Dismissed

K.K.Dileepkumar v. Salenakumari @ Shalini

Kerala HC27 Feb 2018Mat.Appeal/187/2007

Case brief

AI extract

What is this about?

The High Court dismissed the wife's mother's appeal against the Family Court's decree dismissing a petition to annul a marriage alleged to be contracted through force and fraud. The Court held the petition was not time-barred under Section 4 of the Limitation Act and found the family court rightly concluded the evidence failed to prove force or fraud.

What did the court decide?

Appeal dismissed. No costs awarded.

K.K.Dileepkumar Vs Salenakumari @ Shalini — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL &

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THE HONOURABLE MR. JUSTICE A.M.BABU

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TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

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Mat.Appeal.No. 187 of 2007

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OP(HMA) 376/2005 of FAMILY COURT, THIRUVALLA DATED 28-11-2006

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APPELLANT/APPELLANT

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K.K.DILEEPKUMAR, S/O.P.K.KARUNAKARAN, AGED 28 YEARS, KARUNALAYAM VEEDU, MUTHOOR P.O., KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK,, PATHANAMTHITTA DISTRICT.

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BY ADV.SRI.PHILIP MATHEW

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RESPONDENT/RESPONDENT :

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SALENA KUMARI @ SHALINI, D/O.KARUNAKARAN, AGED 41 YEARS, KUNNATH VEEDU, PERINGARA P.O.,, CHETHENKERRY MURI, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.N.HARIDAS BY ADV. SRI.P.N.SASIDHARAN BY ADV. SRI.SAMSON THOMAS DAVIS

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27-022018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.HARILAL & A.M.BABU, JJ. - - - - - - - - - - - - - Mat.Appeal 187 of 2007 - - - - - - - - - - - - Dated : 27^th February, 2018

JUDGMENT

A.M.Babu, J

1.The appellant moved a petition before the family court. The petition was for the relief to annul his marriage with the respondent. The grounds were fraud and force. The court below dismissed the petition. Hence the appellant is in appeal.

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2.The case of the appellant is briefly stated below: He had previous acquaintance with the respondent. They became friends. She used to take loans from him. He was taken by her to her house as if to attend the marriage of her niece. At her house he was asked to marry her. He was told that he had relationship with her for five years. She also insisted on to marry her. She promised to keep the marriage a secret from his people. Under compulsion and out of fear he did what all he was told to do. He was taken to a temple. He and the

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respondent garlanded each other. He tied 'tali' around her neck. Photographs were taken. A register was signed. All these were done by him under compulsion. It all happened on 11.6.2004. On the same day itself he was allowed to go home. There was no cohabitation. Later she blackmailed him with the photographs and extracted money from him. The mock marriage conducted on 11.6.2004 is liable to be annulled on the grounds of fraud and force.

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3.The respondent appeared before the family court. She filed objection. Her contentions go as under : Her marriage with the appellant was solemnized on 11.6.2004. All religious ceremonies were performed. The attendees of the marriage were given feast. Every ceremony was photographed. The marriage register was signed by both the spouses. The appellant came to the temple with cloth (pudava). He married her with full consent. The marriage was consummated. The contrary allegation is false. The parties lived as husband and wife. She never blackmailed him or

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extracted money from him. He was paying her money as his wife. The petition itself is the result of his mother's attempt to separate the couple.

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4.Both sides adduced evidence before the family court. PWs1 to 8 were examined on the side of the appellant. Exts A1 to A5 were marked on his side. RWs1 and 2 were examined and Exts B1 to B5 were marked on the other side. Exts C1 and C2 were also marked.

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5.The family court dismissed the petition of the appellant holding that no ground was proved and that the petition was barred by the law of limitation.

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6.We heard Sri.Philip Mathew and Sri.N.Haridas, the learned counsel for the appellant and the respondent respectively.

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7.The appellant sought relief under Sec.12(1)(c) of the Hindu Marriage Act (for short the H.M.Act).

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Force and fraud were the allegations raised to get the marriage annulled by a decree of nullity. It is not clear from the pleadings of the appellant whether he was admitting solemnization of the marriage. He should stick on to a stand whether there was solemnization of marriage or not. If there was no solemnization of marriage, no petition under Sec.12(1) of the H.M. Act would lie. If there was no solemnization of marriage, the remedy of the appellant was to file a suit before the family court for a declaration that he never married the respondent. The learned counsel for the appellant submits that solemnization of marriage is disputed. If that be so, we can stop this judgment here and dismiss the appeal.

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8.But we do not do that. We proceed as if there was solemnization of marriage. If there was force or fraud in conducting the marriage, the appellant would be entitled to a decree under Sec.12(1)(c) of the H.M.Act, provided he came to the court for the relief within the period of limitation. One of the reasons stated by the family court to non-

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suit the appellant was that his petition was barred by limitation. We shall go into that aspect first.

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9.The marriage was on 11.6.2004. The petition was filed on 13.6.2005. Therefore the family court found that there was a delay of two days in filing the petition. The appellant contended that he could file the petition only on 13.6.2005 as 11.6.2005 and 12.6.2005 were holidays, being second Saturday and Sunday respectively. The family court did not accept or reject the said contention. It found that if those days were holidays, the petition should have been filed on 10.6.2005.

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10.The court can take judicial notice of the calender to know whether 11.6.2005 and 12.6.2005 were holidays. We checked the calendar and found that 11.6.2005 was a second Saturday and 12.6.2005 was a Sunday. Both days were holidays. The next working day was 13.6.2005. On that day itself came the petition of the appellant.

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11.We refer to the Limitation Act. Sec.4 provides that where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Sec.4 applies to every case where a prescribed period is provided for any suit, appeal or application. Sec.2(j) of the Limitation Act defines 'period of limitation'. It means the period of limitation prescribed for any suit, appeal or application by the schedule to the Limitation Act. Sec.2(j) states further that 'prescribed period' means the period of limitation computed in accordance with the provisions of the Limitation Act. The period of limitation for a petition under Sec.12(1)(c) is not prescribed by the Limitation Act. It is prescribed by the H.M.Act. That provision is Sec.12(2)(a) of the H.M.Act. Sec.12(2)(a) provides, inter alia, that no petition under Sec.12(1)(c) for annulling marriage shall be entertained if the petition is presented more

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than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered. What Sec.12(2)(a) does is to prescribe a period of limitation. Going by the pleadings, the appellant knew the alleged force or fraud on the date of the marriage itself. Therefore the period of limitation starts to run from the date of the marriage itself. To complete the discussion we have to refer to Sec.29(2) of the Limitation Act. It provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule to the said Act, the provisions of section 3 shall apply as if such period were the period prescribed by the schedule. Sec.29(2) provides further that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (both inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special

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or local law. The H.M.Act, Sec.12(2)(a) precisely, which prescribes a period of limitation for a petition under Sec.12(1)(c) does not exclude expressly, or even impliedly, any of the provisions of the Limitation Act. Therefore Sec.4 of the Limitation Act applies to a petition filed under Sec.12(1)(c) of the H.M.Act. It was to be filed at least on 11.6.2005. But that day was a holiday. The next day too was a holiday. The next working day was 13.6.2005. The petition was filed on that day. Therefore the petition came within the period of limitation. The petition was not barred by the law of limitation. The contrary finding of the family court was wrong. We set it aside.

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12.Now, on to the merits of the case. The appellant had a very lengthy story to tell. He contended that the respondent came to his shop to have an acquaintance with him. It was also contended that she visited him and collected amounts from him oft. According to him, she wanted him to come in a taxi to Changanassery to meet her. As the story

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goes, he went to Changanassery in a taxi car and in the same vehicle and with the respondent he reached her house. He was made to believe that he was taken to her house to attend the marriage of her niece. It is also his contention that he did not see in that house any arrangement for a marriage. It was also contended that a person introducing himself as the uncle of the respondent told the appellant that he should marry the respondent as there was relationship between the two for five years. The appellant contends that he was taken to a temple and he did what all he was forced to do. He garlanded her. Tied 'tali' on her neck. The ceremonies were photographed. A register was signed. It is also contended that there was no cohabitation ever. Going by his case, he was allowed to go home on the same day and he left.

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13.All the contentions of the appellant were denied by the respondent. Both parties adduced evidence. The appellant swore in court as PW1. He did not examine any witness to prove the force or fraud.

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The taxi driver in whose vehicle the appellant allegedly reached Changanassery and from there to the house of the respondent was examined as PW3. His examination was only to prove the journey of the appellant in the taxi car. PW3 was examined as a witness not to prove that the marriage was vitiated by force and fraud. The family court did not find the evidence of the appellant acceptable. We are also of the same view. The story of the appellant itself appears to us as a bad script. We have seen the photographs exhibited in the case. The persons photographed include the appellant and the respondent. The possibility of taking snaps of every ceremony of a marriage conducted by force is less. The photographs suggest that the marriage was attended by many invitees. The invitees were given feast also. We saw such photographs too. Celebrating a fraudulent marriage by force in such a manner is not a possibility or a probability. An entry was made in the register kept in the temple to evidence the solemnization of the marriage. We see in the photographs the

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priest blessing the man and the lady. The only plus point we see in favour of the appellant is that his parents did not attend the marriage. That by itself is not a ground to find the marriage to be vitiated by force or fraud. The respondent does not have a case that the parents of the appellant knew about the marriage. It appears to us that the appellant himself wanted the marriage to be solemnized without the knowledge of his parents. The image of the appellant in the photographs produced in court do not suggest that he was not a willing party to the marriage. Ext C1 is the marriage register. One of the witnesses to the marriage shown therein is appellant's uncle Viswanathan. The appellant did not choose to examine Viswanathan to prove that the person signed the register as Viswanathan was not the uncle Viswanathan. Instead, the appellant examined PW8 who was another Viswanathan. In these circumstances, we do not find any reason to disturb the finding of the family court which had the added advantage of seeing the witnesses and watching their

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demeanour. We find little scope for interference with the finding of the family court that the appellant did marry the respondent. The appeal fails. The same deserves only a dismissal. However, we do not tax the appellant with costs since the litigation is between himself and his wife

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14.Dismissed. No costs.

Sd/-

K.HARILAL Judge

Sd/-

A.M.BABU Judge

Mrcs/28.2

/True copy/

Sd/- P.S.To Judge

K.K.Dileepkumar v. Salenakumari @ Shalini

Case brief

What is this about?

What did the court decide?

K.K.Dileepkumar v. Salenakumari @ Shalini

Case brief

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What did the court decide?

What the court decided

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