P.K. Bhasin, J.@mdashThis is an appeal filed u/s 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ''Act'') assailing the order and decree dated 04.09.2004 in H.M.A. No. 1008/2003 passed by the learned Additional District Judge whereby application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ''CPC'') filed by the respondent herein was allowed and the petition u/s 12(1)(c) of the Act filed by the appellant herein was rejected.
2. The case of the petitioner appellant herein is that her marriage with the respondent was solemnized on 12.05.2001 under threats and pressure from the respondent and so there was no valid consent of the petitioner. It was alleged by the petitioner in the petition before the matrimonial court that she was abducted by the respondent on 11.05.2001 and was forced to marry him without her consent who subjected her to cruelty, threat and criminal force and also committed rape on her during the period of her illegal confinement. On 28.05.2001, appellant managed to escape from the confinement of the respondent while he was asleep and then she went to the police station and lodged an FIR in New Friends Colony Police Station under Sections 365/376/506/342 Indian Penal Code against the respondent on 28.05.2001. The appellant further averred that since then the respondent had been threatening her to refrain from pursuing the criminal case and was also trying to malign her reputation in the public by getting false and fabricated articles published in the local newspaper in Bokaro in collusion with the editor etc.
3. During the course of the said proceedings u/s 12(1)(c) of the Act the respondent moved an application under Order 7 Rule 11 CPC for rejection of the petition solely on the ground that the petition was time barred u/s 12(2)(a)(i) of the Act since even as per the averments in the petition force had ceased to operate on 28.05.2001 when the petitioner appellant herein, had escaped from the custody of the respondent.
4. The said application was controverter by the appellant on the ground that she could not file the petition within time as she was in a highly disturbed condition and was traumatized due to the sexual harassment, mental and physical torture and threats extended by the respondent and also due to paucity of funds. Moreover, the respondent had been continuously threatening her to kill her parents in case she would not withdraw the proceedings launched against him.
5. The learned Additional District Judge, Delhi vide his order dated 04.09.2004 allowed the said application and under Order 7 Rule 11 CPC and rejected the petition observing that from the averments in the petition it was clear that the so called force or threats had ceased to exist the moment she escaped from the confinement of the respondent and reported the matter to the police.
6. It was contended by learned Counsel for the appellant that the learned Trial Court was not justified in rejecting her petition under Order 7 Rule 11 CPC since the question whether the petition was within the period prescribed u/s 12(2)(b) of the Act could be decided only after recording evidences of both the parties particularly when the petitioner had categorically averred in her petition that the respondent was still continuing to extend threats to her.
On the other hand, learned Counsel for the respondent submitted that there was no error in the impugned order of the learned Trial Court rejecting the petition under Order 7 Rule 11 CPC and it had been rightly observed in the impugned order that the force, if any, used by the respondent herein for making the petitioner appellant herein to agree to marry him had ceased to operate on 28.05.2001 when even according to the petitioner herself she had managed to escape from the custody of the respondent and on the same day she had approached the police and lodged an FIR pursuant to which the respondent was arrested. Learned Counsel submitted that after 28.05.2001 the appellant could not be said to be under any fear of the respondent and accordingly she could have filed the petition for annulment for her marriage with the respondent within one year from 28.05.2001 but she preferred to file the petition in April, 2003 and thus was barred in view of the provisions of Section 12(2)(a)(i) of the Act.
7. In my view, the learned trial Court was not correct in arriving at the conclusion that the force which the appellant claimed to have been resorted to by the respondent for solemnizing marriage with her had ceased to operate on 28-05-2001 without calling upon the respondent to file his written statement and without recording evidence in that regard. In the absence of the written statement of the respondent and the evidence of the parties the said conclusion arrived at by the learned trial Court is conjectural only and cannot be sustained. It is now well settled that question of limitation is a mixed question of fact and law and so could not be decided by invoking Order 7 Rule 11 CPC. Therefore, the impugned order of the learned Trial Court is liable to be set aside.
8. In the result, this appeal is allowed and the order dated 04-09-2004 passed in HMA No. 1008/2003 is set aside and the matter is remitted back to the Trial Court for proceeding further in the matter in accordance with law by calling upon the respondent to file his written statement wherein he would be at liberty to take the plea of the petition being barred by time also and if raised the learned trial Court would decided that issue in accordance with law along with other issues arising out of the pleadings of the parties after affording them opportunity to adduce evidence in support of their respective pleas. The parties are left to bear their own costs.
