Point of Law: Word “may” found in Order 14 Rule 2 is to be read as “shall” making it mandatory on the part of the trial court to treat the issue as a preliminary issue if the issue relates to the bar of suit or maintainability of suits.

JUDGMENT :

ANANT RAMANATH HEGDE, J.

1. This is one of the questions that is required to be answered while deciding this case.

2. The facts necessary for adjudication of the case are narrated as under:

The appellant-plaintiff before the Principal Judge, Family Court, Ballari filed a suit in O.S. No. 19/2018 seeking a declaration to declare that her marriage with the defendant said to have been solemnized on 26.9.2013 is a valid marriage and that the plaintiff is legally wedded wife of the defendant.

3. According to the appellant, her marriage with the respondent is solemnized on 26.9.2013 and is registered before the jurisdictional Sub-Registrar. The suit was contested by the respondent, disputing her claim. Based on the pleadings, the family Court framed five issues and the issue No. 3 relating to maintainability of the suit is treated as a preliminary issue.

4. The plaint averments itself disclose that on 19.3.2008, the plaintiff married one Pampapati. Even according to the plaintiff, the marriage with Pampapati was not dissolved by the competent Court when she married the respondent on 26.09.2013. It is further claimed that after her marriage with the respondent, the petitioner’s first marriage with Pampapati was dissolved in terms of judgment and decree dated 17.9.2014 based on a mutual petition filed seeking divorce.

5. By referring to the above said pleadings and contentions raised by the parties, the trial Court has treated Issue No. 3 as a preliminary issue and has concluded that the suit seeking a declaration of the marital status of the plaintiff with the defendant is not maintainable. The trial Court has placed reliance on Sections 5 and 11 of the Hindu Marriage Act (for short ‘the Act’) to support the said conclusion.

6. Section 5 of the Act deals with conditions for a Hindu Marriage. In terms of Section 5(i), for the marriage to be valid under the Act, neither party should have a spouse living at the time of marriage. As per Section 11 of the Act which deals with void marriages, any marriage solemnized in contravention of any one of the conditions prescribed in Section 5(i) (iv) (v) of the Act, is void. Applying these two provisions, the trial Court has held that the declaration as sought by the plaintiff cannot be granted, as her marriage with the respondent is void under Section 5(i) read with Section 11 of the Act.

7. The learned counsel for the plaintiff-appellant Mr. Nadaf in support of his grounds urged in the appeal memo would make the following submissions:

(a) The 1st marriage of the plaintiff is dissolved in terms of the decree for divorce dated 17.9.2014 in M.C. No. 288/2013 on the file of Family Court, Ballari. Thus, the marriage solemnized on 26.09.2013 between the plaintiff and defendant should be declared valid and this aspect should have been decided after holding the trial.

(b) The trial court committed error in dismissing the suit without recording the evidence of the parties. It is further urged that issue No. 3 could not have been treated as a preliminary issue.

8. This Court perused the records particularly the pleadings and this Court has considered the contentions raised at the bar.

9. Section 5 of the Act, prescribes conditions for a Hindu marriage. As per Section 5 (i) a marriage may be solemnized between two Hindus if neither party has a spouse living at the time of the marriage. The remaining conditions prescribed in the said Section 5 of the Act are not relevant for the adjudication of this case. Section 11 of the Act deals with void marriages. If any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 is contravened, then the marriage is void. Admittedly, in this case, the 2nd marriage of the plaintiff with the defendant was solemnized on 26.9.2013. The 1st marriage of the plaintiff which was solemnized on 19.3.2008 was still subsisting though the plaintiff was not residing with her 1st husband as the relationship with the 1st husband was strained. Admittedly, the 1st marriage