PARMINDER SINGH Vs. DR. HARBHAJAN SINGH

JUDGEMENT

(1.) The appellant filed a petition under Sec. 13(l)(ia) of the Hindu Marriage Act, 1955. One of the allegations made in the petition is that the appellant came to know that the respondent was already married person having married to Mrs. Zaire and has two children out of the said wedlock and that one of the reasons for the respondent having become short-tempered was when the appellant posed a question to the respondent as to why he had cheated the appellant into marriage. The respondent contested the petition by filing the written statement but made a statement on April 23, 1995 that he had no objection if a decree of divorce as claimed by the appellant is granted to her. The appellant appeared in the witness box and made a statement in support of her petition. The learned Trial Court considered the evidence on the record but instead of proceeding to determine the petition under Sec. 13(1)(ia) of the said Act, declared that the marriage between the parties was null and void under Sec. 5 read with Sec. 11 of the Act. The appellant being aggrieved has filed the present appeal under Sec. 28 of the said Act.

(2.) The appeal is entitled to be allowed on the short ground that a marriage could be declared null and void only if a petition was presented by either party thereto, if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Sec. 5. Sec. 11 provides that any marriage solemnized after the commencement of the Act, shall be null and void and may, on a petition presented by either party thereto (emphasis supplied by Court) against other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Sec. 5. The Matrimonial Court could not suo motu declare a marriage to be void. The Trial Court should have proceeded on the assumption that the parties to the marriage had considered it as not a void marriage and prayed for the grant of a decree of divorce as claimed by the appellant. The Trial Court should have considered and evaluated the evidence on the record to come to a finding whether the appellant was treated with cruelty as was claimed by her.

(3.) Accordingly, the appeal is allowed. The case is remanded back to the Trial Court for re-determination of the petition of the appellant under Sec. 13(l)(ia) of the said Act, There will be no order as to costs of the proceedings in this Court. Appeal allowed.