Sanjay Chandra Jha, son of Shri Dev Chandra Jha, resident of C/o Bharat Singh v. 1
Case Details
1 FA No. 177 of 2019 IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Appellate Jurisdiction) ------ FA No. 177 of 2019 ------- Sanjay Chandra Jha, son of Shri Dev Chandra Jha, resident of C/o Bharat Singh, Kailash Nagar, Chas, Ward No. 11, Near Sanjay Bhandar, PO & PS … Appellant Chas, District Bokaro, PIN 827013. … Versus 1. Smt. Ruby Kumari Mishra wife of Sanjay Chandra Jha, daughter of Shri Munindra Nath Mishra @ Munu Jee. 2. Munindra Nath Mishra @ Munu Jee, son of late Kashinath Mishra Both present resident of C/o Balkrishna Jha, Qrs. No. 102, Sector 3/D, Bokaro Steel City, PO and PS B.S. City, District Bokaro. Both permanent resident of village Sugauna (Pandit Tola), Ward No. 15, PO and PS Raj Nagar, District Madhubani, Bihar. PIN 847235. … … Respondents PRESENT HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA ------ For the Appellant For the Respondents : Mr. Baibhaw Gahlaut, Advocate : Mrs. Shilpi Sandil Gadodia, Amicus ------ J U D G M E N T 1st February 2023 Per, Shree Chandrashekhar,J. Sanjay Chandra Jha (hereinafter referred to as the appellant) whose marriage was solemnized with Ruby Kumari Mishra (hereinafter referred to as the respondent) on 19th June 2017 at H.S.C.L. Club, Sector-I, Bokaro Steel City according to Hindu customs and practices is aggrieved of the order dated 11th April 2019 by which Original Suit No. 129 of 2019 (in short, “Annulment case”) has been dismissed on the ground that the Annulment case has been filed more than one year after discovery of a material fact concerning the respondent and, therefore, barred under section 12 (2) (a) (i) of the Hindu Marriage Act, 1955 (in short, “H.M. Act”). 2. The Family Court in order dated 11th April 2019 passed in Original Suit No. 129 of 2019 has held as under: “So, from the averment of the plaint, the petitioner has alleged that the mental disorder of the respondent No.1 has been disclosed to him on 17.10.2017 but this case has been filed after much more than one year i.e. on 11.03.2019 from the discover of the alleged fraud. Hence, this suit is not maintainable under section-12(a)(i) of Hindu Marriage Act, 1955 because it has been filed much after one year from discover of the mental disorder. 2 FA No. 177 of 2019 Further, the petitioner has not sought any condonation petition. Accordingly, this suit of the petitioner is not maintainable, hence the same is dismissed at the admission stage”. 3. Section 3 of the Limitation Act 1963 indicates that it is the duty of the Court to see whether any suit, appeal or application has been made after the prescribed period of limitation and, if that is so, subject to the provisions under sections 4 to 24 such suit, appeal or application is liable to be dismissed even where limitation has not been set up as a defence. Therefore, dismissal of the Annulment case on the ground that it has been filed beyond the period of limitation as prescribed under section 12 (2) (a) (i) of the H.M.Act shall be in accordance with the mandate of law as incorporated under section 3 of the Limitation Act. 4. While so, the issue which would arise is, and in fact has been pleaded, whether or not the provisions of the Limitation Act as to condonation of delay or exclusion of certain periods from the prescribed period of limitation are applicable while dealing with the Annulment case which seems to be barred under section 12 (2) (a) (i) of the H.M. Act. 5. Section 12 of the H.M. Act. reads as under: “12(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage— (a) on the ground specified in clause (c) of sub-section (1), shall be entertained if— (i) the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered.” 6.
Legal Reasoning
The learned counsel for the appellant has referred to the judgment in “Consolidated Engg. Enterprises v. Principal Secy. Irrigation Deptt. & Ors” (2008) 7 SCC 169 to submit that the provisions of section 14 of the Limitation Act shall apply to the proceedings under the H.M. Act inasmuch as the applicability of the said provision has not been expressly excluded under the H.M. Act. The learned counsel for the appellant has also referred to the judgment in “N. Rajendran v. S. Valli” 2022 SCC OnLine SC 157 and a judgment by the Calcutta High Court in “Sipra Dey v. Ajit Kumar Dey” 1987 SCC OnLine Cal 184 to submit that the policy of the legislature is not to curtail rights of the parties engaged in matrimonial disputes, at least at the first stage, and, therefore, the provisions under section 29(3) of the Limitation Act may not be enforced to curtail rights of the parties under the H.M. Act. 7. In “Consolidated Engg. Enterprises” the Hon’ble Supreme Court 3 FA No. 177 of 2019 has observed as under: “22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.” 8. under : In “N. Rajendran” the Hon’ble Supreme Court has observed as “22. The Legislature wished to extend the protection from the Limitation Act, as it were, in regard to the word ‘proceedings’ in matrimonial matters to persons other than those who were covered by the provisions of section 29(3) in the Limitation Act, 1908. Protection under Section 29(3) of the 1908 Act was available to those who are governed by the Indian Divorce Act. The rationale appears to be that by the very nature, matrimonial matters like Restitution of Conjugal Rights, Divorce, Guardianship, are matters for which it may not be appropriate to fix a period of limitation. It would not be in the interest of justice qua the parties and, therefore, not in the interest of society. It is this principle which was extended to cases, as for instance, to proceedings under the Special Marriage Act, where parties were governed by the Special Marriage Act, and the Parsi Marriage Act and any other law which related to matrimonial matters. But when it comes to providing for an appeal from the original proceedings, it is an entirely different proposition. It is in the interest of the parties and also the society at large that a period of limitation is fixed within which the verdict of the Court at the bottom of the judicial hierarchy is called in question. There must be certainty and certainty in point of time and it is viewed in this regard, that we must understand the meaning of the word “proceeding” in Section 29(3). 23. We have no difficulty in contemplating that shorn of the context provided in Section 29(3), and placed in a different setting, the word “proceeding” may embrace an appeal. However, in the 4 FA No. 177 of 2019 context of Section 29(3) and having regard to the history of the legislation, it is quite clear that the intent of the legislature was to take in proceedings before the original court by way of a petition as are contemplated in various provisions of the Hindu Marriage Act as for instance. Further we would notice that as was in fact correctly noticed by the Calcutta High Court in the judgment (supra), that in Sections 3, 4, 5, 12, 13, 29, 30 & 31 of the Limitation Act, the expression ‘appeal’ is expressly used. What is more apposite is in Section 29 itself, which is at the center of the controversy before us, Section 29(2) on the one hand, expressly uses the word ‘appeal’, whereas when it comes to Section 29(3), the legislature has carefully chosen the word ‘proceedings’. Going by the company, the word “proceedings” keeps, namely a suit, it in no uncertain terms indicates that what the legislature had in mind was original proceedings and not appellate proceedings. In fact, a learned Single Judge of the Kerala High Court had dealt with this issue in the judgment reported in Kuttimalu v. Subramonian and his views on similar lines, stands approved by the full Bench of Kerala High Court in Kunnarath Yesoda v. Manathanath Narayanan. It is relevant to notice the following paragraphs from the judgment of the full Bench of the Kerala High Court: “16. The second contention relates to the meaning of the expression “other proceeding” in Section 29(3) of the Limitation Act. As has been rightly held in Kuttimalu v. Subramonian 1981 Ker LT 602 : (AIR 1981 NOC 221) following Chander Dev v. Rani Bala, AIR 1979 Del 22, the statutory bar under Section 29(3) is limited to suits and other proceedings both of which are original in nature and not to appeals which belong to a distinct and separate category. We are in entire agreement with the reasoning and conclusion of Balagangadharan Nair, J. in 1981 Ker LT 602 : (AIR 1981 NOC 221). 17. The contention therefore that the appeal under the Hindu Marriage Act against a decree for divorce should be filed within 30 days of the date of the decree, whether a certified copy has been obtained or not and even if the appellate Court closes after the decree has been passed or order has been made and remain so closed for over 30 days therefrom cannot be accepted. Section 15 of the Hindu Marriage Act only declares that it shall be lawful for either party to the marriage to marry again under certain circumstances. From this it does not follow that a right to remarry enures automatically after the expiry of 30 days from the date of the decree of divorce. If an appeal is presented, one will have to wait till it is dismissed. If there is a right of appeal, the time for filing the appeal should have expired without the appeal being filed, taking into consideration the time required for obtaining the certified copy. The period for filing the appeal does not expire if once the delay in filing the appeal is condoned. The computation of time under Section 10 of the General Clauses Act, 1897 when the court or office is closed also extends the time beyond 30 days. Thus Section 15, on its face, indicates that it is not the legislative intention that a right to remarry arises exactly after 30 days of the decree of divorce. 18. Reliance was placed on Section 23(4) of the Hindu Marriage Act which provides:— “In every case where a marriage is dissolved by a decree of divorce the court passing the decree shall give a copy thereof free of cost to each of the parties”. The contention was advanced that an applicant was entitled to a copy free of cost and therefore the time taken to obtain a certified 5 FA No. 177 of 2019 copy cannot be excluded. Our attention was also drawn to Section 363(1) of the Criminal Procedure Code under which:— “When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost”. Section 15 of the Hindu Marriage Act only enables the applicant to obtain a copy free of cost; but does not statutorily prescribe the time during which the copy has to be delivered. Section 23(4) does not advance the contention of the appellant that the time required to obtain the certified copy cannot be excluded.”” 9. Mrs. Shilpi Sandil Gadodia, the learned Amicus has referred to the judgment in “Om Prakash Verma v Seema Prasad” 2019 SCC OnLine Jhar 1687 of the Jharkhand High Court and the judgment in “Jagat Pal Singh v. Sadhana Jana” 2019 SCC OnLine Chh 283: (2020) 1 CGLJ 48 of the Chhattisgarh High Court to support the order passed by the Family Court in the Annulment case. The submission made by the learned Amicus is that the policy of law as reflected in various provisions of the different Statutes must be given effect to by the Courts and while so the Annulment case which was filed by the appellant beyond the prescribed period of limitation of one year from discovery of the fraud has rightly been dismissed by the Family Court. 10. To substantiate her submission, the learned Amicus has specifically referred to paragraph Nos. 2(i) to 2(v) of the petition filed by appellant before the Family Court, which read as under: 2.i.) The petitioner is a citizen of India working as Teacher in Guru Govind Singh Public School at Chas (Bokaro) earning a meager take home salary of Rs 15.500 (Fifteen Thousand Five Hundred Rupees) a month. 2.ii)That, nine months after marriage, one application under Section 10 of the Hindu Marriage Act relating to marriage between the parties for relief of Judicial Separation was filed on 15/03/2018 in this Court registered as Original Suit No. 87 of 2018. 2.iii) That, the said suit was filed because four months after marriage, in third week of October 2017 (on 17/10/2017) respondent number 2 disclosed that his daughter respondent no. 1 (bride) was suffering from mental disorder from before marriage. 2.iv.) This fact of fraudulent concealment of mental disorder of respondent no. 1 was submitted in para 16 of the said suit within 5 months of disclosure and within 9 months of marriage. 2.v) That, the said suit continued for one year and there after dismissed ex-parte by judgement 23/02/2019 on the basis of lack of medical paper of mental disorder. Hence, present suit is being filed now within a month of dismissal of the said suit. 11. In “Om Prakash Verma” the Court has held that: “9. The only question now remains to be decided is whether the suit could be entertained by the Trial Court, in view of Section 12(2)(a) (i) of the Hindu Marriage Act. Admittedly in the present case the 6 FA No. 177 of 2019 fraud, if any, came to the knowledge of the petitioner on 11.9.2014, when it is alleged that the respondent-wife herself wrote letters to the petitioner himself, his father and the S.P., Jamshedpur, disclosing a bout her earlier relationship with someone else, and begetting a baby out of the relationship. Admittedly the present suit was filed on 31.10.2017 Section 12(2)(a)(i) of the Hindu Marriage Act reads as follows:- “(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1), shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered.” 12. In “Jagat Pal Singh” it has been held that: “12. Reading of the aforesaid provision clearly reveals that no petition for annulling a marriage on the ground specified in 7 Section 12(2)(a)(i) shall be entertained, if the petition is presented more than one year after the fraud has been discovered. Thus, where a decree of nullity of marriage is sought on the ground as enumerated in Section 12(2)(a)(i) of the Hindu Marriage Act, the suit will have to be filed within a period of one year from the date the fraud has been discovered. In the present case, apparently, the discovery of this fact, on appellant's own showing, had taken place on 14.10.2009, when the first suit seeking decree of divorce was filed by the appellant against the respondent/wife. If the period of one year is to be reckoned from 14.10.2009, the appellant was required to file suit seeking decree of nullity on the ground of fraud on or before 14.10.2010, whereas in the present case, the suit has been filed as late as on 13.06.2011. 13. The submission of learned counsel for the appellant that the word 'discovered' as occurring in 12(2)(a)(i) of Hindu Marriage Act has to be rationally construed and interpreted to mean that it not only includes discovery of fraud but also all material evidence to prove fraud does not amount acceptance. There is nothing in the said provision to warrant such interpretation to be made that the discovery should not only be of fraud but each and every material evidence to prove fraud. The legislature dearly provides that no petition for annulling a marriage would be entertained, if it is filed more than one year after fraud has been discovered and therefore, the date of discovery of fraud and not any subsequent date of collection of material evidence to prove fraud is relevant for the purposes of computing the period of one year. Apparently the appellant's suit was barred under Section 12(2)(a)(i) of the Hindu Marriage Act. In view of the above, we need not decide the other issue in this case, as the suit is found to be barred by limitation. Therefore, this appeal fails and is hereby dismissed.” 13. To have a better appreciation of the rival contentions, it is necessary to see the relevant provisions under the H.M.Act such as sections 4,10, 20 and 21, which read as under: “4. Overriding effect of Act.—Save as otherwise expressly provided in this Act,— (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the 7 FA No. 177 of 2019 commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. 10. Judicial separation.— (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13, and in the case of a wife also on any of the grounds specified in sub- section (2) thereof, as grounds on which a petition for divorce might have been presented. (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. 20. Contents and verification of petitions.—(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded, 52[and except in a petition under Section 11, shall also state] that there is no collusion between the petitioner and the other party to the marriage. (2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence. 21. Application of Act 5 of 1908.—Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.” 14. To begin with, section 4 of the H.M. Act which provides that any other law in force immediately before the commencement of the H.M. Act shall cease to have effect insofar as it is inconsistent with any of the provisions of this Act besides any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act. Section 21 of the H.M. Act provides that all proceedings under this Act shall be regulated as far as may be practicable by the provisions of the Code of Civil Procedure, 1908, subject to other provisions of this Act. Going ahead with the legislative intendment, section 20 of the Family Courts Act, 1984 provides that the provisions of the Family Courts Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act. 15. Section 20 has a co-relation with section 19 of the Family Courts Act which makes a provision for appeal against any order or judgment not being 8 FA No. 177 of 2019 an interlocutory order of a Family Court for which a period of limitation has been prescribed under sub-section (3) that every appeal shall be preferred within a period of 30 days from the date of the judgment and order of a Family Court. 16. With the aforesaid provisions in the background, we form a definite opinion that the law laid down by the Hon'ble Supreme Court in “Consolidated Engg. Enterprises” shall not be applicable to a proceeding under the H.M. Act because section 43 of the Arbitration and Conciliation Act, 1996 specifically provides that the Limitation Act, 1963 shall apply to arbitrations and proceedings in the Court. 17. Even otherwise also the benefit of section 14 of the Limitation Act cannot be extended to the appellant for more than one reasons. Firstly, the exclusion of time for taking a proceeding bona fide in a Court of law which has no jurisdiction is hedged with conditions that: (i) the plaintiff has been prosecuting the case with due diligence (ii) in good faith and (iii) the Court concerned had no jurisdiction, or (iv) any other cause of a like nature to entertain the suit. Secondly, the proceeding in the Court which the plaintiff claims was a bona fide mistake must be between the same party, and for the same cause and relief. The appellant filed a petition under section 10 of the H.M. Act which is altogether a separate and different cause of action compared to a petition filed under Clause (a)(i) of sub-section (2) to section 12 of H.M. Act seeking a decree of nullity on the ground of fraud played upon him in concealing a material fact as to mental disorder of the respondent. 18. The aforesaid being the distinctive features of both the cases, the appellant cannot have the benefit of the provisions under section 14 of the Limitation Act. 19. Having found so, we do not find any other reason to interfere in this matter and, accordingly, FA No.177 of 2019 is dismissed. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated:1st February 2023 SB/Nibha-NAFR