BHEEMRAYAversusSUNEETHA

                        [2013] 10 S.C.R. 218


A                           BHEEMRAYA
                                   V.
                             SUNEETHA
                   (Civil Appeal No.8572 of 2013)
                       SEPTEMBER 23, 2013
B
     [SURINDER SINGH NIJJAR AND FAKKIR MOHAMED
                IBRAHIM KALIFULLA, JJ.]

          Family Law - Matrimonial dispute - Two suits by wife,
C   one for restraining the husband from marrying during her
    lifetime and another for perpetual injunction restraining the
    husband and his father from alienating suit property as she
    herself and her daughter (born out of the marriage) were
    entitled to 1!3rd share - She also filed petition uls. 9 of Hindu
D   Marriage Act - Trial court decided the suit on merits - Order
    affirmed by first appellate court - Petition u/s. 9 dismissed by
    trial court - High Court held that suits were not maint.ainab/e
    because the plaintiff was a minor at the time of filing the suits
    - As regards the petition u/s. 9, High Court held that, in view
E   of the fact that both the parties were minor at the time of
    marriage, the marriage would be void - However, the court
    gave liberty to the wife to initiate criminal proceedings u/s.
    376 /PC against the husband - On appeal, held: The relief
    sought by the wife, in effect, was for restitution of conjugal
F   rights and maintenance for her child - The dispute was
    essentially a matrimonial dispute - Therefore, the court erred
    in making the observation giving her liberty to initiate criminal
    proceedings, rather than encouraging and persuading the
    parties to reconcile - In matrimonial matters it is paramount
G   duty of the Court to restore peace in family - Only as a last
    resort, the case should be decided on merits - The
    appropriate course, in the instant case, would have been that
     the case was referred for conciliation/mediation.


H                                 218
               BHEEMRAYA v. SUNEETHA                            219


    CIVIL APPELLATE JURISDICTION : Civil Appeal No.                     A
8572 of 2013.

    From the Judgment & Order dated 16.12.2010 of the High
Cour of Karnataka Circuit Bench at Gulbarga in Misc. First
Appeal No. 31408 of 2009 (MC).
                                                                        B
     Sudha Gupta for the Appellant.

     Shirish K. Deshpande for the Respondent.

     The following Order of the Court was delivered by
                                                                        c
                             ORDER
    _1. Delay condoned.

     2. Leave granted.
                                                                        D
     3. We have heard the learned counsel for the parties at
length.

     4. · Undoubtedly, both the parties were minor at the time
when the respondent claims that they were married. She further          E
alleges that she gave birth to a daughter when the parties lived
together as husband and wife.

     5. Respondent fifed a suit with a prayer that the appellant
be restrained from marrying anyone else during her fife time.
She also fifed another suit claiming that she and her daughter          F
are entitled to 1/3rd share of the property owned by the
appellant and his father. She, therefore, prayed for ~ perpetual
injunction restraining the appellant and his father from alienating
the suit property.
                                                                        G
      6. 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.                                          H
    220      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A        7. 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,
s   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~

          8. The respondent had also filed a petition under Section
C   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 dismissing the appeal, the High Court held that in view
    of Section 5(iii) of the Hindu Marriage Act, 1955, clearly, the
D   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
E   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
F   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
G   to any effort made by the Court to adopt such a course. Instead
    the 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
H   encourage the parties to litigate. Only as a last resort the Court
             BHEEMRAYA v. SUNEETHA                        221


ought to decide the suit/proceeding on merits. Therefore, we     A
are unable to approve the observations made by the High Court
in the impugned judgment.

     9. In that view of the matter, the appeal is allowed; the
observations made in Para 4 of the impugned judgment are         B
deleted.

    No costs.

K.K.T.                                       Appeal allowed.