Rajeswar Reddy And Another v. Lakshmi Bai .

1. This revision petition arises out of a suit filed by the respondent plaintiff for a declaration that the alleged marriage between the petitioners in this revision petition, who are defendants 1 and 2, is void.

2. In the plaint, it is stated that the plaintiff was married to the first defendant eight or nine years prior to suit, i.e, in 1953 or 1954. The plaintiff had an attack of smallpox two years prior to suit which probably disfigured her. On account of that, the first defendant married the 2nd defendant on 30th March, 1962. The suit was filed on 6th April, 1962. It is alleged that the marriage of the first defendant is void under law. Though in the plaint it is not stated that the marriage of the first defendant with the 2nd defendant is void under any particular law, it appears from the order of the lower Court that the stand taken by the plaintiff was that the said marriage is void under section 11 read with section 5 of the Hindu Marriage Act. The defendants pleaded that they were married about sixteen or seventeen years prior to suit and that the 2nd defendant herself was the first wife of the first defendant and that the plaintiff was the second wife. It was further pleaded that the suit at the instance of the plaintiff far a declaration that the marriage of defendants 1 and 2 is void is not maintainable and that, in any view, the suit is to be filed only in the District Court and not in the District Munsif's Court, as all suits, where a question of the validity or otherwise of a Hindu Marriage arises have to be instituted, in the District Court under the Hindu Marriage Act, 1955.

3. On the above pleadings, the following issues 3 to 6 were framed:

“(3) Whether the plaintiff is entitled to get marriage of the defendants 1 and 2 nullified?

(4) Whether this Court has territorial jurisdiction as the marriage took place at Bupparam taluk, Nirmal?

(5) Whether this Court has legal jurisdiction to entertain this suit in view of the provisions of’ the Hindu Marriage Act?

(6) Whether the Child Marriage Restraint Act applies to the marriage of the plaintiff or the defendant? If so, what is the effect?”

4. These issues were taken up as preliminary issues by the Court below and arguments were heard on those issues. On Issue No. 6, the lower Court reserved its opinion until the evidence is recorded and this was the proper thing for it to do in the circumstances of this case. On Issue No. 4, it found that, since both the defendants reside within the local limits of the jurisdiction of the lower Court, the suit was properly filed in that Court under sub-section (a) of section 20, Civil Procedure Code. Next, the lower Court considered Issues Nos. 3 and 5 together and held that the plaintiff's suit praying for a decree declaring that the marriage between defendants 1 and 2 is void is maintainable at her instance and also that it could be filed in the lower Court and not in the District Court. The defendants have filed this revision, petition challenging the correctness of those findings of the lower Court.

5. It is argued by Mr. Jahangir Ali, the learned Counsel for the petitioners that prior to the coming into force of the Hindu Marriage Act, the marriage of a male Hindu with a second wife while the first wife is living is not void and it is pointed out that it is only under the Hindu Marriage Act, 1955 that such a second marriage, while the first wife is living, is void. But the said Act does not give any right to the plaintiff to file a suit of this kind for a declaration that the marriage between her husband and the second wife is void. Therefore, it is contended that the suit itself was not maintainable. The plaintiff can, if she wants to, file a petition under section 13 of the Hindu Marriage Act, and get her own marriage dissolved, but she cannot question the validity of the marriage between defendants 1 and 2. In order to see whether the above contention is right, it is necessary to refer to the relevant provisions of the Hindu Marriage Act, 1955. Section 5 defines the conditions for a valid. Hindu marriage and states:

“5. A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

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6. Section 11 reads as follows:—

“Any marriage solemnised after the commencement of this Act shall be null and void, and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.”

7. In this case, the plaintiff seeks to declare the marriage of defendants 1 and 2 void because the said marriage contravenes the conditions specified in section 5(i) of the Act. From a plain reading of section 11, it is quite clear that the plaintiff, who was the first wife, could not file an application under section 11 of Hindu Marriage Act. Under that section a petition for a declaration of the nullity of the marriage could be filed only by either party to that marriage; If any authority is needed for this proposition, it may be mentioned that the decisions in Amarlal v. Vijayabai . A.I.R 1959 M.P 400., and Lakshmi Ammal v. Ramaswami . I.L.R 1959 Mad. 634 decide the point.

8. Section 13 of the Act may generally be stated to deal with divorce. Subsection (1) of section 13 applies only to either the husband or the wife, whose marriage is sought to be dissolved. But under sub-section (2) of section 13, a wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground that her husband had married again or that, any other wife of the husband married before the commencement of that Act was alive at the time of the solemnisation of the marriage of the petitioner. The argument of Mr. Jahangir Ali is that the plaintiff can get her own marriage dissolved, but she cannot file a suit to declare the marriage of defendants 1 and 2 void. I cannot accept this contention. Under the Hindu Marriage Act, if the marriage of the 2nd defendant with the first defendant was performed after coming into force of this Act, it would be void and the plaintiff, in my opinion, can file a suit in the civil Court for a declaration to that effect. Her right to file such a suit is under section 9, Civil, Procedure Code, read with section 42 of the Specific Relief Act. So far as section 11 of the Hindu Marriage Act is concerned, it is a special remedy given to either party to the marriage which was sought to be declared void. That remedy is not open to the plaintiff at all. I can see nothing in the Hindu Marriage Act which takes away the civil right of a Hindu wife to get a declaration as the one sought in the present case. It is also impossible to accept the contention of Mr. Jahangir Ali that the plaintiff can, if at all, obtain only a decree for dissolution of her own marriage. The marriage is a status and with it are matters relating to the property, succession and allied rights and if the plaintiff's right in that regard is, in any manner, threatened by the action of defendants 1 and 2, surely, it cannot seriously be contended that the plaintiff has no right at all to seek remedy by filing a suit in the civil Court. To hold otherwise would be to ignore section 9 of the Civil Procedure Code and section 42 of the Specific Relief Act. The mere fact that there is no specific provision in the Hindu Marriage Act, stating that any other person questioning the validity of a Hindu marriage can file a suit in the ordinary civil Court does not lead to the conclusion that no such right exists at all in any other person interested in the matter or that such an existing right is taken away by necessary implication. The decision in Balwant Kunwar v. Additional Munsif does not support the contention of Mr. Jahangir Ali. That was a case of a suit for restitution of conjugal rights for which specific provision is made in the Hindu Marriage Act prescribing the procedure for obtaining such a relief by either party to the marriage. I agree with the view taken by the Court below that the suit is maintainable in the civil Court.

9. I do not find any substance in the second contention of Mr. Jahangir Ali that the suit could be filed only in the District Court. I am referred to section 19 of the Hindu Marriage Act in support of this contention which prescribes that,

“Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and wife reside or last resided altogether.”

10. This only prescribes a forum for filing an application which can be filed under the Hindu Marriage Act. It does not prescribe the forum for filing a civil suit under section 9, Civil Procedure Code, which is governed by the other provisions of the Code of Civil Procedure.

11. The order of the lower Court is right and the revision petition is dismissed with costs.

12. Revision dismissed.