Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 5764 of 2021 Petitioner :- Dhanno Devi Respondent :- Shivaji Sonkar Counsel for Petitioner :- Ajay Kumar Srivastava Counsel for Respondent :- Vinod Mishra
Hon'ble Ajit Kumar,J.
Heard learned counsel for the parties.
By means of this petition under Article 227 of the Constitution, the petitioner has prayed for setting asiding the order dated 02.09.2021, whereby, the Principal Judge, Family Court, Ghazipur has rejected the misc. application of the petitioner (paper no. 28-C) to call for handwriting expert of notory affidavit alleged to have been executed by the respondent with the recital that he would take care of the son of the petitioner, who was born out of the earlier wedlock of the petitioner with other person namely Chunnu Sonkar. The petition out of which the present proceeding arises has been filed under Section 11 of the Hindu Marriage Act, 1955 declaring the marriage as null and void.
In the considered opinion of this Court, the issue that is required to be determined by the Principal Judge, Family Court, Ghazipur in the petition under Section 11 of the Hindu Marriage Act is as to whether the marriage of the present petitioner with the opposite party is a bigamous marriage, therefore, void ab initio in the eyes of Hindu law. The question of maintenance of the son of the petitioner, merely on the basis of an alleged notory affidavit, is not an issue. Moreover, the case has reached the stage of final arguments.
Further, the stand taken in para 3 of the written statement talks of a written agreement of marriage. Prima facie, the Court is of the view that under the Hindu law there is no concept of contract of marriage between two persons. If the marriage was bigamous and it is proved on record, the said marriage would be void in the eyes of law under the relevant provisions of Hindu Marriage Act, 1955, but it will all be a matter of evidence.
However, since the proceedings under Section 11 of Hindu Marriage Act are at final stage and only the arguments have to be led, it may not be appropriate to order for any such handwriting expert opinion of an alleged notory affidavit at this stage. It would be always open for the petitioner to take this as substantial ground in case if the petition is decided against her and she comes to challenge the same before appropriate forum.
In view of the above, therefore, this Court is not inclined to interfere in the order impugned in exercise of superintending jurisdiction under Article 227 of the Constitution of India. However, it is clarified that any observations made in this judgment shall not come in the way of Principal Judge, Family Court, Ghazipur is deciding the case on its own merits giving full opportunity of hearing to the parties concerned.
This petition is accordingly consigned to records.
Order Date :- 29.10.2021/IrfanUddin