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2019 Supreme(Bom) 327
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
INDRAJIT MAHANTY, SARANG V. KOTWAL, JJ.
Maithili Manhar Siswawala - Appellant
Versus
Praveen Kenneth Samuel James - Respondent
Family Court Appeal No. 227 of 2018
Decided On : 31-01-2019
Mrunalini Deshmukh, Adv., Durgesh Kulkarni, Adv., Lex Firmus, Adv., Jatin Pore, Adv., Ankita Agrawal, Adv., Dsk Legal, Adv.
Headnote:
Civil Procedure Code - Rule 7 – Order VII - Specific Relief Act, 1963 - Specific Relief Act, 1963 Section 34 – Jurisdiction – Appeal against conviction - After residing together for a considerable period, in or about differences arose between them - They decided to part ways and find different paths - Since they started residing separately - Appellant filed her Petition before the Family Court at Initially Appellant sought declaration that marriage solemnized declared as null and void - Subsequently prayer was amended and the Petitioner sought a declaration in respect of legal character/status of parties in respect of the said marriage - This amendment was carried out after the Court issued notice Appellant as to why Petition ought not be rejected as per Order VII Rule 7 of the CPC - Amendment was sought by the Petitioner in consonance with Section 34 of Specific Relief Act, 1963 - Respondent gave no objection for granting relief to Appellant as prayed by her – Held, Thus this Section deals not only with a civil right but also deals with declaration of any legal character - Hence Appellant has rightly sought relief of declaration regarding status of parties - In this context ratio laid down by this Court in case of can be considered - In case one of parties to marriage was a Hindu and had sought a declaration of nullity of marriage against Respondent under Section 34 of the Specific Relief Act - This Court took into consideration Respondents stand of supporting Appellant - In that case also plaint was rejected under Order VII Rule 11 of the CPC - Order of rejection of plaint was set aside by this Court and matter was remanded back to trial Court in view of the provisions of Order XII Rule 6 of the CPC - Division Bench of this Court took a view that though the Respondent was supporting the Appellant, the Judgment on admission was not a matter of right and it was a matter of discretion of the Court to be exercised judiciously depending upon facts and circumstances of each case. After considering all these aspects, the Division Bench of this Court, in that case, remanded matter back to Family Court with observations that if Family Court had not been satisfied, the Court ought to have framed proper issues and called upon the parties to give their evidence - It was further held that observations made by Family Court relating to fact that Appellant did not show any cause of action for filing the said Petition, were not convincing in view of pleadings on record - Thus as per Explanation (b) of sub-section (1) of Section 7 of Act Appellant has a right to approach Family Court for declaration as to her matrimonial status and such petition would be maintainable with reference to Section 34 of Specific Relief Act - In present case after amendment in prayer of Petition was maintainable before Family Court – Petition allowed
SARANG V. KOTWAL, J.
1. This is a Family Court Appeal preferred by the Appellant against the order dated 21/09/2018 passed by the learned Judge, Family Court No.6, Mumbai, in Petition No.B-57 of 2017. This Petition was filed by the present Appellant initially, seeking declaration that the marriage between the Appellant and the Respondent solemnized on 28/05/1996 as null and void. By an amendment, the prayer was amended and the Appellant sought declaration in respect of legal character/status of the Appellant and the Respondent in respect of the said marriage. The Respondent had not opposed the Appellant's Petition, neither is he opposing her Appeal before this Court.
2. The learned Judge of the Family Court, however, rejected the Petition as per the provisions of Order VII Rule 11 of the CPC. The Appellant is challenging this order in the instant Appeal.
3. In her Petition before the Family Court, the Appellant had pleaded that she was Hindu and the Respondent was Christian. They got married on 28/05/1996 in the presence of family and friends at Gowalia Tank, Mumbai. The marriage was registered under The Bombay Registration of Marriages Act, 1953 on 25/07/1996.
4. After residing together for a considerable period, in or about October 2014, differences arose between them. They decided to part ways and find different paths. Since January 2016, they started residing separately. The Appellant filed her Petition on 09/08/2017 before the Family Court at Bandra. Initially, the Appellant sought declaration that the marriage solemnized on 28/05/1996 be declared as null and void. Subsequently, the prayer was amended and the Petitioner sought a declaration in respect of the legal character/status of the parties in respect of the said marriage. This amendment was carried out after the Court issued notice dated 04/06/2018 to the Appellant as to why the Petition ought not be rejected as per Order VII Rule 7 of the CPC. The amendment was sought by the Petitioner in consonance with Section 34 of the Specific Relief Act, 1963. The Respondent gave no objection for granting the relief to the Appellant as prayed by her.
5. The learned Judge observed that even after amendment, the Petition remained for the declaration that the marriage be declared as null and void. The learned Judge observed that as per Section 34 of the Specific Relief Act, the cause of action arose if one party was denying any civil right of the other party. According to the learned Judge, no one was denying any civil right of the Petitioner and therefore, Section 34 of the said act was not applicable.
6. The learned Judge further relied on the case of Niranjani Roshan Rao Vs. Rosan Mark Pinto reported in, (2014) 6 MhLJ 277. According to him, the ratio in Niranjani Rao's case (supra) governs the fact of the Appellant's case. According to the learned Judge, in Niranjani Rao's case (supra), the order of rejection of plaint under Order VII Rule 11 of the CPC was upheld and therefore, in the instant case also, the plaint was liable to be rejected under the same provisions. The learned Judge rejected the Petitioner's submission that her case was governed by the ratio of the case of Neha Bhatia D/o Rakesh Bhatia Vs. Ferzad Palia S/o Cyrus Palia reported in, 2016 SCOnLine(Bom) 11319.
7. The learned Judge further observed that the parties did not follow the law of the land when they got married. He further observed that the parties wanted to legalize the illegal act. According to the learned Judge, the parties had given false information to the public authorities and therefore, they were not entitled for any equitable relief. Finally, the learned Judge rejected the Petition as per Order VII Rule 11 of the CPC.
8. Before discussing the matter any further, we may observe that the learned Judge was rather harsh in observing that the parties had done illegal thing by getting married in the manner in which they had performed their marriage. We also feel that the learned Judge's observation
