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 JUDGMENT 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.
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:2:
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 JUDGMENTwere set aside. The Regular SecondAppeals 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/-
:3:
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. Theattitude 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/-
:4:
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.