Allowed

Kheer Bai v. Padman Patel

Chhattisgarh HC5 Aug 2010FAM/130/2008

Case brief

AI extract

What is this about?

Division Bench held that Family Court exceeded jurisdiction by decreeing annulment of marriage under Section 11 and awarding permanent alimony under Section 25 when the suit was filed for divorce under Section 13 without separate applications for annulment or alimony. Appeal allowed, decree set aside.

What did the court decide?

Judgment and decree impugned set aside. Parties to bear their own costs.

Kheer Bai Vs Padman Patel — Matrimonial and Divorce | Chhattisgarh HC (2010)

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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DIVISION BENCH

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CORAM;

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HON'BLE MR. T.P. SHARMA & HQN'BLE MR. R. L. JHANWAR. JJ.

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F.AJM^ N0. 130 OF 2008

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APPELLANT

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Kheer Bai W/o Padman Patel, D/o Ratiraai Patel, aged about 27 years, Caste Aghariya, Occupation Nofhiag, R/o Village Lebda, Present R/o Village Ainaldiha, PoMce Station Kotraroad, Raigarh, TahsU ond District Raigarh (C.G.).

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VERSUS

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RESPQNDENT

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Padmaa Patel S/o Balkdshna Patel @ Munu, aged about 40 years, Caste Aghariya, Occupation 'Agriculture aiid Busiaess of MUk/ R/o ViUage Lebda, PoUce Station Kotraroad, Raigarh, TahsU and District Raigarh (C.G.).

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F.A.IMt UNDER SECTION 19 OF THE FAMILY COURTS ACT.

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1984.

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Present:- Shri M.K. Bhaduri, Advocate for fhe appellant. Shri Ashish Gupta, Advocate for fhe respondent.

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ORAL-JUDGBMBNT

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(Passedon 05/08/2010)

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The Jollowin^ jyd^ment of the Court was passed by T.Po

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Sharina, J:-

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Challenge in this appeal is to the judgment and decree dated 18/11/2008 passed by Judge, Family Court, Raigarh in Civil Suit No. 69-A/2007 whereby and where under learned Judge, Family Court has decreed ,the suit for annulment of marriage solemnized between the parties and awarded permanent alimony under Section 25 of the Hindu Marriage Act, 1955 (in short 'the Act).

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'^••^y

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^^.A^^v'^

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Judgment and decree is impugned on the ground that while decreeing the suit Court below has not considered the legality of marriage and thereby committed an illegality likewise Court below has not considered the requirement of appellant in awarding the permanent alimony and thereby committed an illegality.

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As per pleading of the parties, parties were legally wedded spouse. Petition for dissolution of marriage by a decree of divorce has been filed by the appellant under Section 13 of the Act on the ground of cruelty which has been denied by the respondent. After providing an opportunity of hearing to the parties leamed Judge Family Court arrived at a finding that marriage between parties was in violation of Clause 1 of Section 5 of the Act and was void marriage in accordance with Section 11 of the Act and thereby passed the decree for annulment of marriage while passing such decree Judge Family Court has also awarded permanent alimony of Rs. 20,000/- under Section 25 of the Act.

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Leamed counsel for the parties are heai'd.

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Judgment and decree impugned perused.

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Learned counsel for the appellant submits that Judge^Family Court was required to pass the decree for dissolution of marriage by a decree of divorce in terms of Section 13 of the Act and not under Section 11 of the Act but by passing the decree of annulment Court below has exceeded its jurisdiction and Court below has not awarded adequate alimony for future maintenance to the respondent.

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On the other hand, learned counsel for the respondent opposed the appeal and submits that Court below has rightly granted decree for annulment of marriage but without any application under Section 25 of the Act^ Court below has awarded the permanent alimony of Rs.

m M

^' v^i^~^'\ ^

20,0007- and aforesaid part of the judgment and decree is not sustainable under the law.

In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence available on record. On close scrutiny of the evidence we are of the considered view that evidence adduced on behalf of the parties are sufficient for drawing an inference that both the parties have solemnized the marriage in violation of Claus^e 1 of Section 5 of the Act and Family C^urt was competent to declare the annulment of the marriage at the option of the parity under Section 11 of the Act. In the present case appellant has not filed any application under Section 11 of the Act for annulment of marriage but has filed specific application for dissolution of marriage by a decree of divorce m accordance with Section 13 of the Act. In these circumstances Court below was not competent to award the decree of annulment of marriage under Section 11 of the Act and by passing such decree Court below has exceeded its jurisdiction. As regard the award of permanent alimony under Section 25 of the Act is concemed, scope of Section 25 of the Act is very limited and Court is competent to award permanent alimony only on the application made to it at the time of passing any decree or at any time subsequent there to but in the present case appellant has not filed any application at the time of passing such decree or subsequent there to therefore Court below was also not competent to award such alimony in violation of Section 25 of the Act. We are of the considered view that Court below has exceeded its jurisdiction in passing decree for annulment of marriage and for pei-manent alimony. Consequently, appeal is allowed. Judgnient and decree impugned is hereby set-aside . Parties shall bear their on costs.

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Advocate fee as per schedule.

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Decree be drawn up accordingly.

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Sd/T.P. Sharma Judge

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Sd/~ ^L. Jhanwar Judge

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?/-

Kheer Bai v. Padman Patel

Case brief

What is this about?

What did the court decide?

Kheer Bai v. Padman Patel

Case brief

What is this about?

What did the court decide?

What the court decided

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