1. The present petitioner is defendant No. 1 in a suit brought by the plaintiff petitioner in the first court of the Munsif at Bankura inter alia for a declaration that on 20th January 1977 or any other date no marriage between him and the defendant No. 1 was solemnised according to Hindu Shastras or according to any other law and also a declaration that the child born to the defendant No. 1 was not by the loin of the plaintiff. The second prayer in the plaint of the said suit is for a declaration that the entries regarding the said alleged marriage in Bankura Sub-registry Office dated 21st January, 1977 were fraudulent and null and void. The plaintiff opposite party has also prayed for permanent injunction to restrain the defendant no. 1 from claiming herself as the married wife of the plaintiff or from asserting that the child to whom she has given birth was born by the loin of the plaintiff. The defendant nos. 1 and 2 have contested the said suit by filing a written statement. They have inter alia pleaded that in fact marriage between the plaintiff and the defendant no. 1 was duly solemnised according to Hindu rites and the registration of the said marriage was duly and properly made. The defendants have further averred that the child born to the defendant no. 1 was the result of the cohabitation between them. The defendants have further averred that the suit was in substance for annulling the marriage between the parties and, therefore, it was not maintainable in the Munsif's court at Bankura.
2. The learned Munsif has answered the issue no. 4 relating to his jurisdiction to try the suit in favour of the plaintiff by holding that the reliefs claimed in the plaint were not covered by Ss. 9 and 13 of the Hindu Marriage Act.
3. Section 19 of the Hindu Marriage Act, 1955 has inter alia provided that every petition under the said Act shall be presented to the District Court within the local limits of whose ordinary civil jurisdiction:—
i) the marriage was solemnised, or
ii) the respondent at the time of the presentation of the petition resides; or
iii) the parties to the marriage last resided; 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 several years or more by those persons who would naturally have heard of him if he were alive.
4. The expression ‘district court’ under clause (c) of S. 3 of the Hindu Marriage Act means the principal civil court of original jurisdiction and any other civil court which may be specified by the State Government by notification in the official gazette in this behalf. Therefore, the principal point in this Rule is whether or not the present suit instituted by the plaintiff opposite party in the first court of Munsif at Bankura is either in form or in substance a petition under the Hindu Marriage Act. In the event the said point be answered in favour of the defendants, the plaint would be liable to be returned for presentation to the District Court. I have set out the reliefs prayed for in the instant suit which are in substance for declaring that no marriage was solemnised according to Hindu rites between the plaintiff and the defendant, the registration of the said alleged marriage was null and void and that the child begotten by the defendant no. 1 was not the child of the plaintiff. The plaintiff also prayed for permanent injunction to restrain the defendants from making the aforesaid representations.
5. in my view, when the plaintiff has not prayed for restitution of conjugal rights or for dissolution of the alleged marriage, neither S. 9 nor S. 13 of the Hindu Marriage Act would be attracted to the facts of the present case. Mr. Roy Choudhury has, however, submitted that the suit is in substance for annulling the marriage between the plaintiff and the defendant no. 1 by a decree of nullity on the ground that the consent of the plaintiff was obtained by force or by fraud (vide clause (c) sub-s. (1) of S. 12 of the Hindu Marriage Act). Mr. Roychoudhury has further submitted that such a petition under S. 12(1)(c) of the Act could not be entertained as the plaint has been presented more than one year after the alleged force had ceased to operate or the alleged fraud was discovered by the plaintiff and S. 12(2)(a)(i) of the Act would be a bar to the plaintiff obtaining any relief by way of annulment or his marriage with the defendant no. 1.
6. In deciding whether or not the plaint filed by the plaintiff opposite party is in substance a petition under S. 12(1)(c) of the Hindu Marriage Act for annulling the alleged marriage between the parties by a decree of nullity. I may indicate at this preliminary stage that the court is not called upon to record any finding about the truth or otherwise of the allegations made in the plaint of the suit. The only question for consideration at this stage is whether on the basis of the averments made in the plaint and the prayers contained therein is a suit for annulment of the alleged marriage between the parties by a decree of nullity.
7. After the enactment of the Hindu Marriage Act although the Hindu marriages have ceased to be wholly sacremental, S. 7 of the said Act still provides that a Hindu marriage shall be solemnised in accordance with the customary rites and ceremonies of either party thereto (vide sub-s. (1) of S. 7 of the Hindu Marriage Act.) Sub-section (2) of S. 7 further prescribes that where such rites and ceremonies include the ‘Saptapadi’, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. Thus, S. 7 of the Hindu Marriage Act has retained and has provided for continuance of the performance of the customary rites and make the same binding. The provision for registration of a Hindu Marriage under S. 8 of the Hindu Marriage Act is only optional and the same does not constitute a condition for making a Hindu marriage complete and binding. A registration made under the Hindu Marriage Act furnishes proof of a Hindu marriage which had been solemnised in accordance with the customary rites and ceremonies of either party thereto. Therefore, where the marriage had not been solemnised as laid down in S. 7 of the Hindu Marriage Act, registration under S. 8 by itself will not result in making the marriage complete and binding between the parties. The registration of an alleged marriage between the parties no doubt might raise a presumption of marriage having been solemnised between the parties. But the plaintiff has averred that no ceremony according to Hindu rites took place and, therefore, registration of the said alleged marriage was fraudulent and null and void. I, however, record no finding as to the truth or otherwise of the said allegations of the plaintiff. The Munsif's jurisdiction to entertain the instant suit ought to be decided on the basis of the averments made and the reliefs prayed for in the plaint without deciding the merits of the case.
8. The expression ‘any marriage solemnised’ in sub-s. (1) of S. 12 of the Hindu Marriage Act means a marriage which has been solemnised in accordance with the customary rites and ceremonies of either party thereto. The plaintiff's allegation is that no marriage was solemnised between him and the defendant no. 1. Therefore, sub-s. (1) of S. 12 of the Hindu Marriage Act which provides for annulment of voidable marriages is not attracted to the present case. But in the event the court ultimately finds that the marriage according to Hindu rites was solemnised then obviously until the marriage is annulled by a decree of nullity or dissolved by decree of divorce the parties would continue to be married with each other. For the same reason, at this stage court need not consider whether S. 12(2)(a)(i) of the Hindu Marriage Act would be a bar to the plaintiff to obtain annulment of his alleged marriage with the defendant under S. 12(1) of the Act.
9. As already seated, the plaintiff has chosen not to pray for any relief either by way of annulment of decree of nullity or by way of a decree for dissolution of the alleged marriage the plaint filed by him cannot be considered to be a petition under the Hindu Marriage Act. The plaintiff has sought for certain declaration regarding the status of the parties and for consequential reliefs and the learned Munsif has jurisdiction under the Specific Relief Act to consider whether the plaintiff has made out any case for obtaining such discretionary declaratory and consequential reliefs. I add that the findings and observations made by the learned Munsif regarding the maintainability of the suit did not amount to determination of any other issue framed by him.
I accordingly discharge this Rule without any orders as to costs.
Let the records be sent down expeditiously.
Rule discharged.