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A.F.R.

Reserved on: 7.8.2019

Deliverd on: 13.9.2019

Court No. - 34

Case :- FIRST APPEAL No. - 40 of 2011

Appellant :- Prachi

Respondent :- Shailendra Kumar

Counsel for Appellant :- Rakesh Pandey,Vishnu Pratap Pandey

Counsel for Respondent :- Ghanshyam Dwivedi,M.S.Pipersania

Connected with

Case :- FIRST APPEAL No. - 107 of 2016

Appellant :- Shailendra Kumar

Respondent :- Prachi

Counsel for Appellant :- G. S. Dwivedi

Counsel for Respondent :- Rakesh Pande

With

Case :- FIRST APPEAL No. - 157 of 2016

Appellant :- Dr Prachi Sharma

Respondent :- Dr Shailendra Kumar

Counsel for Appellant :- Tej Prakash Mishra,Tej Prakash

Counsel for Respondent :- G.S. Dwivedi

Hon'ble Sudhir Agarwal,J.

Hon'ble Rajeev Misra,J.

(Delivered by Hon'ble Rajeev Misra,J.)

1.First appeal No. 40 of 2011 (Prachi Vs. Shailendra Kumar) has been

filed by appellant Prachi, challenging Judgement dated 4.12.2010 and

Decree dated 22.12.2010, passed by Principal Judge, Family Court,

Allahabad in Matrimonial Case No. 37 of 2002 (Shailendra Kumar Vs.

Prachi) under section 12 (1) of Hindu Marriage Act 1955 (hereinafter

referred to as Act, 1955), whereby marriage between parties has been

declared, a nullity.

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2.First Appeal No. 107 of 2016 ( Shalendra Kumar Vs. Prachi) has

been filed by plaintiff Shailendra Kumar, challenging findings recorded

by Principal Judge, Family Court, Allahabad on Issue Nos. 1,2 and 3 in

judgement dated 4.12.2010 rendered in Matrimonial Case No. 37 of 2002

(Shailendra Kumar Vs. Prachi).

3.First Appeal No. 157 of 2016 (Dr. Prachi Sharma Vs. Dr. Shailendra

Kumar) has been filed by appellant Dr. Prachi Sharma challenging Order

dated 24.11.2008, passed by Principal Judge, Family Court, Allahabad in

Marriage Petition No. 37 of 2002 (Shailendra Kumar Vs. Prachi

Sharma ), whereby application filed by appellant under section 24 of Act,

1955 (Paper No. 47 Ka) has been allowed and plaintiff has been directed

to pay only a consolidated sum of Rs. 10,000/- to the appellant towards

litigation expenses. appellant had also challenged order dated 6.2.2009,

passed by Principal Judge, Family Court, Allahabad, whereby review

application (Paper No. 69 Ka) filed by appellant, seeking review of order

dated 24.11.2008, has been rejected.

4.We have heard Mr. Tej Prakash Mishra, learned counsel for

defendant appellant Prachi and Mr. Ghanshyam Dwivedi for plaintiff

Shailendra Kumar in First Appeal No. 157 of 2016 (Dr. Prachi Sharma

Vs. Dr. Shailendra Kumar), Mr. Ghanshyam Dwivedi for plaintiff-

appellant Shailendra Kumar and Mr. Rakesh Pandey for defendant-

respondent Prachi in First Appeal No. 107 of 2016 (Shailendra Kumar Vs.

Prachi), Mr. Rajesh Kumar Tripathi, Advocate, holding brief of Mr.

Vishnu Pratap Pandey, learned counsel for plaintiff-appellant Dr. Prachi

Mishra and Mr. Ghanshyam Dwivedi, representing defendant-respondent

Shailendra Kumar in First Appeal No. 40 of 2011 (Prachi Vs. Shailendra

Kumar). We shall, hereinafter, referred Dr. Prachi Sharma as appellant and

Shailendra Kumar as plaintiff.

5.According to plaint allegations, marriage of appellant Prachi was

solemnized with plaintiff Shailendra Kumar on 27.11.2002 at Allahabad

in accordance with Hindu Rites and Customs. According to plaintiff,

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marriage between parties never consummated, and as such, no issue was

born out of aforesaid wedlock. After expiry of a period of one year and

few days, plaintiff Dr. Shailendra Kumar filed Marriage Petition No. 37 of

2002 (Dr. Shailendra Kumar Vs. Dr. Prachi Sharma) under section 12 of

Act, 1955 for a decree declaring marriage of parties as nullity. Plaintiff

took as many as seven grounds for declaration of marriage as nullity.

According to plaintiff, appellant has very weak eye-sight and cannot

perform her house hold job without wearing spectacles. The aforesaid fact

was concealed by parents of appellant at time of marriage. Appellant is

also suffering from incurable form of disease in teeth. She was alleged to

be suffering from Pyria and Peritonitis. The said fact was concealed

before marriage and also at time of marriage. Appellant was further

alleged to be suffering from Jaundice and abdominal pain, since before

marriage and also at the time of marriage. Marriage of parties was got

solemnized concealing the aforesaid. It was also alleged that parents of

appellant concealed her age inasmuch as she was aged about 38 years at

time of marriage, whereas, same was alleged to be 30 years at time of

marriage. It was also pleaded that after marriage when appellant came to

house of plaintiff, her behaviour was abnormal and unnatural which was

like a psychotic patient. Appellant was also suffering from tuberculosis at

the time of marriage, which fact has been concealed from plaintiff and his

family. Lastly, it was pleaded that neither before marriage nor at time of

marriage, it was disclosed by parents of appellant that she is hard of

hearing and uses a hearing aid.

6. Upon issuance of summons in Marriage Petition No. 37 of 2002

(Dr. Shailendra Kumar Vs. Dr. Prachi Sharma), appellant appeared and

filed an application under section 24 of Act, 1955 for payment of interim

maintenance and litigation expenses (Paper No. 47 Ka). Aforesaid

application was partly allowed by Court below vide order dated

24.11.2008 and only a sum of Rs. 10,000/- was awarded to appellant

towards litigation expenses. Feeling aggrieved by order dated 24.11.2008,

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since no interim maintenance was awarded, appellant filed review

application (Paper No.69 Ka) seeking review of order dated 24.11.2008.

However, same was rejected by Court below vide order dated 6.2.2009.

Orders dated 24.11.2008 and 6.2.2009, passed by Principal Judge, Family

Court, Allahabad. The same have been challenged by appellant in First

Appeal No. 157 of 2016 (Dr. Prachi Sharma Vs. Dr. Shailendra Kumar).

7.Suit filed by plaintiff Dr. Shailendra Kumar was contested by

appellant. She filed a written statement dated 18.5.2009 (Paper No. 82

Ka) whereby, not only she denied plaint allegations but also raised

additional pleas. According to appellant, she, after completing M.A.

(Economics) Course, joined as a research scholar in Allahabad University

and ultimately, submitted her thesis. Upon knowledge of the fact that

appellant is unmarried and her marriage is to be settled, father of plaintiff

himself proposed marriage of his son plaintiff with appellant. Father of

plaintiff sent his bio-data and expected bio date of appellant along with

photograph. Father of appellant, sent bio-data and her photographs to

father of plaintiff. Later on father of plaintiff demanded horoscope of

appellant, which was duly sent. Father of plaintiff intimated that

horoscope of boy and girl are tallying and therefore, he (father of

plaintiff) is desirous of marrying his son with appellant. In furtherance of

aforesaid, father of plaintiff desired to have a look at the girl that is

appellant. As such, aforesaid ceremony was held in a rented house of

elder brother of appellant, at L-113 Sarojni Nagar, New Delhi. The

aforesaid ceremony was attended by plaintiff along with his parents and

brother. They saw appellant and also had conversation with her. Plaintiff

separately met appellant and talked to her. Appellant duly disclosed about

her educational qualifications and research papers. Later on father of

plaintiff gave his consent for marriage of plaintiff with appellant and fixed

14.1.2002 as date for holding “Bagdan Ceremony”, which is an important

pre marriage ritual performance in the caste of parties. Accordingly, on

14.1.2002, the said ceremony was solemnized at Scientific Apartment. In

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the aforesaid ceremony, parents of plaintiff, his Bhabi and younger

brother came. As per his capacity, father of appellant, gave cash, goods

and jewellery. In reciprocation, parents of plaintiff gave a ring, two sarees

as well as fruits and sweets to appellant. In this ceremony, plaintiff and

appellant stayed together for two hours and understood eachother. Father

of plaintiff- expressed his desire to send certificates and mark-sheets,

pertaining to educational qualification of appellant. Later on father of

plaintiff send application form to appellant for applying in Chandigarh

University. However, as appellant was not awarded Ph. D degree upto that

stage, she could not apply. Appellant, categorically denied factum

regarding sufferance from any diecease. Before marriage she was

suffering from jaundice but upon proper medical treatment she recovered.

As per opinion of Doctor, appellant was only having weakness and

therefore, advised to have restricted diet. Inspite of aforesaid fact having

been disclosed and papers relating to medical prescription of appellant,

having been given, yet family of plaintiff gave greasy food to appellant

which was not conducive for her health. She never suffered from

Tuberculosis, Piereia, Hepatitis disease or abdominal pain. Lastly, it is

also pleaded that father of appellant had given a cheque of Rs.1,00,000/-

and Rs. 5,75,000/- in cash towards dowry along with other goods,

jewellery and costly sarees. Plaintiff and his family raised a demand of

Rs. 20,00,000/- towards dowry. As part of their technique, plaintiff on the

pretext of taking appellant to a doctor, dropped her at her brother's place

in New Delhi on 1.12.2002. Later on father of plaintiff called father of

appellant at Delhi and took him to Kurukshetra. Some papers were got

executed at Kurukshetra, in respect of which, F.I.R. was lodged at New

Delhi. Appellant is younger to plaintiff by three years. Marriage was

solemnized after holding due enquiry, when parents of appellant could not

fulfil illegal demand of plaintiff, suit for annulment of marriage has been

filed maliciously on false grounds.

8.Plaintiff filed replication (paper no.37 Ga) whereby he denied

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contents of written statement and reiterated pleadings raised in plaint.

9.It may be noticed that initially, matrimonial petition was filed in the

Court of District Judge, Kurukshetra. Subsequently, appellant filed

Transfer Application (Civil) No. 772 of 2013 (Smt. Prachi Sharma Vs.

Shailendra Kumar) before Supreme Court. Same was allowed vide order

dated 8.8.2005 and Matrimonial Petition, pending in Court of District

Judge, Kurukshetra, was transferred to Court of District Judge, Allahabad.

Later on, District Judge, Allahabad transferred matrimonial petition to

Family Court, Allahabad. Accordingly, same came to be registered as

Matrimonial Petition No. 37 of 2002 (Shailendra Kumar Vs. Prachi).

10.After exchange of pleadings, parties went to trial. Court below on

the basis of pleadings of parties, framed following issues for

determination:

(I) Whether marriage of appellant has been solemnized with plaintiff by

playing fraud as ailment of appellant prior to her marriage as well as at the

time of marriage was deliberately concealed from plaintiff. If yes, it's

effect?

(II)Whether in the bio-data of appellant, her age was wrongly shown to

be less, deliberately concealing her real age. If yes, it's effect.

(III)Whether on account of physical and mental ailment of appellant, no

conjugal relationship could be established between the parties. If yes, it's

effect?

(IV)Whether appellant and her father have committed cruelty upon

plaintiff and his family members?

(V)Whether plaintiff has abandoned appellant after subjected her to

cruelty for demand of dowry. If yes, it's effect?

(VI) Relief.

11.Court below upon consideration of pleadings of parties, oral and

documentary evidence adduced by parties, proceeded to decide above

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mentioned issues framed by it. Plaintiff, in order to prove his case,

adduced himself as P.W.1. No other witness was adduced by plaintiff. He

also filed documentary evidence, which are mentioned in the impugned

judgement.

12.Appellant in order to prove her defence, adduced herself as D.W.1,

Ramesh Prasad Kala as D.W.2, Professor Dr. Girish Chandra Tripathi as

D.W.3, Brij Lal Nagpal as D.W.4. Appellant also filed documentary

evidence which has also been described in impugned judgement.

13.It may be noticed here that plaintiff took as many as seven grounds

in support of his plea regarding declaration of marriage as nullity in terms

of section 12 of Act 1955. It was pleaded by plaintiff that appellant has a

very weak eye sight. Consequently, she cannot perform her house hold job

without spectacles. But aforesaid fact was concealed by parents of

appellant at the time of marriage. Plaintiff further pleaded that appellant is

suffering from incurable form of disease in teeth. She is suffering from

Pyria and Peritonitis but the same was not disclosed before marriage or at

the time of marriage. In addition to aforesaid grounds, it was also alleged

that appellant is suffering from Jaundice and abdominal pain, which facts

were never disclosed. The age of appellant at the time of marriage was

disclosed as 30 years whereas, appellant actually was aged about 38 years

at the time of marriage. When appellant, after marriage came to her

marital home, her behaviour was abnormal and unnatural like that of a

psychotic patient; She was suffering from mental disorder. It was also

alleged that appellant is suffering from tuberculosis and aforesaid fact was

not disclosed either before marriage or at the time of marriage. Lastly, it

was urged that parents of appellant did not disclose either before marriage

or at the time of marriage that appellant was hard of hearing and used

hearing aid.

14.Out of the aforesaid seven grounds pleaded by plaintiff, only one

ground was accepted by Court below i.e. parents of appellant did not

disclose either before marriage or at the time of marriage that appellant

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was hard of hearing and using hearing aid. Other grounds taken by

plaintiff could not be established in evidence, as such disbelieved by

Court below.

15.Issue Nos. I, II and III were decided together. Court below

concluded that appellant was not suffering from any of the diseases,

alleged by plaintiff. It further held that appellant is younger to plaintiff by

three years. It also held that marriage between parties was solemnized on

27.11.2002. Appellant came to her matrimonial home on 29.11.2002.

Thereafter, she went to her brother's house on 1.12.2002, as such, marital

relations between the parties, were never established. Court below further

held that parents of appellant did not disclose to family of plaintiff either

before marriage or at the time of marriage that appellant was hard of

hearing and used a hearing aid. Issue No. IV was not decided by Court

below on the ground that the same has been framed unnecessarily, as

such, no finding is required to be returned on the point whether appellant

and her father committed cruelty upon plaintiff and his family members.

Issue No.V was decided in favour of plaintiff and it was held that

appellant was not subjected to cruelty for demand of dowry nor she was

disowned by plaintiff. Lastly, Court below concluded that plaintiff is

entitled to decree of annulment of marriage as it was got solemnized by

parents of appellant by playing fraud.

16.Learned counsel for appellant has challenged findings recorded by

Court below on the point that marriage of parties has been obtained by

practising fraud as disability of appellant i.e hard of hearing and using a

hearing aid was never disclosed, either before marriage or at time of

marriage. As such, marriage between parties was got solemnized by

playing fraud and therefore liable to be declared a nullity in terms of

section 12 of Act 1955. He submits that marriage of parties has been

declared, a nullity, by a decree of Court under section 12 of Act 1955. The

only ground on which Court below has passed aforesaid decree is that

appellant was having defect in hearing at the time of marriage and was

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using a hearing aid which fact was concealed from plaintiff. According to

learned counsel for appellant, above ground by itself is not

sufficient/enough to anull marriage of parties as the same does not fall

within the ambit of section 12 or section 5 of Act 1955. In order to pass a

decree of nullity of marriage under section 12 of Act 1955, Court below is

mandatioraily required to declare marriage to be voidable at the instance

of plaintiff on the grounds mentioned in clauses a,b,c and d of sub-section

(1) of section 12 of Act 1955. The ground taken by Court below is not at

all sufficient to declare marriage of parties, voidable, at the instance of

plaintiff. He further submits that marriage of plaintiff was finalized with

appellant by father of plaintiff. However, father of plaintiff was not

adduced as a witness to prove the element of fraud, alleged to have been

played by family members of appellant in the settlement of marriage, nor

there is any pleading raised in plaint as to how and by whom alleged fraud

was played. He, lastly submits that ceremonies solemnized before actual

marriage completely bely the case of plaintiff since he and his family

members had duly seen and talked with appellant. Court below has

erroneously shifted burden to prove pre-marraige ceremonies upon

appellant. Filing of petition by plaintiff after more than a period of one

year from the date of marriage is a malicious design on the part of

plaintiff to a decree of nullity of marriage on non existent ground.

17. Mr. Ghanshyam Dwivedi, learned counsel representing plaintiff has

supported impugned judgement and decree on the basis of findings

recorded therein.

18.Before proceeding to consider correctness of findings recorded by

Court below that marriage between parties has been obtained by fraud

inasmuch as it was not disclosed either before marriage or at the time of

marriage by parents of appellant that she was hard of hearing and

consequently, used a hearing aid, it shall be useful to reproduce section 12

of Act 1955, which relates to voidable marriages:

“12 Voidable marriages . (1) Any marriage solemnised,

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whether before or after the commencement of this Act, shall

be voidable and may be annulled by a decree of nullity on

any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to

the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition

specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of

the guardian in marriage of the petitioner 13 [was required

under section 5 as it stood immediately before the

commencement of the Child Marriage Restraint

(Amendment) Act, 1978 (2 of 1978)], the consent of such

guardian was obtained by force or by fraud as to the nature

of the ceremony or as to any material fact or circumstance

concerning the respondent; or

(d) that the respondent was at the time of the marriage

pregnant by some person other than the petitioner.

(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; or

(ii) the petitioner has, with his or her full consent, lived

with the other party to the marriage as husband or wife after

the force had ceased to operate or, as the case may be, the

fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1)

shall be entertained unless the court is satisfied

(i) that the petitioner was at the time of the marriage

ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a

marriage solemnised before the commencement of this Act

within one year of such commencement and in the case of

marriages solemnised after such commencement within one

year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner

has not taken place since the discovery by the petitioner of the

existence of the said ground.” (Emphasis added)

19.Section 11 of Act 1955 relates to void marriages. As per section 11

of Act 1955 any marriage solemnized after commencement of Act 1955

shall be null and void, if it contravenes any one of the conditions specified

in clauses (i), (iv) and (v) of Section 5 of Act 1955. As noted above,

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section 12 on the other hand deals with “voidable marriages”. Any

marriage solemnized whether before or after commencement of Act 1955

shall be voidable and may be annulled by a decree of nullity on the

grounds detailed in section 12 of Act 1955 itself.

20.The terms 'void' and 'voidable' are not defined in Act 1955. The

aforesaid terms are defined in the Contract Act, 1872 as under:

Section 19. Voidability of agreements without free consent.—

When consent to an agreement is caused by coercion, fraud or

misrepresentation, the agreement is a contract voidable at the

option of the party whose consent was so caused.

A party to contract, whose consent was caused by fraud or

misrepresentation, may, if he thinks fit, insist that the contract shall

be performed, and that he shall be put in the position in which he

would have been if the representations made had been true.

Exception —If such consent was caused by

misrepresentation or by silence, fraudulent within the meaning of

section 17, the contract, nevertheless, is not voidable, if the party

whose consent was so caused had the means of discovering the

truth with ordinary diligence.

Explanation.—A fraud or misrepresentation which did not

cause the consent to a contract of the party on whom such fraud

was practised, or to whom such misrepresentation was made, does

not render a contract voidable.

20. Agreement void where both parties are under mistake as to matter

of fact.—Where both the parties to an agreement are under a mistake as

to a matter of fact essential to the agreement the agreement is void.

Explanation.—An erroneous opinion as to the value of the thing

which forms the subject-matter of the agreement, is not to be deemed a

mistake as to a matter of fact.

21. When an agreement is enforceable at law, it becomes a contract.

Based on validity, there are several types of contract, i.e. valid contract,

void contract, illegal contract, etc. Void contract and voiadable contract

are quite commonly miscontrued, but they are different. Void contract,

implied a contract which lacks enforceability by law, whereas voidable

contract, alludes to a contract wherein one party has the right to enforce or

rescind the contract, i.e. the party has to right to put the contract to end.

22.For better appreciation a comparison chart is given herein below,

giving differences between void and voidable contract:

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Void Contract Voidable Contract

The type of contract which cannot

be enforceable is known as void

contract.

The contract in which one of the

two parties has the option to

enforce or rescind it, is known as

voidable contract.

Section 2 (j) of the Indian Contract

Act, 1872.

Section 2 (I) of the Indian Contract

Act, 1872

The Contract is valid, but

subsequently becomes invalid due

to some reasons.

The contract is valid, until the party

whose consent is not free, does not

revokes it.

Subsequent illegality or

impossibility of any act which is to

be performed in the future.

If the consent of the parties is not

independent.

No right in favour of parties to the

contract which is void

Yes, but only to the aggrieved party.

Not given by any party to another

party for the non-performance, but

any benefit received by any party

must be restored back.

Damages can be claimed by the

aggrieved party.

23.Thus a void contract may be defined as a contract which is not

enforceable in the Court of law. At the time of formation of the contract,

the contract is valid as it fulfils all the necessary conditions required to

constitute a valid contract, i.e. free consent, capacity, consideration, a

lawful object, etc. but due to a subsequent change in any law or

impossibility of an act, which are beyond the imagination and control of

the parties to the contract, the contract cannot be performed, and hence, it

becomes void. Further, no party cannot sue the other party for the non-

performance of such contract.

24. Voidable contract on the other hand is a contract which can be

enforceable only at the option of one of two parties to the contract. In this

type of contract, one party is legally authorized to make a decision to

perform or not to perform his part. The aggrieved party is independent to

choose the action. The right may arise because the consent of the

concerned party is influenced by coercion, undue influence, fraud or

misrepresentation, etc. The contract becomes valid until aggrieved party

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does not cancel it. Moreover, the party aggrieved has the right to claim

damages from the other party.

25.Similarly, term 'fraud' has not been defined in Act 1955. The same

has been defined in Section 17 of Contract Act,1872 as follows:

“17. ‘Fraud’ defined.—‘Fraud’ means and includes any of the following

acts committed by a party to a contract, or with his connivance, or by his

agent1, with intent to deceive another party thereto or his agent, or to

induce him to enter into the contract:—

(1) the suggestion, as a fact, of that which is not true, by one who does

not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of

the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be

fraudulent.

Explanation.—Mere silence as to facts likely to affect the

willingness of a person to enter into a contract is not fraud, unless the

circumstances of the case are such that, regard being had to them, it is

the duty of the person keeping silence to speak2, or unless his silence, is,

in itself, equivalent to speech.”

26.The issues which evolve for consideration are “whether plaintiff

duly pleaded that marriage of parties was got solemnized by playing fraud

and burden to plead and prove the same was upon plaintiff?” Secondly, “

whether non disclosure by parents of appellant that she was having

hearing deficiency and used a hearing aid either before marriage or at time

of marriage, is a ground on which a decree of nullity of marriage, can be

passed”.

27.Marriage in Hindus is a pious social obligation which is required to

be performed for continuation of society in an orderly manner and also for

satisfaction of physical desire of men and women. Apex Court in

Hirachand Srinivas Managaonkar V. Sunanda, 2001 (4) SCC 125 has

therefore observed that object of Act 1955 is to maintain marital

relationship and not to encourage snapping of such relationship.

Following was observed in paragraph 16 of aforesaid judgement:

“At the cost of repetition it may be stated here that the object and

purpose of the Act is to maintain the marital relationship between the

spouses and not to encourage snapping of such relationship.”

28.In the present case, plaintiff is a Doctor whereas, appellant has

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obtained her Doctrate Degree i.e. Ph.D. in Economics. Upon perusal of

plaint, we find that there is no averment in the entire plaint as to how

marriage of parties was finalized. It is only in the testimony of witnesses,

manner in which marriage of parties came to be finalized, has been

unearthed.

29.Learned counsel for appellant took us to testimony of P.W.1

Shailendra and thereafter, to testimony of D.W.1 Dr. Prachi and D.W.2.

Ramesh Kala, father of appellant. From perusal of statement-in-

chief/examination-in-chief of D.W.2, we find that marriage on behalf of

plaintiff was initiated and finalized by his father. However, for reasons

best known to plaintiff, he did not adduce his own father, who admittedly

had finalized marriage between parties on his behalf to explain as to how

marriage between parties came to be finalized.

30.Secondly, as noted above, plaint of marriage petition filed by

plaintiff is completely silent as to how 'fraud' was committed upon

plaintiff. Order VI Rule 4 C.P.C. clearly provides for the manner in which

pleadings are to be made where fraud is alleged. For ready reference

Order VI Rule 4 C.P.C. is quoted herein under:

“Particulars to be given where necessary" – In all cases in which the

party pleading relies on any misrepresentation, fraud, breach of trust,

willful default, or undue influence, and in all other cases in which

particulars may be necessary beyond such as are exemplified in the

forms aforesaid, particulars (with dates and items if necessary) shall be

stated in the pleading.”

31.Unfortunately, we find that Court below while deciding divorce

petition completely overlooked aforesaid facts. Even though plaint is

completely silent regarding manner in which fraud was played, Court

below has proceeded to consider this issue. It has completely lost sight of

the fact that no amount of evidence can be looked into until and unless a

fact has been pleaded. Once the factum regarding fraud having been

played in settlement of marriage, was sought to be relied upon by

plaintiff, it was incumbent upon him to categorically plead as to how

marriage came to be finalized between parties and by whom by giving

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exact date and specific particulars. The absence of material facts in this

regard by plaintiff in plaint clearly establish that plaintiff did not approach

Court below with clean hands.

32Having taken notice of Section 12 of Act 1955, we repeatedly asked

learned counsel for plaintiff as to how ground pleaded by plaintiff for

annulment of marriage could be covered under section 12 of Act 1955.

Learned counsel for plaintiff took us through impugned judgement and

highlighted with emphasis on observations made by Court below,

whereby Court below erroneously shifted burden upon appellant to

establish that fraud was not played. It is well established that it is always

the positive fact which is required to be proved. Therefore, burden was

upon plaintiff himself to plead and prove the element of fraud in

solemnization of marriage of parties. Plaintiff has to stand on his own legs

and he cannot derive benefit from weakness in the defence of defendant.

33.When analysed from aforesaid point of view, we find that Court

below has erroneously shifted burden to prove fraud upon appellant.

Furthermore, after having perused section 12 of Act 1955, we find that

ground pleaded by plaintiff for grant of a decree of nullity of marriage

solemnized between parties is not covered within ambit and scope of

section 12.

34.When confronted with the facts as noted above, learned counsel for

plaintiff could not urge any thing new but supported impugned judgement

on the strength of findings and observations contained therein.

35.First Appeal No. 107 of 2016 (Shailendra Kumar Vs. Prachi) has

been filed by plaintiff Shailendra Kumar challenging the findings

recorded by Court below on Issue Nos. I, II and III. Learned counsel for

plaintiff did not press this appeal. Consequently, same is liable to be

dismissed.

36.First Appeal No. 157 of 2016 (Dr. Prachi Sharma Vs. Dr. Shailendra

Kumar) which has been filed challenging order dated 24.11.2008,

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whereby application under section 24 of Act 1955 filed by defendant

appellant has been allowed only to the extent of granting litigation

expenses of Rs. 10,000/- and review petition seeking review of order

dated 24.11.2008, has been dismissed vide order dated 6.2.2009, we find

that the short questions are involved in above appeal is “whether appellant

is not entitled to any maintenance under section 24 of Act 1955” and

“whether denial of same to appellant by Court below is justified or not”.

37.From perusal of impugned order dated 24.11.2008, we find that

Court below has refused to award interim maintenance to appellant solely

on ground that she has already been awarded maintenance at the rate of

Rs. 2,000/- per month in maintenance case. Consequently, there is no

necessity to award further maintenance to appellant.

38.Section 24 of Act 1955 provides for payment of interim

maintenance during pendecny of matrimonial dispute. For ready reference

Section 24 of Act 1955 is reproduced herein below:

“24 Maintenance pendente lite and expenses of proceedings :-Where

in any proceeding under this Act it appears to the court that either the

wife or the husband, as the case may be, has no independent income

sufficient for her or his support and the necessary expenses of the

proceeding, it may, on the application of the wife or the husband, order

the respondent to pay to the petitioner the expenses of the proceeding,

and monthly during the proceeding such sum as, having regard to the

petitioner's own income and the income of the respondent, it may seem

to the court to be reasonable:

[Provided that the application for the payment of the expenses of the

proceeding and such monthly sum during the proceeding, shall, as far

as possible, be disposed of within sixty days from the date of service of

notice on the wife or the husband, as the case may be.]”

39.There is no prohibition contained in section 24 of Act 1955

whereunder maintenance can be denied on account of an order of

maintenance already passed under section 125 Cr.P.C. To the contrary, it is

provided that maintenance awarded under section 125 Cr.P.C. shall be

adjusted in the amount of maintenance awarded under section 24 of Act

1955.

40.Learned counsel for appellant submits that marriage of parties was

solemnized on 27.11.2002 in accordance with Hindu Rites and Customs.

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After marriage, appellant came to her marital home on 29.11.2002.

plaintiff is alleged to have dropped appellant at her brother's place in New

Delhi on 1.12.2002. As such, appellant has been forced to live separately

from plaintiff and with her parents. Consequently, appellant is not residing

separately out of her own will. Appellant is legally wedded wife of

plaintiff. As such, plaintiff is legally and morally bound to maintain

appellant. She is not having any independent source of income and

therefore entitled to maintenance under section 24 of Act 1955

irrespective of order passed under section 125 Cr.P.C.

41.Plaintiff contested application filed by appellant under section 24 of

Act 1955. However, he admitted that his salary is Rs. 37422/-. He also

detailed deductions made from his salary. It was further pleaded by

plaintiff that since appellant has already been awarded maintenance under

section 125 Cr.P.C. , there is no legal right of appellant to seek

maintenance under section 24 of Act 1955.

42.Court below considered the case of parties. Vide order dated

24.11.2008, it only allowed litigation expenses. Upon perusal of order

dated 24.11.2008, we find that Court below has erred in law in refusing to

grant interim maintenance to appellant. We further find that Court below

has rejected review application filed by appellant on the ground that there

is no legal error nor there is any error much less an error apparent on the

face of record necessitating review of order dated 24.11.2008. In our view

Court below has failed to appreciate that jurisdiction under section 24 of

Act 1955 is not circumferenced by section 125 Cr.P.C. As noted above,

any amount of maintenance awarded under section 125 Cr.P.C. shall be

adjusted in the amount of maintenance awarded under section 24 of Act

1955. Consequently, First Appeal No. 157 of 2016 (Dr. Prachi Sharma Vs.

Dr. Shailendra Kumar) is hereby partly allowed. Order dated 24.11.2008,

passed by Principal Judge, Family Court, Allahabad is modified.

Appellant shall be entitled to monthly maintenance at the rate of Rs.

12,000/-. The amount of maintenance awarded under section 125 Cr.P.C.

18

i.e. Rs. 2,000/- shall be adjusted in aforesaid amount. Plaintiff is directed

to pay aforesaid amount to appellant from date of application till

31.8.2019. Since we have already modified the order dated 24.11.2008,

there is no necessity to decide validity of order dated 6.2.2009, whereby

review petition filed by appellant, seeking review of earlier order dated

24.11.2008 has been rejected.

43.First Appeal No. 40 of 2011 (Prachi Vs. Shailendra Kumar) is

hereby allowed. Judgement dated 4.12.2010 and decree dated 22.12.2010

passed by Vijai Kumar Khatri, Principal Judge, Family Court, Allahabad

in Matrimonial Case No. 37 of 2002 (Shailendra Kumar Vs. Prachi) is

hereby set aside and aforesaid marriage petition is dismissed.

44.First Appeal No. 107 of 2016 (Shailendra Kumar Vs. Prachi) is also

dismissed.

45.First Appeal No. 157 of 2016 (Dr. Prachi Sharma Vs. Dr. Shailendra

Kumar) is partly allowed and judgement and order dated 24.11.2008,

passed by Principal Judge, Family Court, Allahabad is modified and order

dated 6.2.2009, dismissing review of the appellant, is hereby set aside and

it is provided that the appellant Dr. Prachi Sharma is entitled to monthly

maintenance of Rs. 12,000/-. The amount of maintenance awarded under

section 125 Cr.P.C. i.e. Rs. 2,000/- shall be adjusted in the aforesaid

monthly maintenance granted by this Court under section 24 of Act 1955.

Aforesaid maintenance shall be payable from the date of application till

31st August, 2019. The entire amount, as directed, shall be paid directly to

the appellant by husband Dr. Shailendra Sharma or deposited in the

Family Court. If amount is deposited by plaintiff Shailendra Kumar, same

shall be released by Court below without any further delay. In case of

default, it shall be open to appellant to take execution proceedings for

recovery. It is provided that cost in all appeals is made easy.

Order Date :- 13.9.2019

Arshad