RAJ RISHI Vs. SUDESH KUMARI

JUDGEMENT

(1.) Appellant-husband's petition under section 12 of the Hindu Marriage Act, 1955 (for short, the Act) for annulment of the marriage between the parties has been dismissed by the trial Court. Though besides this relief the Appellant too had claimed a decree of divorce in the alternative on the ground of discretion and cruelty yet at the time of the final hearing of the case the said prayer was given up and is no more reiterated before me. His sole claim now is that since the respondent wife at the time of their marriage on December 11, 1975, was subject to recurrent attacks of epilepsy, he be granted a decree of nullity annulling the marriage. Having heard the learned counsel for the parties at some length, I find that he does not deserve to succeed.

(2.) The trial Court has declined the above noted relief on two grounds : (i) since sub-clause (c) of clause (ii) of section 5 was for the first time made a part of the statute the Marriage Laws (Amendment) Act, 1976, i.e., after the marriage of the parties, the validity of the marriage cannot be assailed on the above noted ground and (ii) the evidence led by the appellant does not establish that at the time of the respondent's marriage, she was subject to recurrent attacks of epilepsy. His learned counsel contends with some amount of vehemence that these conclusions recorded by the trial Court are unsound and deserve to be upset. In order to appreciate the argument of the learned counsel, it is but necessary to have an idea of the relevant provisions of the Act.

(3.) Section 12 provides that any marriage solemnized between two Hindus, whether before or after the commencement of the Act, shall be voidable and may be annulled by a decree of nullity on the ground that the marriage is in contravention of the conditions specified in clause (ii) of section 5. Section 5 lays down the pre-requisites or conditions of a valid Hindu marriage. One of such conditions as contained in sub-clause (c) of clause (ii) of this section is that neither of the parties at the time of marriage has been subject to recurrent attacks of epilepsy. In case either of the parties was subject to such a malady, the marriage can be annulled by a decree of nullity in terms of section 12 of the Act. The submission of the learned counsel is that the very opening words of section 12 make the operation of sub-clause (c) of clause (ii) of section 5 retrospective and the lower Court was not justified in binding that the marriage performed prior to the introduction of sub-clause (c) to the statute cannot be annulled on the ground that one of the parties was at the time of the marriage suffering from recurrent attacks of epilepsy. To me the submission of the learned counsel appears to be full of merit. The lower Court has concluded this aspect of the matter in the following words :-