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Mohinder Kaur Vs. Major Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 35 of 1970
Judge
Reported inAIR1972P& H184
ActsHindu Marriage Act, 1955 - Sections 5, 9, 9(1), 9(2), 10, 11 and 13
AppellantMohinder Kaur
RespondentMajor Singh
Excerpt:
.....for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in..........an appeal in this court, which was heard by a. d. koshal, j. two contentions were urged before the learned judge by the counsel for the appellant. the first was that the finding given by the trial judge that the alleged marriage of major singh with mohinder kaur had been proved was wrong. this contention was repelled by the learned single judge, who went through the evidence produced by the parties in the case and affirmed the finding given by the trial court on this point. the other submissions of the learned counsel was that mohinder kaur was about 11 years old at the time of her alleged marriage and consequently, the same was void under the provisions of clause (iii) of section 5 of the act, which reads:-- 5. 'conditions for a hindu marriage- a marriage may be solemnized between any.....
Judgment:

P.C. Pandit, J.

1. Major Singh filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, hereinafter called the Act, against his wife Mohinder Kaur. His allegations were that he was married in 1959 and the Muklawa ceremony was performed three years later. Thereafter the parties lived as husband and wife till July, 1963, when his wife left his house without any reasonable excuse and started living with her parents.

2. This petition was resisted by Mohinder Kaur, whose case was that she had never married Major Singh, with the result that the question of her withdrawing from his society never arose.

3. This petition was tried by the Senior Subordinate Judge, Sangrur. He found that Major Singh was married to Mohinder Kaur and further that she had withdrawn from his society without any reasonable excuse. Accordingly, he granted a decree for restitution of conjugal rights in favour of Major Singh.

4. Against this decision, Mohinder Kaur filed an appeal in this Court, which was heard by A. D. Koshal, J. Two contentions were urged before the learned Judge by the counsel for the appellant. The first was that the finding given by the trial Judge that the alleged marriage of Major Singh with Mohinder Kaur had been proved was wrong. This contention was repelled by the learned Single Judge, who went through the evidence produced by the parties in the case and affirmed the finding given by the trial Court on this point. The other submissions of the learned counsel was that Mohinder Kaur was about 11 years old at the time of her alleged marriage and consequently, the same was void under the provisions of Clause (iii) of Section 5 of the Act, which reads:--

5. 'Conditions for a Hindu Marriage-

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:--

(i) x x x

(ii) x x x

(iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of marriage;'

This argument also did not find favour with the learned Judge, who held that Section 5 of the Act did not lay down the sequences of any of the conditions mentioned therein not being fulfilled. The result of the contravention of Section 5(iii) of the Act, according to the learned Judge, was mentioned only in Section 18 of the Act, where it was stated that a person, who procures a marriage of himself or herself in such violation would be punishable with imprisonment, which may extend to 15 days or with fine, which may extend to rupees one thousand or both. This infringement did not affect the tie of marriage itself and render the marriage either void or voidable. The appeal was, accordingly, dismissed. Mohinder Kaur has filed the present appeal under Clause 10 of the Letters Patent, praying that the decree of restitution of conjugal rights passed in favour of the respondent be set aside.

5. The only submission made before us by the counsel for the appellant was about the second contention raised by him before the learned Single Judge,

Section 9(2) of the Act says:

'9 (1) x x x

(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.'

The question for decision is whether a contravention of Section 5(iii) of the Act is a ground for judicial separation or for nullity of marriage or for divorce. If it is not so, then it cannot be pleaded in defence by the appellant to petition for restitution of conjugal rights made by the respondent in this case. The grounds for judicial separation, nullity of marriage and divorce are given in Sections 10, 11 and 13 of the Act respectively. The contravention of S. 5(iii) of the Act does not admittedly find any mention in any of these three sections. That being so, it cannot be pleaded as a ground in answer to a petition for restitution of conjugal rights. The decree passed by the trial Judge and affirmed by the learned Single Judge is, therefore, in conformity with law.

6. The result is that this appeal fails and is dismissed with costs.

Gopal Singh, J.

7. I agree.

8. Appeal dismissed.


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