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conciliation/mediation = Undoubtedly, both the parties were minor at the time when the respondent claims that they were married. She further alleges that she gave birth to a daughter when the parties lived together as husband and wife. Respondent filed a suit with a prayer that the appellant be restrained from marrying anyone else during her life time. She also filed another suit claiming that she and her daughter are entitled to 1/3rd share of the property owned by the appellant and his father. She, therefore, prayed for a perpetual injunction restraining the appellant and his father from alienating the suit property.- Paramount duty of the Court in matrimonial matters should be to restore peace in the family. The attitude should not be to further encourage the parties to litigate. Only as a last resort the Court ought to decide the suit/proceeding on merits. Therefore, we are unable to approve the observations made by the High Court in the impugned judgment. In that view of the matter, the appeal is allowed; the observations made in Para 4 of the impugned judgment are deleted.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40831

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8572 OF 2013
[Arising out of Special Leave Petition (Civil) No.26148 of 2011]
BHEEMRAYA …APPELLANT
VERSUS
SUNEETHA …RESPONDENT
ORDER
Delay condoned.
Leave granted.
We have heard the learned counsel for the parties at
length.
Undoubtedly, both the parties were minor at the time when
the respondent claims that they were married. She further
alleges that she gave birth to a daughter when the parties lived
together as husband and wife.
Respondent filed a suit with a prayer that the appellant
be restrained from marrying anyone else during her life time.
She also filed another suit claiming that she and her daughter
are entitled to 1/3rd share of the property owned by the
appellant and his father. She, therefore, prayed for a
perpetual injunction restraining the appellant and his father
from alienating the suit property.
…2/-

 

 

 
:2:
In the two suits filed by the respondent, the trial Court
in spite of recording findings of fact that parties were minor
at the time of the alleged marriage, proceeded to decide the two
suits on merits. The first appellate Court affirmed the
findings of the trial Court in both the suits.
The respondent filed two Regular Second Appeals in the
High Court. The finding that the plaintiff (respondent) was
minor at the time of the marriage was affirmed by the High
Court. However, the High Court held that since the
plaintiff/respondent was a minor, at the time when the suits
were filed, they were not maintainable. Therefore, the trial
Court had no jurisdiction to decide the same on merits. The
findings recorded on merits were set aside. The Regular Second
Appeals were partly allowed as indicated above.
The respondent had also filed a petition under Section 9
of the Hindu Marriage Act, 1955, which was dismissed. She then
filed Misc. First Appeal No.31408 of 2009, in which the High
Court passed the impugned order, dismissing the same.
Whilst
…3/-

 

 

 
:3:
dismissing the appeal, the High Court held that in view of
Section 5(iii) of the Hindu Marriage Act, 1955, clearly, the
marriage would be void. In view of this finding, the High Court
further observed that it would be open to the respondent to
initiate criminal proceedings for prosecution of the appellant
for an offence punishable under Section 376 of the Indian Penal
Code. In our opinion, the High Court was not justified in
making such observations. The only relief sought by the
respondent was for restitution of conjugal rights and
maintenance for the child. The High Court had rightly observed
that even an illegitimate child would be entitled to
maintenance. The High Court failed to appreciate that
essentially it was seized of a matrimonial dispute between the
parties. The attitude of the Court in such matters should
be to encourage and persuade the parties to reconcile. It was
an ideal case to be referred to conciliation/mediation. Having
perused all the orders in various proceedings between the
parties, we do not see any reference to any effort made by the
Court to adopt such a course. Instead the
…4/-

 

 
:4:
observations made in Paragraph 4 of the impugned judgment would
push the parties further into conflict. Paramount duty of the
Court in matrimonial matters should be to restore peace in the
family. The attitude should not be to further encourage the
parties to litigate. Only as a last resort the Court ought to
decide the suit/proceeding on merits. Therefore, we are unable
to approve the observations made by the High Court in the
impugned judgment.
In that view of the matter, the appeal is allowed; the
observations made in Para 4 of the impugned judgment are
deleted.
No costs.

 
………………..,J.
(SURINDER SINGH NIJJAR)

 
…………………………,J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI
SEPTEMBER 23, 2013

 

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