1. In the instant revisional application an important question of law has arisen for consideration of this Court, namely whether a suit, in which reliefs other than reliefs contemplated under the various provisions of the Hindu Marriage Act have been prayed for is to be filed before the Court of the learned District Judge under the provisions of S. 19 of the Hindu Marriage Act or before the Court of a learned Munsif.
2. The present petitioner as plaintiff filed a suit being Title Suit No. 93 of 1982 in the Court of the learned Munsif at Chandannagore against the opposite party inter alia on the pleadings that the opposite party is not legally married wife of the plaintiff and the opposite party did not acquire the status of wife of the plaintiff. The sum and substance of the case made out by the plaintiff in his plaint is that the plaintiff who is a Hindu while reading M.A in the University of Calcutta became acquainted with the defendants some time in the year 1967-1968 and such acquaitance developed into love and intimacy and finally they got married on 24th April, 1981 in the house of the defendant's father at Singuf according to the Hindu rites and after the marriage the parties resided together as husband and wife till 24th October, 1981. Subsequently the plaintiff came to know that the defendant opposite party is Christian by religion, a fact which was suppressed by defendant and her relatives before the marriage. Hence, the suit for declaration that the marriage is illegal, void and the defendant is not legally married wife of the plaintiff and she had not acquired the status of the wife and also for permanent injunction restraining the defendant from-claiming anything on the basis of the said marriage.
3. The defendant opposite party contested the suit by filing written statements denying all the material allegations in the plaint and specially allegation that it was not known to the plaintiff before the marriage that the defendant was Christian.
4. The learned Munsif framed number of issues in the suit including the issue whether the learned Munsif has jurisdiction to try such a suit. The aforesaid issue relation to the jurisdiction was taken up by the learned Munsif as a preliminary issue and the learned Munsif after hearing both the parties on the said issue by order No. 28 dt. 31-10-84 decided such issue against the plaintiff holding he had no jurisdiction to try the suit. By said order the learned Munsif has also directed the return of the plaint for filing the same before the Court having jurisdiction to try such suit. The learned Munsif was of the view that plaintiff having prayed for declaration that the marriage between the parties void, the learned Munsif has no jurisdiction to try such a suit and under S. 19 of the Hindu Marriage Act. Such a plaint is to be presented in the District Court.
5. On appeal by the plaintiff against the said order the learned District Judge, Hooghly by his judgment and by hisorder dt. 7th Oct., 1985 in Misc. Appeal No. 1 of 1985 has affirmed the order of the learned Munsif returning the plaint and has dismissed the appeal.
6. Such order is under challenge under the present revisional application.
7. Mr. Dilip Kr. Seth appearing for the petitioner in support of the revisional application has submitted inter alia that both Courts below have committed jurisdictional error by directing return of the plaint completely overlooking that the suit filed by the plaintiff was not at all a petition under the Hindu Marriage Act within the meaning of S. 19 of the said Act as none of the reliefs which can be obtained under the said Act has been prayed for in the suit. He has further submitted inter alia that under S. 19 of the said Act only a petition filed under the said Act is required to be presented before the District Court and not otherwise. He has further contended inter alia that the suit filed by him is really a suit for declaration under the Specific Relief Act and although he has prayed inter alia for the relief such that the marriage between the parties is void, such relief has been asked for not on any of the grounds under which a marriage can be annulled under S. 11 or 12 of the Hindu Marriage Act, but on the ground that subsequent to the solemnisation of the marriage between the parties and living for some time as husband and wife, the plaintiff came to know that the opposite party is Christian by religion, a fact which was suppressed by the opposite party and her parents and therefore there was no marriage between the parties and the opposite party therefore did not acquire the status of wife. The plaintiff therefore, submits Mr. Seth, is certainly entitled to file such suit for declaration before the Court of the learned Munsif.
8. Mr. Siba Pada Mukherjee, learned Advocate appearing for the opposite party after drawing my attention to the plaint filed in the suit specially to the paragraphs 5, 7, 11, 12 and 13 thereof has contended inter alia that it will appear from such pleading of the plaintiff himself that admittedly the marriage was solemnised between the parties under the Hindu rites and the parties after such marriage lived together for a few months as a husband and wife and accordingly, because of such admission of the plaintiff, the marriage between the parties cannot be annulled except by decree passed under the provisions of the Hindu Marriage Act. According to Mr. Mukherjee no reliefs other than the reliefs provided for under the Hindu Marriage Act can be obtained by the parties to a marriage relating to matrimonial status before the Civil Court under the provisions of the Specific Relief Act. Mr. Mukherjee submitted that Hindu Marriage Act being a special statute excludes the jurisdiction of the Civil Court for grant of relief relating to matrimonial status except in the manner provided for under Hindu Marriage Act.
9. Mr. Seth in support of his contention that the plaintiff in his aforesaid suit not having claimed any relief under the Hindu Marriage Act, S. 19 of the said Act would not be applicable and, therefore, the plaintiff is certainly entitled to file the suit before the Court of the learned Munsif has relied on two decisions of this Hon'ble Court, namely, the cases of Krishna Pal v. Asoke Kr. Pal, reported in (1982) 2 Cal LJ 366 and in the case of Tapan Kr. Maitra v. Pratima Roy Chowdhury, reported in (1985) 89 Cal WN 671.
10. In the said case of Krishna Pal v. Asoke Kr. Pal (1982) 2 Cal LJ 366, the defendant brought a suit for a declaration that no marriage between him and defendant No. 1 was solemnized according to Hindu Shastra and according to any other law and also for a declaration that the child born to defendant No. 1 was not by the loin of the plaintiff and also for a declaration that the entries relating the alleged marriage in Bankura sub-registry office dt. 21 Jan., 1977 was fradulent and null and void. In the said suit permanent injunction was also prayed for by the plaintiff to restrain the defendant No. 1 from claiming herself as married wife of the plaintiff or from asserting that the child given birth by her was born by the loins of the plaintiff. In the said suit the learned Munsif decided the issue No. 1 relating to his jurisdiction to try such suit in favour of the plaintiff by holding that the reliefs claimed by the plaintiff were not covered by Ss. 9 and 13 of the Hindu Marriage Act. The Hon'ble Mr. Justice Chittotosh Mukherjee, (as his Lordship then was) held in the said case that in deciding the question at the preliminary stage as to the appropriate forum of filing the suit, the Court is not called upon to record, about the truth or otherwise of the allegations made in the plaint of the suit and the only question for consideration at the stage is whether on the basis of the allegations made in the plaint and the prayers contained therein, the suit is for a relief contemplated under the Hindu Marriage Act.
11. In the said judgment his Lordship is clearly of the view that if the reliefs claimed in the suit are not reliefs which can be obtained under the various provisions of the Hindu Marriage Act, S. 19 of the said Act will not be applicable and the suit can be filed before the learned Munsif.
12. In the case of Tapas Kr. Maitra v. Pratima Roy Chowdhury, reported in (1985) 89 Cal WN 671 the Hon'ble Mr. Justice Prabir Kumar Majumdar has also held, following the decisions in the aforesaid case of Krishna Pal v. Asoke Kr. Pal (1982 (2) Cal LJ 366) that in a suit where no relief is prayed which are available under the various provisions of the Hindu Marriage Act, the plaint in the said suit cannot be considered to be a petition under S. 19 of the said Act and the learned Munsif is fully competent and has jurisdiction to entertain, try and determine the suit. In the said case the plaintiff filed a suit asking for a declaration that the registration of the alleged marriage between the parties is declared null and void, for cancellation of the said purported registration of marriage and for restraining the defendant by a permanent injunction from executing an order of maintenance and cost in M.C Case No. 271/77 of the Court of Sub-Divisional Judicial Magistrate.
13. The question therefore, which have come up for consideration of this Court as to whether S. 19 of the Hindu Marriage Act will be applicable even in a suit wherein reliefs other than reliefs contemplated under the Hindu Marriage Act have been asked for and whether it is open to a party to a marriage to ask for any relief not contemplated under the Hindu Marriage Act relating to the matrimonial status under the Specific Relief Act and to file a suit in respect thereof in the Court of the learned Munsif.
14. I respectfully agree with the above-mentioned two decisions of this Hon'ble Court.
15. In my view, S. 19 of the Hindu Marriage Act is applicable only in case of petitions filed under the said Act and not otherwise, as would be evident from the very language of the section itself, which is quoted hereunder:—
“Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction—
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.”
16. In the instance case although the petitioner inter alia prayed for a declaration that the marriage between the parties was void, the same will not make the plaint ipso facto a petition under the Hindu Marriage Act within the meaning of S. 19 of the said Act. Under S. 11 and 12 of the Hindu Marriage Act the circumstances under which a petition can be filed for annulment of marriage on the ground that the same is void are clearly specified. But in the instant case such declaration that the marriage is void has not been asked for by the plaintiff on any of such grounds on which such an annulment can be obtained under S. 12 or even under S. 11 of the said Act. The instant suit really appears to be on the face of the plaint, a suit for declaration as to the status of the parties.
17. In deciding whether or not the plaint filed by the petitioner in substance is a petition under S. 12 or under S. 11 of the Hindu Marriage Act for annulling the marriage between the parties by a decree of nulling or for the matter of that under any other provisions of the Hindu Marriage Act and which is the proper forum for filing the suit, at the preliminary stage the Court is not called upon to record a finding about truth or otherwise of the allegations made in the plaint. The only question relevant for consideration at such a stage is whether on the basis of the averments made in the plaint and the prayers contained therein, the suit is a suit for annulment of marriage within the meaning of Hindu Marriage Act or for a declaration under the Specific Relief Act.
18. Proceeding on such a basis it appears to me prima facie that suit is not one under S. 11 or under S. 12 of the Hindu Marriage Act or for any other provisions under the Hindu Marriage Act, but for a declaration relating to status. Therefore, not being a petition under the Hindu Marriage Act, S. 19 of the said Act is not attracted in the instant case. The learned Munsif therefore has Juris diction to try the suit before whom such a suit lean be maintained.
19. Mr. Seth has drawn my attention to S. 2(1)(a) of the said Act for the purpose of contending that the said Act is applicable to a person who is a Hindu by religion in any of its forms or developments. He has also drawn my attention to the explanation (a) and (b) of the said section where from it will appear that to be a Hindu one must have parents both of whom or atleast one of whom should be Hindu. Relying on the aforesaid provisions of said S. 2 of the said Act Mr. Seth has contended that in the instant suit it has been pleaded in the plaint that subsequent to solemnisation of marriage between the parties under the Hindu rites, it came to be known to the plaintiff that the defendant opposite party is Christian by religion and her parents are also Christian, a fact which was allegedly suppressed by the defendant and her parents at the time of marriage and during the period of Courtship and therefore there could not have any marriage between the parties under the Hindu Marriage Act as the said Act is applicable only to Hindus and accordingly the plaintiff is entitled to ask for such a declaration as prayed for in the plaint and maintain the suit in the Court of the learned Munsif. He has also drawn my attention to the provisions of the Special Marriage Act, the Christian Marriage Act and the Parsi Marriage Act and contended that it will appear from the aforesaid Acts as also the Hindu Marriage Act that the legislature specifically intended that each of such acts except the Special Marriage Act, would be applicable only to persons of the particular religion specified in the said Act and it is only under Special Marriage Act persons professing different religion can be married and under such circumstances there cannot be any marriage between a Hindu and a Christian under the Hindu Marriage Act.
20. Without going into the merits of such questions as to whether the defendant opposite party was not a Hindu within the meaning of Hindu Marriage Act and that the plaintiff petitioner came to know subsequent to the marriage that defendant opposite party allegedly is a Christian and whether there can be a marriage between a Hindu and a Christian under the Hindu Marriage Act under the facts and circumstances of the case, I am of the view that the question whether a marriage solemnized between a Hindu and alleged Christian as per the Hindu rites is no marriage under the Hindu Marriage Act merits consideration in the suit itself.
21. I am unable to accept the submission of Mr. Mukherjee that no relief other than the reliefs contemplated under the Hindu Marriage Act can be obtained by any of the spouses relating to status or Hindu Marriage Act in any manner whatsoever and same is barred by any provisions of the Hindu Marriage Act, S. 4(b) of the said Act, to which Mr. Mukherjee has referred, provides inter alia that any other law in force immediately before the commencement of the Hindu Marriage Act shall cease to have effect so far as the same is inconsistent with any of the provisions contained in the Hindu Marriage Act. The provisions of the Specific Relief Act under which a person can apply for a declaratory relief, cannot be said to be inconsistent with any of the provisions of the Hindu Marriage Act when the reliefs claimed in the suit do not fall within the purview of any of the provisions of the Hindu Marriage Act including Ss. 11 and 12.
22. The decisions reported in AIR 1963 SC 1547, in AIR 1969 SC 78 and in AIR 1988 SC 752, relied upon by Mr. Mukherjee in support of his contention that the Hindu Marriage Act has completely ousted the jurisdiction of the Civil Court to grant a declaratory decree under the Specific Relief Act, in my view are not at all applicable in the instant case. All the aforesaid decisions relate to circumstances when the jurisdiction of the Civil Court was barred by a Special Act either impliedly or expressly and such Special Act provided complete remedy for the parties. The Hindu Marriage Act, although no doubt a Special Act, in my view does not exclude the jurisdiction of the Civil Court for granting reliefs other than the reliefs which can be available under the Hindu Marriage Act. As it would be evident from S. 4(b) of the said Act itself that Hindu Marriage Act has overriding effect over such acts so far as provisions of the same are inconsistent with the Hindu Marriage Act and not otherwise.
23. Reading of the various provisions of the Hindu Marriage Act including Ss. 11 and 12 will clearly indicate that the same although a Special Act, it does not have overriding effect over the matters for which no provision is made under the Hindu Marriage Act, S. 4(a) of the said Act abrogates all the rules of the law of marriage hitherto applicable to Hindu, whether by virtue of any text or rule of Hindu law or any custom or usage having the force of law, in respect of all matters dealt with in the Act. And S. 4(b) of the said Act supersedes any other law, contained in any Central or State Legislature in force immediately before it came into operation in so far as such legislation is inconsistent with the provisions contained in the said Act and not otherwise. It will also appear from the various provisions and the scheme of the Act that the same does not impliedly or expressly exclude the jurisdiction of the Civil Court under S. 9 of the Civil P.C to grant a declaratory decree under the Specific Relief Act.
24. In the result, the application is allowed. The impugned appellate order dt. 7th Oct., 1985 passed by the learned District Judge, Hooghly in Misc. Appeal No. 1 of 1985 as also the order dt. 31st Oct., 1984 passed by the learned Munsif, Ist Court, Chandannagore in Title Suit No. 93 of 1982 are set aside. The learned Munsif shall entertain the plaint and try the suit and shall dispose of the same with utmost expedition.
25. It is, however, made clear that I have not decided the merits of the suit and all points relating to the merits are kept open. I also record no finding as to the truth or otherwise of the allegations made in the plaint. The jurisdiction of the learned Munsif to entertain the suit has been decided on the basis of the averments and the reliefs prayed for in the plaint. Such jurisdiction of the learned Munsif to try and entertain the suit will be there only if the plaintiff does not ask for an annulment of the marriage on the grounds specified under the Hindu Marriage Act. There will be no order as to cost. Let a copy of the order be sent down to the Court below forthwith.
Petition allowed.