RAMESH KUMAR Vs. SUNITA DEVI

JUDGEMENT

(1.) Sunita Devi successfully sought a decree of divorce under Section 13(2)(iv) of the Hindu Marriage Act. 1955 (hereinafter referred to as 'the Act') as, vide impugned order dated 3-9-2003, marriage between the parties was dissolved by a decree of divorce. The appellant-husband is in appeal.

(2.) Brief facts of the ca se reveal that marriage between the parties was solemnized before the respondent had attained the age of 15 years. Before attaining the age of 18 years, she exercised option to repudiate the marriage and, thus, sought a decree of divorce under Section 13(2)(iv) of the Act. The fact that the respondent was, indeed, less than 15 years of age and, in fact was only 11 years of age at the time of marriage, has not been disputed. Further that she exercised option to repudiate the marriage before attaining the age of 18 years is also not in dispute. But, what has, however, been urged during the course of arguments before us is that inasmuch as, the respondent, earlier in point of time, had filed petition for annulment of marriage on 20-12-1998 and the same was dismissed as withdrawn on 6-4-1998, the present petition filed under Section 13(2)(iv) of the Act was barred by principle of res judicata. This precise contention was raised before learned matrimonial Court as well but the same was repelled on various grounds and in particular, that at the time when respondent had filed petition for annulment of marriage, she had not even attained the age of 15 years. The respondent was born on 15-5-1985, whereas, the marriage was solemnised on 29-5-1996. She was, thus, hardly 11 years old at that time. Petition for annulment of marriage was filed on 20-1-1998 when she was about 13 years of age. If, therefore, the said petition was not competent at that stage, as would be clear from the reading of sub-section (iv) of Section 13(2) of the Act and would have, thus, been dismissed as premature, orders passed in the said petition cannot operate as res judicata. Sub-section (iv) of Section 13(2) of the Act is reproduced below for ready reference : "(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years,"

(3.) What clearly emerges from the reading of sub-section (iv), reproduced above, is that repudiation of marriage was not permissible before attaining the age of 15 years. Option could be exercised only when the respondent had attained the age of 15 years and the said option was available to her only till such time she had attained the age of 18 years. Once, we are satisfied that present petition was not barred by principle of res judicata for the reasons, as mentioned above, there is no need to comment upon other findings and additional reasons given by learned matrimonial Court rejecting the plea of the appellant, based upon res judicata.