A.M Bhattacharjee, J.:— This revisional application must be rejected as no jurisdictional issue, which alone can sustain such an application, appears to have been involved. Mr. Somnath Chatterjee, the learned counsel for the petitioner has urged only two grounds in support of the revisional application and both of them appear to us to be without substance.
2. The instant application arises out of a matrimonial proceeding initiated by the wife/opposite party by a petition for divorce of her marriage with the husband/petitioner on various grounds like cruelty, adultery etc. The petition for divorce has been labelled as one both under S. 13 of the Hindu Marriage Act and S. 27 of the Special Marriage Act and the reason for the same appears to be that the marriage between the parties was first solemnised according to Hindu rites under the Hindu Marriage Act and was thereafter also registered under the provisions of the Special Marriage Act. As will appear from the provisions of Chapter III of the Special Marriage Act, a Hindu Marriage or, for the matter of that, any duly celebrated marriage, other than one solemnised under the Special Marriage Act, may be registered under that Chapter and on such registration a certificate of marriage shall be entered under S. 16 of the Act in the Marriage Certificate Book in certain specified form. And once such entry is made, the marriage, howsoever celebrated earlier, shall thenceforth “be deemed to be a marriage solemnised” under the Special Marriage Act because of the provisions of S. 18 of the Act. In that view of the matter, if the marriage of the wife/opposite party with the husband/petitioner, though celebrated and solemnised according to Hindu rites, was thereafter duly registered under Chapter III of the Special Marriage Act, the present matrimonial proceeding shall be governed by S. 27 of the Special Marriage Act and not by S. 13 of the Hindu Marriage Act. And in that case labelling the petition under S. 27 of the Special Marriage Act as one “under S. 13, Hindu Marriage Act” also was useless surplusage, which, at any rate, cannot affect the maintainability or the merit of the petition for divorce, nor the jurisdiction of the Court to grant divorce, if any case therefor is eventually made out at the trial.
3. Mr. Chatterjee has, however, urged that the Certificate that has been granted in this case under the Special Marriage Act is not one of registration under S. 16 of the Act of a marriage already celebrated earlier under Hindu rites, which Certificate should be in the Form specified in the Fifth Schedule of the Act; but it is a Certificate under S. 13 of the Act in the Form specified in the Fourth Schedule in respect of a direct solemnisation of a marriage under Chapter II of the Special Marriage Act. A marriage validly solemnised under any other Form cannot, so long it continues, be again solemnised under Chap. II of the Special Marriage Act. It can, as already noted, only be registered under Chapter III of the Special Marriage Act though on such registration, as stated earlier, the marriage shall thereafter be deemed to be solemnised under the Special Marriage Act. A solemnisation under Chap. II of the Special Marriage Act of a marriage already duly celebrated and solemnised under another Form, as distinguished from its subsequent registration under Chap. III, would, as it cannot but, be of no legal effect and significance, and in such a case, the earlier marriage duly solemnised in some other Form would continue to be valid and effective as before. We do not, as we need not, decide here at this stage as to whether the earlier marriage between the parties, was only registered under Chap. III of the Special Marriage Act or whether there was also a purported solemnisation of the marriage between the parties under Chap. II of the Act. But we would only add that such purported solemnisation, if there was any, would have been entirely an exercise in futility and in that case the earlier marriage celebrated under the Hindu rites would be the only marriage for consideration. All these, we are inclined to think, might have led the wife/opposite party and/or her legal advisers to label the petition as one both under S. 13 of the Hindu Marriage Act and S. 27 of the Special Marriage Act.
4. But, we however, have not at all been able to understand the submission made by Mr. Chatterjee that because of such amalgamation of the sections of the Hindu Marriage Act as well as the Special Marriage Act in the heading of the petition, the petition “does not disclose a cause of action” within the meaning of O. 7, R. 11 of the Civil P.C to warrant its rejection thereunder. The petition apparently discloses a cause of action for divorce on the grounds of acts of cruelty, adultery etc. and if those allegations are proved on evidence at the trial, it would be for the Court to grant appropriate relief under the provisions of the Hindu Marriage Act or the Special Marriage Act, by which the marriage in question would appear to the Court to be governed.
5. For the reasons as discussed hereinbefore, we also do not find any substance in the other submission made by Mr. Chatterjee that the Court ought to have tried the question as to the maintainability of the petition for divorce filed by the wife/opposite party as a preliminary issue. Under O. 14, R. 2(2) of the Civil P.C as amended by the Amendment Act of 1976, the Court may try and dispose of an issue of law as a preliminary issue only if that issue relates to — (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. As already indicated, we have not been able to discover any question relating to the jurisdiction of the Court to be involved in this case. And we have not also beep able to find, nor Mr. Chatterjee has been able to show any legal bar to the present petition under any law that we know of. At any rate, it appears from the impugned order that the learned trial Judge has left the issue open for consideration at the time of the trial and we are satisfied that, in doing so, the learned Judge has neither failed to exercise a jurisdiction vested in him nor has exercised the same illegally or with any material irregularity. We accordingly reject this revisional application.
Ajit Kumar Nayak, J.:— 6. I agree.
Revision dismissed.