, by the impugned judgment and decree rejected the application under Section 11 of the Hindu Marriage Act filed by the appellant. Heard learned counsel for the parties, perused the LCR as also the impugned judgment and decree. During the course of arguments, learned counsel for the

appellant has submitted that there was a bonafide belief of the appellant the respondent was already a married person, but during pendency of the proceedings in the Court below, this fact has come on record that the respondent had not married earlier but is having a keep named Kajal Rawlani in his house and through her there are three children. The appellant obtained the documents from the school where those children are studying, in which the names of father and mother have been mentioned as Dilip Rawlani and Kajal Rawlani respectively. Therefore, marriage between the appellant and the respondent would fall under Section 12 of the Hindu Marriage Act, 1955. But, inadvertently, appellant has made a prayer in the plaint for declaration of marriage as null and void by a decree of nullity, whereas the prayer of annulment of marriage should have been made on account of the marriage falling under Section 12 of the hlindu Marriage Act as voidable marriage.

Learned counsel for the respondent has submitted that the respondent has no objection even if the appellant makes a ,—y^^^ ^^ ~"v^ .^atrii&^"' ' prayer under Section 13B of divorce and the respondent is ready to give divorce to the appellant by mutual consent. the Hindu Marriage Act

Thus, considering the facts and circumstances of the case, we are of the opinion that the matter is liable to be remitted back to the Family Court for deciding the matter afresh after giving an opportunity to the appellant application for amending the prayer as there exists a plea with regard to voidable marriage in the pleadings of appellant. to move a suitable

Parties shall appear before the Family Court on 30 April, :ft ^

LCR shall be sent back to the Family Court concerned without further delay.

No order asjto costs. Sd/- Dr. I.M. Quddusi Judge ^ Sd/- G. Minhajuddin Judge