Disposed

Monalisa Mohapatra v. Jitendra Sahoo

Orissa HC9 Feb 2024MATA/174/2022

Case brief

AI extract

What is this about?

A wife alleging she was kidnapped and forcibly garland-married sought annulment; the Family Court dismissed her petition citing the section 12(2)(a)(i) time bar. The High Court, finding no evidence of any Hindu marriage ceremony per section 7, concluded no marriage ever occurred, declared the parties unmarried and set aside the judgment.

What did the court decide?

Impugned judgment set aside; parties declared as never having been married to each other; appeal disposed.

Monalisa Mohapatra Vs Jitendra Sahoo — Matrimonial and Divorce | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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MATA No. 174 of 2022

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….
Monalisa Mohapatra Appellant
-versus-
Jitendra Sahoo …. Respondent

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Advocates appeared in the case:
For appellant : Mr. Gopinath Mishra, Advocate
For respondent : None
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE M.S. SAHOO
J U D G M E N T
--------------------------------------------------------------------------------------------------
Date of hearing and judgment: 9 th February, 2024
--------------------------------------------------------------------------------------------------

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ARINDAM SINHA, J.

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1. Appellant-wife is before us being aggrieved by impugned judgment dated 22^nd February, 2022 of the Family Court. Mr. Mishra, learned advocate appears on behalf of her and submits, his client was kidnapped on 1^st August, 2018. She was rescued on 14^th November, 2018. His client seeks annulment of the marriage because it was without her

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Page 1 of 7

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// 2 //

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consent, taken place during the period, when she was in custody of respondent-husband. He submits, the petition was dismissed on the bar by section 12(2)(a)(i) in Hindu Marriage Act, 1955. The provision is reproduced below.

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“12(2)(a)(i) Notwithstanding anything contained in subsection (1), no petition for annulling a marriage-

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(a) on the ground specified in clause (c) of sub-section

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(1), shall be entertained if-

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(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; ... ... ... ”

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2. He submits further, it may well be finding of the family Court

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that cessation of force was date of the rescue but his client was not aware there had been a marriage. On respondent-husband producing purported affidavit allegedly signed by her declaring the marriage, his client immediately took steps to apply to the family Court for annulment thereof.

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3. Respondent-husband goes unrepresented before us. Order sheet

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bears steps taken for service, including substituted service. We are satisfied on service to proceed against respondent-husband, ex parte.

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Page 2 of 7

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MATA no.174 of 2022

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// 3 //

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4. It appears from impugned judgment, case before the family Court was also set ex parte against respondent-husband. His conduct gives indication that he decided to and has moved on.

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5. Perused impugned judgment. We reproduce below recital of appellant’s case made to said Court recorded in paragraph 2 therein.

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“The case of the petitioner in short is that on 01.08.2018 she was studying +3 2^nd year and on that day while she was going to Derabish College, the respondent kidnapped her forcibly from the N.H. of Pari Palei and thereafter took her to Sri Sri Banua Mohapurusa Bijesthali at Bengapur, Kuanpal and exchanged garland with help of temple priest and married her forcibly . It is further averred that at the time of marriage no guardian, relatives were present and when her father came to know about the matter he lodged F.I.R. before Balichandrapur P.S. As the police searched for her, the respondent forced her to execute a self declaration affidavit before the Executive Magistrate, Mahanga on 12.11.2018 and she signed the same without valid consent as the same was obtained by force, fraud and influence of the respondent. She further averred that there was no consummation of marriage when she was in the custody of the respondent and police rescued her after some days and she lastly resided with the respondent on

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MATA no.174 of 2022

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// 4 //

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14.11.2008 . Under the above circumstances she instituted this case for a annulment of marriage by a decree of nullity. ”

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(emphasis supplied)

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It appears from appellant’s above case before the family Court that her

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allegation is, there was exchange of garlands with help of temple priest and respondent-husband married her forcibly. In this connection we

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reproduce paragraph 2 from appellant’s petition in the lower Court record, available.

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“That, the petitioner is a college going girl. She is reading in Class- (+3 IInd Year). On dt. 01.08.18 when the petitioner was going to Derabish College the O.P. kidnapped her forcibly from the N.H. of Pari-Palei and thereafter taken away near “Sri Sri Banua Mahapurusa Bijestali” At. Bengapur, Kuanpal, District- Cuttack. The O.P. exchanged garland with help of the temple priest and married her forcibly. ”

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(emphasis supplied )

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6. There is no description of the ceremony of Hindu marriage in

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the petition. Respondent-husband did not file written statement, so paragraph 2 in the petition is all we have. In the context, section 7 is reproduced below.

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Page 4 of 7

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MATA no.174 of 2022

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// 5 //

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“ 7. Ceremonies for a Hindu marriage .- (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

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(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.”

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7. In absence of evidence regarding due ceremony of Hindu marriage performed by the parties, we disregard applicant’s apprehension regarding the affidavit. A Hindu marriage may be solemnised by a ceremony as prescribed by section 7. It cannot happen on subsequent admission of it. Case of appellant before the family Court was, nobody was present from her side. Such an assertion coupled with her assertion that the exchange of garlands was done forcibly leads us to conclude there was no marriage at all.

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8. As aforesaid, we have impression that respondent-husband has moved on. Considering allegation of appellant was and still is, she was kidnapped, we made query to Mr. Mishra as per paragraph 2 in our order dated 5^th February, 2024, reproduced below.

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MATA no.174 of 2022

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// 6 //

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“2. We enquired of Mr. Mishra regarding his client’s intention, whether she intends to prosecute respondenthusband by criminal proceeding. Mr. Mishra on instruction submits, his client nor her father has lodged any criminal complaint against respondent-husband and have no intention of doing so. On further query he submits, his client will file affidavit to that effect.”

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Mr. Mishra files affidavit dated 9^th February, 2024 solemnly affirmed by

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appellant. Contents of the affidavit are reproduced below.

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“I, Monalisa Mohapatra, aged about 24 years, Daughter

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of Brajakishore Mohapatra, resident of Village: Puripalei, PO: Panasudha, P.S: Balichandrapur, District: Jajpur, do hereby solemnly affirm and state as follows:-

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1. That I am the appellant in this case and I file this affidavit in terms of the order dated 05.02.2024.

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2. That neither my-self nor my father has lodged any Criminal complaint against respondent-husband and we have no intention of doing so, relating to the incident of 01.08.2018.

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3. That the facts stated in this affidavit are true to the best of my knowledge and belief.”

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The affidavit be kept in the file.

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MATA no.174 of 2022

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// 7 //

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9. In view of aforesaid, we set aside impugned judgment as in our

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view there is no application of sub-section (2) in section 12 to the case because there was no marriage. The parties are declared as not having ever been married to each other.

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10. The appeal is disposed of.

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(Arindam Sinha)

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Judge
(M.S. Sahoo)
Judge
Prasant

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Signature Not Verified

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Digitally Signed Signed by: PRASANT KUMAR SAHOO Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 09-Feb-2024 19:13:33

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Page 7 of 7

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MATA no.174 of 2022

Monalisa Mohapatra v. Jitendra Sahoo

Case brief

What is this about?

What did the court decide?

Monalisa Mohapatra v. Jitendra Sahoo

Case brief

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What did the court decide?

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