CHITTATOSH MUKHERJEE

( 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 solemnized 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 solemnized 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 solemnized, 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 solemnized 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 def

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