# Km Ankita Devi v. Shri Jagdependra Singh @ Kanhaiya

- **Citation:** (2024) 3 ILRA 308
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-16
- **Case number:** First Appeal No. 1391 of 2023
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-ankita-devi-v-shri-jagdependra-singh-kanhaiya-51671
- **Pages:** 7

## Headnote

A. Family Law - Hindu Marriage Act, 1955
- Sections 5 (i), (iv) & (v), & 11 - Void
marriage - Non-existence of any ground -
Effect - Ground of non-performance of
Saptapadi ceremony and the registration
of
marriage,
being
consequential
in
nature,
was
taken
by
the
plaintiffappellant
-
Permissibility
-
Held,
appellant-plaintiff herein was working as
Executive
Officer,
Nagar
Panchayat,
Manjhanpur, District Kaushambi and she
is, thus, a well-educated service class lady
holding important post and, therefore,
presumably, she must be having sufficient
financial means as well. Therefore, it is
unbelievable that any kind of fraud or use
of force could have been used on her for
making signatures for the registration of
marriage - Therefore, a bald oral assertion
in absence of any cogent evidence cannot
be accepted and, therefore, in our opinion,
has rightly been rejected by the Family
Court. (Para 7 and 12)

B. Family Law - Hindu Marriage Act, 1955
- Ss. 11 and 12 - Void marriage and
voidable marriage - Distinction - A void
marriage is regarded as non-existent or as
never
having
taken
place
and
such
declaration that the marriage is void ab
initio can be sought under Section 11 of
the Act on the grounds as provided therein
whereas a voidable marriage is regarded
as valid and subsisting unless a competent
Court annuls it until the decree of nullity is
obtained in accordance with the Hindu
Marriage Act. (Para 11)
Appeal dismissed. (E-1)

List of cases cited :-

## Text

308 INDIAN LAW REPORTS ALLAHABAD SERIES

39. Reverting back to the facts of
the
case
and
the
discussion
made
hereinabove, we find that the marriage has
irretrievably been broken down. Hence, as
held by the Apex Court, certainly this case
has to be construed as a case of 'mental
cruelty' on the appellant as the marriage is
totally unworkable and emotionally dead.
On that note, divorce can be granted.

40. Accordingly, the judgment, order
and decree dated 18.10.2019 passed by
Principal Judge, Family Court, Moradabad
in Case No. 492 of 2015 is set aside. The
appeal is allowed.

41. We hereby grant a decree of
divorce in favour of the appellant-husband
Col. Manoj Kumar Gupta against Smt.
Sangeeta, the respondent-wife herein.

42.

We
direct
the
Registrar
(Compliance) to send a copy of this
judgment to Secretary, Ministry of Law and
Justice, Department of Legal Affairs,
Government of India and Law Commission
to consider the matter in view of the
observations of the Hon'ble Apex Court in
the case of Naveen Kohli (supra) and
other judgments.

43. Learned A.S.G.I. is also directed
to forward a copy of this judgment to the
authorities
noted
above
for
serious
consideration.
----------
(2024) 3 ILRA 308
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

First Appeal No. 1391 of 2023
Km Ankita Devi ...Appellant
Versus
Shri Jagdependra Singh @ Kanhaiya
 ...Respondent

Counsel for the Appellant:
Sri Vinay Mishra, Sri Mata Achal Mishra

Counsel for the Respondent:

A. Family Law - Hindu Marriage Act, 1955
- Sections 5 (i), (iv) & (v), & 11 - Void
marriage - Non-existence of any ground -
Effect - Ground of non-performance of
Saptapadi ceremony and the registration
of
marriage,
being
consequential
in
nature,
was
taken
by
the
plaintiffappellant
-
Permissibility
-
Held,
appellant-plaintiff herein was working as
Executive
Officer,
Nagar
Panchayat,
Manjhanpur, District Kaushambi and she
is, thus, a well-educated service class lady
holding important post and, therefore,
presumably, she must be having sufficient
financial means as well. Therefore, it is
unbelievable that any kind of fraud or use
of force could have been used on her for
making signatures for the registration of
marriage - Therefore, a bald oral assertion
in absence of any cogent evidence cannot
be accepted and, therefore, in our opinion,
has rightly been rejected by the Family
Court. (Para 7 and 12)

B. Family Law - Hindu Marriage Act, 1955
- Ss. 11 and 12 - Void marriage and
voidable marriage - Distinction - A void
marriage is regarded as non-existent or as
never
having
taken
place
and
such
declaration that the marriage is void ab
initio can be sought under Section 11 of
the Act on the grounds as provided therein
whereas a voidable marriage is regarded
as valid and subsisting unless a competent
Court annuls it until the decree of nullity is
obtained in accordance with the Hindu
Marriage Act. (Para 11)
Appeal dismissed. (E-1)

List of cases cited :-
1. MAT. APP. (F.C.) 204 of 2023 (Delhi High
Court)
3 All. Km Ankita Devi Vs. Shri Jagdependra Singh @ Kanhaiya
309
(Delivered by Hon'ble Vivek Kumar Birla,
J.
&
Hon'ble Donadi Ramesh, J.)

1. Heard Sri Mata Achal Mishra,
learned counsel for the appellant and
perused the record.

2. The appellant-plaintiff (wife) has
come forward to challenge the impugned
judgement and order dated 22.11.2023
passed by the Family Court in Matrimonial
Suit No. 272 of 2018 (Km. Ankita Devi vs.
Shri Jagdependra Singh @ Kanhaiya),
whereby petition filed under Section 11 of
the Hindu Marriage Act, 1955 was
dismissed.

3. Submission of the learned counsel
for the appellant is that the dismissal of the
petition under Section 11 of the Act is
patently illegal. He submits that the
appellant-plaintiff (wife) had initially filed
a Matrimonial Petition No. 272 of 2018 on
10.2.2018 under Section 12 of the Act
wherein an amendment application dated
30.3.2019 was filed, which was allowed by
the
Family
Court
vide
order
dated
22.2.2021 on payment of cost and Section
12 of the Hindu Marriage Act (hereinafter
referred to as the 'Act') was deleted and in
place thereof, Section 11 of the Act was
incorporated. It is pointed out that the
respondent-husband (defendant) challenged
the said order by filing First Appeal No.
649 of 2021 (Jagdeevendra Singh @
Kannahaiya vs. Km. Ankita Devi) before
this Court, which was dismissed vide order
dated 1.3.2023 and the proceedings of the
divorce petition were directed to be decided
expeditiously. It is further submitted that
thereafter vide order dated 25.5.2023 the
matter was directed to be proceeded
exparte against the husband, who although
appeared before the Court below and filed
his written statement but absented himself.
The appellant-wife (plaintiff) appeared as
PW-1 and examined herself and filed the
marriage registration certificate, Allahabad
Bank passbook and Aadhar Card of the
appellant. It is submitted that she was
working as Executive Officer, Nagar
Panchayat,
Manjhanpur,
District
Kaushambi and the marriage was got
registered under duress as mother of the
appellant-wife was a heart patient and her
treatment in AIIMS was required and she
was not in a position to get her treated in
AIIMS because of financial constraints. It
was submitted that therefore the marriage
was an outcome of fraud and thus, the
impugned judgement is liable to be set
aside and the petition filed under Section 11
of the Act is liable to be allowed.

4. It is also submitted that admitted
fact of the case is that initially petition was
filed before the Family Court under Section
12 of the Act, which was deleted and
Section 11 of the Act was incorporated,
therefore, any other relief in the facts and
circumstances was also liable to be
considered
and
granted.
Submission,
therefore, is that even by ignoring the
grounds of Section 11 of the Act, the relief
should have been granted to the appellantplaintiff herein and the marriage was liable
to be declared void.

5. We have considered the
submissions of learned counsel for the
appellant and perused the record.

6. Before proceeding further, it
would be appropriate to take notice of
Sections 5, 11 and 12 of the Hindu
Marriage Act, 1955, which are quoted as
under:

"5. Conditions for a Hindu
marriage- A marriage may be solemnized
310 INDIAN LAW REPORTS ALLAHABAD SERIES
between any two Hindus, if the following
conditions are fulfilled, namely:-

(i) neither party has a spouse
living at the time of the marriage;

(ii) at the time of marriage,
neither party-

(a) is incapable of giving a valid
consent
to
it
in
consequence
of
unsoundness of mind; or

(b) though capable of giving a
valid consent, has been suffering from
mental disorder or such a kind or to such
an extent as to be unfit for marriage and
the procreation of children; or

(c) has been subject to recurrent
attacks of insanity;

(iii)
the
bridegroom
has
completed the age of twenty-one years and
the bride, the age of eighteen years at the
time of the marriage;

(iv) the parties are not within the
degrees of prohibited relationship, unless
the custom or usage governing each of
them permits of a marriage between the
two;

(v) the parties are not sapindas of
each other, unless the custom or usage
governing each of them permits of a
marriage between the two;

11.
Void
marriages-
Any
marriage
solemnized
after
the
commencement of this Act shall be null and
void any may, on a petition presented by
either party thereto, against the 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
section 5.

12. Voidable marriages- (1) Any
marriage solemnized, whether before or
after the commencement of this Act, shall
be voidable and may be annulled by a
decree of nullity on any of the following
grounds, namely:-

(a) that the marriage has not
been consummated owing to the impotence
of the respondent; or

(b) that the marriage is in
contravention of the condition specified in
clause (ii) of section 5; or

(c) that the consent of the
petitioner, or where the consent of the
guardian in marriage of the petitioner was
required under Section 5, as it stood
immediately before the commencement of
the Child Marriage Restraint (Amendment)
Act, 1978, the consent of such guardian
was obtained by force or by fraud as to the
nature of the ceremony or as to any
material fact or circumstances concerning
the respondent; or

(d) that the respondent was at the
time of the marriage pregnant by some
person other than the petitioner.

(2)
Notwithstanding
anything
contained in sub-section (1), no petition for
annulling a marriage-

(a) on the ground specified in
clause (c) of sub-section (1), shall be
entertained if-

(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; or

(ii) the petitioner has, with his or
her full consent, lived with the other party
to the marriage as husband and wife after
the force had ceased to operate or, as the
case may be, the fraud had been
discovered;

(b) on the ground specified in
clause (d) of sub-section (1), shall be
entertained unless the Court is satisfied-

(i) that the petitioner was at the
time of the marriage ignorant of the facts
alleged;

(ii) that the proceedings have
been instituted in the case of a marriage
solemnized before the commencement of
3 All. Km Ankita Devi Vs. Shri Jagdependra Singh @ Kanhaiya
311
this
Act
within
one
year
of
such
commencement
and
in
the
case
of
marriages
solemnized
after
such
commencement within one year from the
date of the marriage; and

(iii) that marital intercourse with
the consent of the petitioner has not taken
place since the discovery by the petitioner
of the existence of the said ground."
(emphasis supplied)

7. We find that the Court below has
considered the provisions of Sections 5 and
11 of the Act and found that none of the
grounds as given in Section 11 of the Act
are existing in the present case and
therefore, the petition was dismissed on
merits. During course of arguments, on a
pointed query, learned counsel for the
appellant fairly conceded that no ground as
provided in Section 11 of the Act is
available in the present case and the
petition should have been considered on the
other grounds and also on the grounds as
available in Section 12 of the Act. It was
pointed out that the ceremony of Saptapadi
(Sat Fera) was not performed and no
marriage ceremony had taken place,
therefore, the marriage was not valid and
therefore, registration of marriage was
inconsequential in nature.

8. On perusal of the record, we find
that in the written statement, it has been
categorically stated by the respondenthusband that the marriage had taken place
in a simple ceremony on 14.2.2017 and
thereafter the marriage was got registered
on 25.3.2017 by appellant herself appearing
and admitting factum of marriage before
the Sub Registrar, Kanpur Nagar as stated
in para 18 of the written statement,
therefore, there is no question of any fraud
having been played by the respondenthusband. In paragraph 23 of the written
statement, it has been categorically stated
that as the petition under Section 12 of the
Act should have been filed within a year
after the knowledge of the alleged fraud,
which is not available in the present case.
Therefore, it appears that for this reason,
subsequently an amendment application for
changing the provision from Section 12 of
the Act to Section 11 of the Act had been
filed, which was allowed. Therefore,
changing the provision of law under which
the petition was filed before the Family
Court was clearly a conscious decision of
the appellant herself. During course of
arguments,
learned
counsel
for
the
appellant has admitted that none of the
grounds as available in Section 11 of the
Act are made out, therefore, we find that
the argument of learned counsel for the
appellant that even though the provisions of
Section 12 of the Act has been changed to
Section 11 of the Act, petition should have
been considered as per the provisions of
Section 12 of the Act, is patently
misconceived. We find that ultimately no
fruitful purpose would be served by
keeping this litigation pending in view of
the admitted legal position. A bare reading
of Sections 5, 11 and 12 as quoted above
would clearly disclose that the grounds of
Section 12 of the Act are different from the
grounds as given in Section 11 of the Act
and therefore, specific assertion as made in
the petition must have been proved by the
appellant (plaintiff), which she failed to
prove.

9. In the present case, it is being
asserted by the appellant-plaintiff that she
met the respondent-defendant in an office
and thereafter he along with so-called
mother (Ex. Cadre Minister, Revenue
Adviser) used to visit the house of the
appellant-plaintiff. The mother of the
appellant-plaintiff was a heart patient and
312 INDIAN LAW REPORTS ALLAHABAD SERIES
she needed money for her treatment. The
respondent-defendant persuaded her for her
treatment at AIIMS, New Delhi and kept
the proposal of marriage, which was not
accepted by her, however, she was
influenced to go to Kanpur from Agra and
the respondent-defendant prepared some
documents for registration of marriage by
misleading, however, he persuaded her to
make signature and so that the marriage can
be performed subsequently. It is further
asserted
that
under
such
compelling
circumstances, when treatment of her
mother was required, she made signatures
for solemnization of marriage with the
respondent-defendant. Therefore, the claim
of the appellant-plaintiff is that a fraud was
played by respondent-defendant (husband)
and hence, she filed a petition under
Section 12 of the Hindu Marriage Act
wherein admittedly, the provision was got
amended on her own application from
Section 12 to Section 11 of the Act.

10. The Delhi High Court in MAT.
APP. (F.C.) 204 of 2023 (wherein names of
the parties have not been given) filed for
annulment of marriage on the ground of
fraud under Section 12 (1)(c) of the Hindu
Marriage Act considered the various
aspects of the matter and noticed that the
term "fraud" has not been defined in the
Act and observed that 'not every kind of
misrepresentation or concealment of fact'
can be termed as "fraud" as envisaged
under Section 12 of the Act. Several
judgements of other High Courts have also
been considered, paragraphs 12, 13, 14, 15,
16, 17 and 18 whereof are quoted as under:

12. The term "fraud" has not
been defined in the Act. Under the Hindu
Marriage
Act
not
every
kind
of
misrepresentation or concealment of fact
can be termed as fraud as envisaged under
Section 12 of the Act. Clause 'c' of Section
12(1) of HMJ thus provides that the
marriage may be annulled by a decree of
nullity if:

(i) the consent of the petitioner is
obtained by force or by fraud;

(ii)such force or fraud must be to
"the nature of the ceremony" or as to "any
material fact or circumstance concerning
the respondent".

13. Mulla, in Principles of Hindu
law, 11th Edition, deals with this aspect at
page 739 and observes that by way of
illustration, the concealment of a fact that
the wife had been in a "naikin" by
profession and even in the keeping of more
than one person prior to the marriage was
not a fraud if there was consent to the
marriage. So long as the person "freely
consents" to solemnization of the marriage
in accordance with customary ceremonies,
understanding the nature and having an
intention to marry, objection as to the
validity of marriage on the ground of
fraudulent representation or concealment
cannot
be
taken
subsequently.
The
marriage cannot be avoided by showing
that the petitioner was induced to marriage
by fraudulent statements relating to family
or fortune, caste or religion or age or
character
of the respondent.
Where,
however, a party is kept under the
impression that what is being performed is
only a betrothal or there is a deception as
to the identity of the other person, then it
would amount to fraud giving a cause for
annulment of marriage.

14. In Anath Nath De vs. Smt.
Lajjabati Devi, AIR 1959 Cal. 778, the
Calcutta High Court explained that the
question of consent of the parties to the
marriage arise at two stages ; firstly at the
time when the parties consent to solemnize
the marriage and secondly, at the time
when the marriage itself is solemnized. The
3 All. Km Ankita Devi Vs. Shri Jagdependra Singh @ Kanhaiya
313
Hindu Marriage not being a contract, the
consent at the first stage though obtained
by fraud, cannot affect the validity of the
marriage. The consent at the time of
solemnization of marriage is the material
consent and if it is obtained by fraud, it
affects the validity of the marriage.

15. Similar view was expressed
by Punjab & Haryana High Court in the
case of Harbhajan Singh vs. Smt. Briji
Balab, AIR 1964 Punjab 339, wherein it
was further observed that in case of a
marriage under Hindu law fraud is not
used in a general way and the marriage
cannot
be
dissolved
by
on
every
misrepresentation or concealment. If the
term "fraud" was to be interpreted in
accordance with Indian Contract Act, then
it would become impossible to maintain the
sanctity of marriage. By way of illustration,
it was stated that if a respondent is a
person of Bad Character before the
solemnization of marriage, it cannot be
termed as a fraud. The legislature did not
intent that the past conduct of the
respondent except what is mentioned in
Section 12 of the HMA, should become a
ground for dissolution of marriage.

16.
Similarly,
Bombay
High
Court in Raghunath vs. Vijaya, AIR 1972
Bom. 132 observed that term „fraud‟ used
in Section 12(1)(c) of the HMA does not
speak of fraud in any general way, nor does
it
mean
every
concealment
or
misrepresentation may be considered as
fraudulent. If the consent is given to the
solemnization of marriage, the same cannot
be avoided on the ground of fraud.

17. In Sujatha vs. Hariharan,
1995 (II) M.L.J 327 DB of Madras High
Court observed that to constitute a "fraud"
under Section 12(1)(c) of the HMA there
must be an abuse of confidential position,
some intentional imposition or some
deliberate concealment of material facts
which are the fundamental basis of the
marriage contract.

18. The meaning of material fact
or
circumstances
concerning
the
respondent was examined in the case of
Pradeep s/o Namdeorao Ambhore vs.
Pallavi
Pradeep
Ambhore
2017
(6)
Mh.L.J., where the moot question was
whether the concealment of the wife
suffering from sickle cell anemia, amounted
to material fact or circumstance. It was
observed that while it is difficult to define
with certainty what amounts to a material
fact, it is safe to say that a fact or
circumstance which is of such a nature that
was likely to interfere with the marital life
of the parties, then it is material fact or
circumstance. Such a material fact or
circumstance must be in respect of a person
or the character of the person and it is
immaterial whether it is curable or not.
Further, a fact crucial to the extent that if
disclosed would result in either of the
parties not consenting to the marriage,
would also be termed as a material fact."

11. In our opinion, the Family Court,
under such circumstances, ultimately after
change of provision from Section 12 of the
Act to Section 11 of the Act, has rightly
proceeded to consider the grounds of
declaration of marriage as void as provided
in Section 11 of the Act in the light of
Section 5 (i), (iv) and (v) of the Act. It
cannot be disputed that there is a difference
between void marriage and voidable
marriage. Needless to point out that a void
marriage is regarded as non-existent or as
never having taken place and such
declaration that the marriage is void ab
initio can be sought under Section 11 of the
Act on the grounds as provided therein
whereas a voidable marriage is regarded as
valid and subsisting unless a competent
Court annuls it until the decree of nullity is
314 INDIAN LAW REPORTS ALLAHABAD SERIES
obtained in accordance with the Hindu
Marriage Act. Unless the decree is granted,
the lis remains binding and continues to
subsist.
The
marriage
performed
in
contravention of Clauses (i), (iv) and (v) of
Section 5 of the Act is void and incapable
of being cured or ratified whereas in a case
of voidable marriage, a declaration is
necessary, otherwise the marriage continues
to remain is regarded as marriage and
continues to subsist.

12. In the present case, we have
noticed the fact that the appellant-plaintiff
herein was working as Executive Officer,
Nagar Panchayat, Manjhanpur, District
Kaushambi and she is, thus, a welleducated
service
class
lady
holding
important post and, therefore, presumably,
she must be having sufficient financial
means as well. Therefore, it is unbelievable
that any kind of fraud or use of force could
have been used on her for making
signatures for the registration of marriage
and that too when signatures were
admittedly made by her and are reflected
from the certificate of registration of
marriage at page 25 of the paper book.
Therefore, a bald oral assertion in absence
of any cogent evidence cannot be accepted
and, therefore, in our opinion, has rightly
been rejected by the Family Court. The
Family Court has also rightly taken into
account Section 8 of the Act, which
provides for registration of marriages. The
certificate of registration duly signed by the
appellant
herein
clearly
carries
a
declaration that marriage was solemnized
on 14.2.2017 at Kamleshwaram Guest
House, Chhapeda Pulia, Kakadev, Kanpur,
Kanpur Nagar, Uttar Pradesh. There is no
reason to disbelieve this documentary
evidence
of
marriage
and
clear-cut
declaration therein. In this background,
even though no final finding is being
recorded but we have reservation if the
petition even if filed under Section 12 of
the Act could have succeeded.

13. In such view of the matter, we do
not find any legal infirmity in the order
impugned herein. As only legal question
about availability of grounds under Section
11 is involved, which, as conceded by the
learned counsel for the appellant are not
available, therefore, we are not inclined to
admit the present appeal.

14. Therefore, we do not find an merit
in the present appeal and no fruitful
purpose would be served by admitting the
appeal or even keeping this appeal pending.

15. Present appeal is, accordingly,
dismissed at the admission stage itself.
----------
(2024) 3 ILRA 314
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1623 of 1992

Mahesh Chand ...Appellant
Versus
Brijesh Kumar & Anr. ...Respondents

Counsel for the Appellant:
Mr. Kunal Shah, Advocate

Counsel for the Respondents:
Mr. Ravi Kant, Sr. Advocate assisted by Mr.
I.N. Singh, Mr. Gajendra Pratap, Sr.
Advocate assisted by Mr. Abhishek Kumar,
Advocate

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law