PRABHJOT SINGH Vs. PRABHJIT KAUR

JUDGEMENT

(1.) The husband is in appeal against the judgment and decree dated 7.10.2008 passed by the learned District Judge, Gurdaspur, whereby he accepted the petition of the Respondent-wife filed under Section 11 read with Section 5(v) of the Hindu Marriage Act, 1955 (for short, "the Act") for declaring the marriage a nullity. Prabhjit Kaur, Respondent herein, filed a petition before the Court below under Section 11 read with Section 5(v) of the Act for declaring the marriage a nullity on the ground that her marriage with the Appellant on 10.1.1997 was not legal as both of them are Sapindas. It was pleaded that her mother and mother of the Appellant are real sisters. She further pleaded that she was undergoing course of staff nurse at Punjab Medical Institute, Jalandhar. In July 1996, mother of the Appellant visited the institute and asked her to accompany her to her house at Ajnala for some urgent work. Appellant and his father were also present there. At night, the Respondent and mother of the Appellant slept in one room and shared a cot. However, at midnight, Appellant's mother left the room and thereafter the Appellant subjected her to rape. She raised alarm but the door was bolted from outside and nobody responded to her cries. The parents of the Appellant threatened her from revealing the incident to her parents. After that incident, she went to her parents house but she did not tell this incident to them. She was blackmailed by the parents of the Appellant and they took her by force to a Gurdwara, dressed her like a bride and took her photographs with the Appellant. The Appellant and his family members got every ceremony of marriage performed under threat otherwise she was never willing for the marriage considering her relations with the Appellant Thereafter, she narrated the entire episode to her parents, and lodged FIR No. 90 dated 20.4.1999 against the Appellant and his parents. The mother of the Appellant also lodged FIR No. 175 dated 14.12.1997 against the father, brother and relatives of the Respondent. However, in both the criminal cases both the accused parties were acquitted. The Appellant filed divorce petition and withdrew the same on 6.4.2005. He also filed a petition under Section 9 of the Act, which was also withdrawn by him. The civil suit filed by the Respondent for declaring the marriage as nullity at Gurdaspur was also got dismissed as withdrawn. Thereafter, she filed the petition for declaring her marriage nullity before the District Judge, Gurdaspur, on the ground that both of them were Sapindas. She alleged that her marriage with the Appellant even otherwise was also performed by fraud and force. Upon notice, the Appellant filed reply wherein certain preliminary objections were taken. However, the factum of marriage was admitted. He averred that the Respondent never raised the plea of Spinda relationship in the petitions filed under Sections 9 and 13 of the Act. From the pleadings of the parties, the following issues were framed:

(2.) The Respondent filed the petition under Section 5(v) of the Hindu Marriage Act for declaring her marriage with the Appellant as nullity as both of them are Sapindas for the reason that her mother and mother of the Appellant are real sisters. Section 5(ii)(v) of the Act is as under:

(3.) The marriage had taken place on 10.1.1997. No child was born out of this wedlock. As both the parties lodged FI Rs against each other, though acquitted by the Courts below, and are living separate for the last more than eleven years, in these circumstances, it would not be possible for them to live together. Further the onus to prove that the petition was not maintainable and suffered from delay and laches was on the Appellant, however, he did not produce any evidence in this regard also.