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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4890 OF 2017 (Arising out of S.L.P.(C) No.23492 of 2015)

BHAGWATI @ REENA Appellant(s)

          Versus

ANIL CHOUBEY Respondent(s)

O R D E R

Leave granted.

2. This  appeal  is  preferred  by  the

appellant/wife  questioning  the  order  dated

06-05-2015  passed  by  the  High  Court  of  Madhya

Pradesh  at  Jabalpur  in  First  Appeal  No.  623  of

2005 whereby the High Court confirmed the order

passed  by  the  Family  Court  dated  17-06-2005  in

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Civil  Suit  No.24-A/2002  declaring  the  marriage

between  the  appellant/wife  and  the

respondent/husband as void ab initio on account of

appellant/wife  having  not  completed  18  years  of

age at the time of marriage.  

3. The  respondent/husband  filed  Civil  Suit

No.  24-A/2002  on  the  file  of  the  Presiding

Officer, Family Court seeking declaration of the

marriage  between  the  parties  solemnized  on

07-07-1999  as  null  and  void  and  sought  for  a

decree of annulment.  

4. It  is  the  specific  case  of  the  husband

that  under  the  threat  of  registering  a  false

complaint  he  was  forced  to  marry  the

appellant-wife. Several complaints were given by

her and he was put to lot of stress and coercion.

It is also his specific case that their marriage

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was not consummated willfully. There was a threat

to  his  life  at  the  hands  of  his  wife  and  her

family after the marriage. He has also stated that

at the time of marriage, his wife was less than 18

years  of  age  and  hence  sought  for  annulment  of

marriage.  

5. In  response  to  this,  the  appellant-wife

stated that marriage was not performed by exerting

pressure  and  the  same  was  solemnized  with  the

sheer will and consent of the husband. She stated

that marriage was consummated between the parties

and in fact the respondent-husband has contracted

a second marriage with another girl named Anita

and to conceal this offence, he has come up with

the Suit seeking annulment of marriage with the

appellant. According to her, she was major at the

time of her marriage with the respondent-husband.

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6. The  trial  Court,  after  a  full  fledged

trial, formed the opinion that the appellant-wife

was aged less than 18 years at the time of her

marriage which violates the provisions of Section

5(iii) of the Hindu Marriage Act, 1955. The trial

Court  has  also  come  to  the  conclusion  that  the

respondent-husband  has  proved  that  his  marriage

with  the  appellant-wife  was  held  by  force.

Accordingly, the trial Court annulled the marriage

and decreed for the dissolution.

7. Aggrieved by the same, the appellant-wife

carried the matter to the High Court. Before the

High Court she filed an application under Order 41

Rule  27  of  CPC  to  place  birth  certificate  as

additional evidence. Very interestingly, the High

Court has delivered the Judgment only harping on

the age of the wife and further refused to receive

the document i.e. Birth Certificate. There was a

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finding recorded by the High Court with regard to

the age of the wife that she accepted that she was

adult on 28-06-1999 being the date on which her

marriage was fixed with the respondent and she was

short of 8-9 days to complete 18 years, but on the

date  of  her  marriage  i.e.  7.7.1999  she  was  18

years old.

8. We  have  heard  learned  counsel  for  the

rival parties and perused the record as well. In

our considered view, the High Court has clearly

erred  in  reaching  to  the  conclusion  that  the

appellant was a minor at the time of her marriage,

whereas  the  appellant  has  categorically  stated

that she was above 18 years old on the date of

marriage. It is an admitted position of both the

parties that the husband was major at the time of

marriage and he only sought annulment of marriage.

Here it is pertinent to have a look at Section

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12(1)(c)  of  the  Hindu  Marriage  Act,  1955  which

reads thus:

“that  the  consent  of  the petitioner,  or  where  the  consent of the guardian in marriage of the petitioner  was  required  under section 5 as it stood immediately before  the  commencement  of  the Child  Marriage  Restrain (Amendment) Act, 1978 (2of 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;”

9. It  is  no  more  res  integra that  child

marriages are voidable at the option of the minor

spouse at the time of marriage. Therefore it is

clear from the reading of the said Section that

only minor spouse has a right to seek annulment of

marriage.  In  this  case,  admittedly  it  is

respondent-husband  who  sought  annulment  of

marriage and he was major at the time of marriage.

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10. We are, therefore, unable to agree with

the  findings  and  discussion  made  by  the  High

Court. The High Court has sidetracked and diluted

the  main  issue  involved  in  the  appeal  i.e.

annulment  of  marriage  sought  by  the

respondent-husband  on  the  ground  of  fraud  and

coercion and went on giving findings on the aspect

of age of the wife. In fact age of the wife is one

of the grounds raised by the husband. Even before

us also the thrust of the argument is on that.

11. Hence we feel that in order to meet the

ends  of  justice  this  matter  should  be  remanded

back to the High Court for fresh consideration in

accordance with law.

12. Accordingly the matter is remanded to the

High Court for fresh consideration in the proper

perception  of  law  uninfluenced  by  any  of  the

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observations made by us. As the Suit is of the

year  2000,  the  High  Court  may  dispose  of  the

appeal as expeditiously as possible.

13. The appeal stands disposed of without any

order as to costs.    

                   ........................J.                             (N.V. RAMANA)

                         ........................J.                                (PRAFULLA C. PANT)

New Delhi, March 01, 2017

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ITEM NO.6                 COURT NO.11               SECTION IVA                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).  23492/2015 (Arising out of impugned final judgment and order dated  06/05/2015  in FA No. 623/2005 passed by the High Court Of  M.P. . At Jabalpur) BHAGWATI @ REENA                                   Petitioner(s)                                 VERSUS ANIL CHOUBEY                                       Respondent(s) (with appln. (s) for exemption from filing O.T.) Date : 01/03/2017 This petition was called on for hearing today. CORAM :           HON'BLE MR. JUSTICE N.V. RAMANA          HON'BLE MR. JUSTICE PRAFULLA C. PANT For Petitioner(s)

Dr. Rajesh Pandey, Adv.                      Mr. Nitin Bhardwaj,Adv.                      Mr. Abhishek Pandey, Adv. For Respondent(s)

 Mr. V.K. Shukla, Adv.   Ms. Kamlesh Tamrakar, Adv   Mr. Vijay Lakshmi, Adv.

                     Mr. Amit Gaurav Singh,Adv.                                 UPON hearing the counsel the Court made the following                             O R D E R

Leave granted. The  appeal  is  disposed  of  in  terms  of  the  signed

reportable order.

      [SUKHBIR PAUL KAUR] [S.S.R. KRISHNA]            A.R.-CUM-P.S.     ASSISTANT REGISTRAR

(Signed reportable order is placed on the file)