Dismissed

Shaikh Nazir., v. Parvimbi Shaikh.

Bombay HC27 Sept 2021SA/52/2019

Case brief

AI extract

What is this about?

This Second Appeal concerned a challenge to the dismissal of a petition for annulment of marriage under Family Laws of Goa. The High Court held that the petition was barred by limitation as the cause of action arose in 2007 but the petition was filed in 2013, and rejected the issue regarding the earlier withdrawn suit due to the expiration of the limitation period.

What did the court decide?

The appeal was dismissed holding the petition for annulment of marriage was barred by limitation under Article 22 of the Family Laws and Order XXIII Rule 4(1)(b) of the CPC.

Shaikh Nazir., Vs Parvimbi Shaikh. — Matrimonial and Divorce | Bombay HC (2021)

¶1

6 SA-52-2019..DOC

¶2

Meena

¶3

IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 52 OF 2019

¶4

SHAIKH NAZIR …Appellant

¶5

Versus

¶6

PARVIMBI SHAIKH …Respondent

¶7

Mr. Iftikhar Agha and Mr. K. Morajkar, , Advocates for the appellant.

¶8

Mr. S.G. Desai, Senior Advocate with Ms. S. Shelke, Advocate for the respondent.

¶9

CORAM: MANISH PITALE, J. DATED: 27^th September, 2021.

¶10

ORAL ORDER:

¶11

1. By this Second Appeal, the appellant has challenged concurrent orders passed by the two Courts below dismissing a Marriage Petition filed on his behalf for annulment of marriage under Article 1074 of Chapter I, Division I, Sub-Division II of Family Laws of Goa, Daman and Diu.

¶12

2. The petitioner approached the Court of the Civil Judge, Senior Division, Margao, with the aforesaid petition for annulment of marriage contending that the respondent had represented to him that she was a spinster while she was earlier married to another person and the appellant later discovered that at the time when the marriage took place between the parties on

¶13

Page 1 of 7

¶14

27th September, 2021

¶15

6 SA-52-2019..DOC

¶16

25/07/2005, her earlier marriage was still subsisting. It was
further claimed that while the marriage between the parties took
place on 25/07/2005, the two of them lived together for a very
short period and that after a heated argument on 16/08/2005, the
respondent left the matrimonial house, never to return. It was
contended that since the aforesaid fact of earlier subsisting
marriage was suppressed from the respondent, it was in violation
of Article 1073(5) of the Family Laws and under Article 1074 the
appellant was entitled to claim annulment of marriage. In the
petition itself, it was stated that cause of action arose on
15/12/2007 i.e. the date on which the appellant became aware
about the respondent being earlier married and not divorced.

¶17

3. The respondent opposed the said petition, contending that the appellant was always aware about the earlier marriage of the respondent. It was claimed that the said marriage was already dissolved and therefore, there was no ground available for the petitioner to seek annulment of marriage under Article 1074 of the Family Laws.

¶18

4. The aforesaid Court framed issues and the evidence of the parties was taken into consideration. One of the issues framed pertained to the question of limitation. The Court found that even as per the petition filed by the appellant on 25/02/2013, it was conceded that the appellant first came to know about the

¶19

Page 2 of 7 27th September, 2021

¶20

6 SA-52-2019..DOC

¶21

earlier marriage of the respondent on 15/12/2007. It was also
stated in the petition itself that a similar petition was also filed
and withdrawn by the appellant. Taking into consideration the
aforesaid admitted position on facts, the said Court held that the
petition was barred by limitation and that in any case it was
barred by Order XXIII Rule 4 (1) (b) r/w. Section 12 of the Code
of Civil Procedure (CPC), particularly because the earlier petition
was withdrawn unconditionally. Apart from this, the said Court
also rendered findings on the merits of the matter against the
appellant.

¶22

5. Aggrieved by the same, the appellant approached the District Court by filing an appeal. By judgment and order dated 26/03/2019, the appeal was dismissed when the Appellate Court also found that the petition was barred by limitation. A specific reference was made to Article 22 of the Family Laws (Part I) which provides a limitation period of one year from the date of knowledge in such circumstances.

¶23

6. Mr. Iftikhar Agha, learned Counsel for the appellant submitted that substantial question of law arose in the present appeal for the reason that the two Courts below had concurrently erred in taking into consideration documents that were produced by the respondent even when they were not marked as Exhibits and admittedly the respondent never entered the witness box. It

¶24

Page 3 of 7 27th September, 2021

¶25

6 SA-52-2019..DOC

¶26

was further submitted that even if the documents were to be
taken into consideration, which included a Memorandum of
Understanding executed between the respondent and her earlier
husband and a Certificate issued by a Jamat, it would be evident
that when the appellant and the respondent got married, the
earlier marriage was indeed subsisting. On this basis, it was
submitted that the two Courts below failed to appreciate that the
marriage deserved to be annulled under Article 1074 of the
Family Laws.

¶27

7. On the other hand, Mr. Desai, learned Senior Counsel appearing for the respondent highlighted the aspect of limitation and he submitted that the finding rendered by the two Courts below concurrently on the said issue was unassailable and if that be so, the appellant could not be heard in the matter. It was emphasized that an earlier petition was filed by the appellant in the year 2009 for the same relief and it was admittedly withdrawn unconditionally. Even in the subsequent petition, from which the present appeal has arisen, the appellant himself stated that the cause of action arose on 15/12/2007, while the petition itself was filed on 25/02/2013, thereby clearly demonstrated that it was hit by limitation prescribed under Article 22 of the Family Law (Part 1). As the earlier petition filed in the year 2009 was withdrawn unconditionally, it could not lie in the mouth of the appellant that the subsequent petition was maintainable.

¶28

Page 4 of 7

¶29

27th September, 2021

¶30

6 SA-52-2019..DOC

¶31

8. Having heard the learned Counsel for the rival parties and upon perusal of the material on record, it becomes evident that the Courts below were justified in concurrently holding against the appellant on the question of limitation itself. A perusal of the petition for annulment of marriage filed on behalf of the appellant would show that it was admittedly filed on 25/02/2013. Paragraphs 9 and 10 of the said petition read as follows:

¶32

“9.The Petitioner states that the cause of action
arose on the 15th December,2007, on which date, the
Petitioner came to know that the Respondent was
earlier married and not divorced, and the cause is
continuing. The petition is therefore not barred by
limitation.

¶33

10.The Petitioner states that the Petitioner had
filed a similar petition earlier but the same was
withdrawn by the Petitioner.”

¶34

9. The Appellate Court in its judgment in paragraph 10 has observed as follows:

¶35

10. First of all, it is clear from the cross-examination
of the petitioner that on an earlier occasion he filed
the petition for dissolving the marriage through his
power of attorney and the same was withdrawn
unconditionally. The copy of the said petition for
annulment of marriage vide Marriage Petition
No.06/2009 is produced on record at exhibit 26. The
petitioner has totally suppressed this fact in the
present matter and there is absolutely no whisper
about it. Therefore, the second suit on the same
ground is not at all tenable unless withdraw of earlier

¶36

Page 5 of 7 27th September, 2021

¶37

6 SA-52-2019..DOC

¶38

proceedings is allowed with liberty to file a suit
afresh. No order of the Court is produced on record
to show that such liberty was granted to the
petitioner."

¶39

10. The aforesaid material clearly shows that in crossexamination the appellant conceded to the fact that the earlier petition filed for the same relief of annulment of marriage on the very same ground was withdrawn unconditionally. Apart from this, paragraph 9 of the subsequent petition quoted above clearly states that even according to the appellant the cause of action arose on 15/12/2007, while the petition itself was filed on 25/07/2013. It is undisputed that Article 22 of the Family Laws (Part 1) provides as follows:

¶40

“Article 22 : The annulment of marriage on the
ground of mistake is barred by limitation after one
year from the date on which the party under
mistake had knowledge of it or from the date of
coming into force of the present Decree, with the
force of law, if such marriage is contracted prior to
it.”

¶41

11. Applying the said provision to the admitted pleadings and facts as conceded by the appellant, would show that the two Courts below were justified in holding that the petition for annulment of marriage was barred by limitation. Once this Court reaches the said conclusion, there is no need to further consider the matter. No substantial question of law arises in the

¶42

Page 6 of 7 27th September, 2021

¶43

6 SA-52-2019..DOC

¶44

present appeal for exercising jurisdiction under Section 100 of the
CPC. Accordingly, the appeal is dismissed.

¶45

MANISH PITALE, J.

¶46

MEENA VISHAL BHOIR Digitally signed by MEENA VISHAL BHOIR Date: 2021.09.29 11:59:51 +05'30'

¶47

Page 7 of 7 27th September, 2021

Shaikh Nazir., v. Parvimbi Shaikh.

Case brief

What is this about?

What did the court decide?

Shaikh Nazir., v. Parvimbi Shaikh.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State of Goa, Thr. Officer Incharge, Old Goa Police Station, Old Goa., Vs Ajit Bakal.

Francy Agnelo Gonsalves Vs State, Thr. the Police Inspector, Crime Branch, Ribandar and Anr.

V. G. Quenim, a Prop. Concern, of Prasad Keni and 9 Ors. Vs Bandekar Bros. Pvt. Ltd., and 2 Ors.

Amey Dilip Sardessai Vs Gayatri Amey Sardessai

Anant v. Lotlikar., Vs State of Goa, Thr. Chief Secretary and 2 Ors.

Navinchandra Ramakant Catcar and 2 Ors., Vs State of Goa, Thr. Chief Secretary and 14 Ors.