Patna High Court
Kanchan Prabha vs Amit Kumar Sinha on 17 January, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.23 of 2024
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Kanchan Prabha D/o Kamal Kishore Lalit, W/o Amit Kumar Sinha, Resident
of Flat No. 302, Road No. 1, Magistrate Colony, P.S. Rajiv Nagar, District-
Patna.
... ... Appellant/s
Versus
Amit Kumar Sinha S/o Late Rajendra Prasad, At present resident of Mohalla
Old Bus Stand Bank, P.s. Banka, District-Banka.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ranjan Kumar Sinha, Advocate
For the Respondent/s : None
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
And
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. B. PD. SINGH)
Date : 17-01-2025
The present appeal has been filed under Section
19(1) of the Family Court Act, 1984 impugning the
judgment dated 03.10.2023 passed by learned Additional
Principal Judge, Family Court, Patna in Matrimonial Case
No. 338 of 2019, whereby the petition, filed by the
appellant-wife to nullify the marriage with the
respondent-husband solemnized on 23.08.2018, has
been dismissed.
2. The case of the appellant-wife as per the
petition filed before the Family Court is that the appellant-
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wife and respondent-husband both are divorcee. The
appellant-wife was earlier married with one Abhishek
Kumar but due to cruel attitude of her husband, the
appellant-wife took divorce from Abhishek Kumar on
mutual consent on 11.08.2015 in Matrimonial Case No.
351 of 2012. The respondent-husband had also married
with one Sweta Kumari but their marriage also could not
succeed and they part-ways on 09.12.2015 by means of
decree of divorce by the Family Court, Jehanabad in
Divorce Case No. 30 of 2014. The marriage of the
appellant-wife with the respondent-husband was
solemnized as per Hindu rites and rituals on 23.08.2018
in presence of relatives and well wishers of both sides.
Before marriage, the respondent-husband projected
himself as a Journalist working as Bureau Chief in 24
Channel but after marriage, the appellant-wife came to
know that respondent-husband was unemployed. The
respondent-husband, after passing some days, started
brutally assaulting the appellant-wife. During living period
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with the respondent-husband, the appellant-wife found
that respondent-husband is much cruel and of eccentric
mind. The appellant-wife also came to know that after
divorce with his ex-wife-Sweta Sinha, he had married
again with one Lovely Sinha, daughter of Rakesh Sinha
and this fact was kept concealed from the appellant-wife
before marrying with her. The appellant-wife also found
that respondent-husband is suffering from chronic
Tuberculosis since 2015 but this fact was also concealed
from the respondent-husband at the time of marriage. It
is further averred that marriage with the appellant-wife
could not be consummated due to inability of the
respondent-husband.
3. After filing of the present suit,
summons/notices were issued by the Court to the
respondent-husband, but he did not appear. Hence,
learned Principal Judge, Family Court decided to proceed
ex-parte.
4. In order to prove her case, the appellant has
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adduced oral as well as documentary evidence during the
course of the proceedings. During trial, the appellant-wife
has produced and examined two witnesses namely
Kanchan Prabha (P.W. 1), appellant-wife herself and
Kamal Kishore Lalit (P.W. 2) before the Family Court in
support of her averment made in the petition. The
appellant-wife has also produced the documentary
evidences i.e. Informatory Petition No. 3737 of 2016
(Ext-1), Medical Prescription of respondent-husband (Ext-
2), Advertisement published by Editor Manav Sewa
Adhikar (Ext-3), Marriage receipt issued by Shiv Mandir,
B.M.P, Patna (Ext-4), Joint Photographs of appellant-wife
and respondent-husband (Ext-5).
5. This Court had issued notice to the respondent-
husband and notices were validly served to the
respondent-husband but the respondent-husband choose
not to appear before this Court to contest his case. The
records of the learned Court below also suggests that
respondent-husband had not appeared in spite of valid
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service of notice and hence the case was decided ex-
parte against respondent-husband.
6. In view of the pleadings and the arguments
advanced on behalf of the appellant as well as the
evidences brought on record, the main points for
determination in this appeal are as follows:-
(i) Whether the appellant is entitled to
the relief sought for in her appeal.
(ii) Whether the impugned judgment of
Principal Judge, Family Court, Patna is just,
proper and sustainable in the eyes of law.
7. Both the above points are taken together for
discussion on the basis of facts and evidences adduced on
behalf of both the parties and the provision of law
applicable in this case.
8. P.W. 1 Kanchan Prabha is the appellant-wife
herself who has deposed that she was married with the
respondent-husband on 23.08.2018 in a temple as per
Hindu rights and rituals. At the time of fixing the
marriage, the respondent-husband used to work as Chief
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Bureau of 24 Channel. The respondent-husband said that
he is mentally and physically healthy. The respondent-
husband showed divorce paper with Sweta Singh, ex-
wife. After marriage, the appellant-wife started living with
the respondent-husband but the marriage could not be
consummated due to the inability of the respondent-
husband. Later, the appellant-wife came to know that
respondent-husband does not have any work. The
respondent-husband, thereafter started beating and
abusing the appellant-wife. After five months of marriage,
the appellant-wife came to know that after divorce from
Sweta Sinha, the respondent-husband had also married
with one Lovely Sinha, daughter of Rakesh Sinha but he
had concealed this fact from the appellant-wife at the
time of marriage. The appellant-wife, therefore prays to
annul the marriage with respondent-husband.
9. P.W. 2 Kamal Kishore Lalit is the father of
the appellant-wife who has deposed that appellant-wife
was married with the respondent-husband on
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23.08.2018
. At the time of marriage, the respondent-
husband had told that he is working as Chief Bureau of
Bihar in 24 News Channel and is healthy. After marriage,
the respondent-husband took the appellant-wife to a
rented house in Magistrate Colony, Patna. After living
there, it was found that the respondent-husband used to
stay at home all day and used to ask the appellant-wife to
give him money. When the appellant-wife asked why he
did not go to work, the respondent-husband used to beat
her up badly. The respondent-husband was mentally
unstable and he was always very cruel to the appellant-
wife. Meanwhile, it was found that after divorce from
Sweta Sinha, the respondent-husband got married with
Lovely Sinha. He has also filed Informatory Petition No.
3737 of 2016(Ext-1) in this regard. He also came to
know that respondent-husband does not work with 24
Channel and he was suffering from Tuberculosis since
2015. The respondent-husband had married with the
appellant-wife by hiding all the facts.
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10. It is submitted by learned counsel for the
appellant-wife that learned Court below has passed the
order in a mechanical manner without appreciating the
evidences placed on record before it. Learned Court below
has failed to appreciate that at the time of marriage with
the appellant-wife, the respondent-husband was already
having legally married spouse one Lovely Sinha, hence,
he has violated the terms as enshrined under Section 5(i)
of the Hindu Marriage Act which does not permit to
perform second marriage. The learned court below has
failed to consider that the respondent-husband has
concealed the fact that he is suffering from serious
Tuberculosis and also regarding his job and in this way,
he took the consent of marriage fraudulently with the
appellant-wife. The marriage also could not be
consummated due to inability of the respondent-husband.
11. Section 12(1)(c) of the Hindu Marriage Act
describes as follows:-
“that the consent of the petitioner, or
Patna High Court MA No.23 of 2024 dt.17-01-2025
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marriage of the petitioner was required
under section 5 as it stood immediately
before the commencement of the Child
Marriage Restraint (Amendment) Act, 1978
(2 of 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 circumstance concerning the
respondent”
12. We have perused the case record and
considered the submissions advanced on behalf of the
learned counsel for the appellant-wife. After analysis of
the evidence in entirety on record as adduced by the
appellant-wife, this Court finds that learned Court below
has not appreciated the evidences which were produced
by the appellant-wife and dismissed the petition of the
appellant-wife. The learned Court below ought to have
considered about the marriage of the respondent-
husband with Lovely Sinha at the time of marriage with
the appellant-wife. The specific claim and supporting
evidence of the appellant-wife that marriage could not be
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consummated is another serious cause of concern which
is a cornerstone for survival of any matrimonial
relationship, but that point has not been considered by
learned Court below. The Court below has also not took a
pain to consider the documentary evidences which were
produced by the appellant-wife to prove the above
pleaded facts. All those facts were required to be
considered while deciding the matrimonial suit by the
learned Court below.
13. All the above facts go to show that
appellant-wife has proved the fact that at the time of her
marriage with respondent-husband, he (respondent) was
having a legally married spouse namely Lovely Sinha and
marriage was not consummated owing to the inability of
the respondent-husband. Nothing has come on record to
controvert and rebut the above averments and evidence
adduced on behalf of the appellant-wife before learned
Court below as well as before this Court. So, there is no
reason to disbelieve the averment and evidence adduced
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on behalf of the appellant.
14. In that view of the matter, the impugned
judgment dated 03.10.2023 passed by learned Additional
Principal Judge, Family Court, Patna in Matrimonial Case
No. 338 of 2019 is hereby set aside. The prayer of the
appellant-wife to declare the marriage null and void under
Section 12(1)(c) of the Hindu Marriage Act is allowed and
the marriage between the appellant-wife and the
respondent-husband is declared null and void.
15. Registry is directed to prepare decree of
divorce accordingly.
16. Accordingly, the appeal stands allowed.
( S. B. Pd. Singh, J)
(P. B. Bajanthri, J)
Shageer/-
AFR/NAFR AFR CAV DATE 03/12/2024 Uploading Date 18/01/2025 Transmission Date N/A
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