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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8572 OF 2013 [Arising out of Special Leave Petition (Civil)  

No.26148 of 2011]

BHEEMRAYA ...APPELLANT

VERSUS

SUNEETHA ...RESPONDENT

ORDER  

Delay condoned.  

Leave granted.  

We  have  heard  the  learned  counsel  for  the  

parties at length.

Undoubtedly, both the parties were minor at  

the time when the respondent claims that they were  

married.  She further alleges that she gave birth  

to a daughter when the parties lived together as  

husband and wife.   

Respondent filed a suit with a prayer that the  

appellant be restrained from marrying  anyone else  

during her life time.  She also filed another suit  

claiming that she and her daughter are entitled to  

1/3rd share of the property owned by the appellant  

and  his  father.   She,  therefore,  prayed  for  a  

perpetual injunction restraining the appellant and  

his father from alienating the suit property.  

...2/-

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In the two suits filed by the respondent, the  

trial Court in spite of recording findings of fact  

that parties were minor at the time of the alleged  

marriage,  proceeded  to  decide  the  two  suits  on  

merits.  The first appellate Court affirmed the  

findings of the trial Court in both the suits.   

The  respondent  filed  two  Regular  Second  

Appeals in the High Court.  The finding that the  

plaintiff (respondent) was minor at the time of the  

marriage was affirmed by the High Court.  However,  

the  High  Court  held  that  since  the  

plaintiff/respondent was a minor, at the time when  

the suits were filed, they were not maintainable.  

Therefore, the trial Court had no jurisdiction to  

decide the same on merits.  The findings recorded  

on  merits  were  set  aside.   The  Regular  Second  

Appeals were partly allowed as indicated above.  

The respondent had also filed a petition under  

Section 9 of the Hindu Marriage Act, 1955, which  

was dismissed.  She then filed Misc. First Appeal  

No.31408 of 2009, in which the High Court passed  

the impugned order,  dismissing  the  same.  Whilst  

...3/-

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dismissing the appeal, the High Court held that in  

view of Section 5(iii) of the Hindu Marriage Act,  

1955, clearly, the marriage would be void.  In view  

of this finding, the High Court further observed  

that it would be open to the respondent to initiate  

criminal  proceedings  for  prosecution  of  the  

appellant for an offence punishable under Section  

376 of the Indian Penal Code.  In our opinion, the  

High  Court  was  not  justified  in  making  such  

observations.   The  only  relief  sought  by  the  

respondent was for restitution of conjugal rights  

and maintenance for the child.  The High Court had  

rightly observed that even an illegitimate child  

would be entitled to maintenance.  The High Court  

failed to appreciate that essentially it was seized  

of a matrimonial dispute between the parties.  The  

attitude of the Court  in  such  matters  should be  

to encourage and persuade the parties to reconcile.  

It  was  an  ideal  case  to  be  referred  to  

conciliation/mediation.  Having  perused  all  the  

orders in various proceedings between the parties,  

we do not see any reference to any effort made by  

the  Court  to  adopt  such  a  course. Instead the  

...4/-

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observations made in Paragraph 4 of the impugned  

judgment  would  push  the  parties  further  into  

conflict.   Paramount  duty  of  the  Court  in  

matrimonial matters should be to restore peace in  

the family.  The attitude should not be to further  

encourage the parties to litigate.  Only as a last  

resort  the  Court  ought  to  decide  the  

suit/proceeding  on  merits.   Therefore,  we  are  

unable to approve the observations made by the High  

Court in the impugned judgment.  

In  that  view  of  the  matter,  the  appeal  is  

allowed; the observations made in Para 4 of the  

impugned judgment are deleted.   

No costs.   

....................,J. (SURINDER SINGH NIJJAR)

..............................,J. (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI SEPTEMBER 23, 2013