A third party cannot challenge the validity of a marriage solemnized under the Special Marriage Act, 1954, on the ground of impotency of one of the spouses, as the ground of impotency is a purely personalized ground available only to the aggrieved spouse.

( 1 ) THIS appeal is directed against the judgment and order dated 31. 7. 87 passed by the learned Judge, 13 Bench, City Civil Court, Calcutta in Title Suit No. 634 of 1985 by which the learned Trial Judge dismissed the appellant plaintiffs suit for declaration, as not maintainable in law.

( 2 ) THE appellant-plaintiff is the mother of one late Santosh Kumar Biswas was an employee of Atomic Minerals Division, Department of Atomic Energy under the Government of India. The said Santosh Kumar Biswas died on 1. 10. 1984 while in service. The respondent-defendant Ila Das claims to be the widow of said Santosh Kumar Biswas. It is the case of the respondent-defendant that Santosh Kumar Biswas married her and the said marriage was solemnized under the Special Marriage Act, 1954 on llth June, 1981 and the marriage certificate in respect of that marriage was also issued by the concerned Marriage Officer which is annexure -A to the plaint. Challenging the claim of the respondent-defendant Ila Das, the appellant-plaintiff filed the suit in March 1985 for a declaration that the plaintiff is the only legal heir of her deceased son Santosh Kumar Biswas and that the marriage solemnized on 11. 6. 81 under the Special Marriage Act between Santosh Kumar and the defendant was void ab-initio and the certificate of marriage and the entries made in the register kept in the office of the Marriage Officer regarding the said marriage were of no effect and/or nonest and the defendant was not the wife of said Santosh Kumar since deceased. The plaintiff also prayed for further declaration that the defendant had no right title in respect of the estate left by the said deceased Santosh Kumar and also prayed for a permanent injunction restraining the defendant from realising and/or claiming any entitlement, that is. Provident Fund, Employees Insurance Scheme, Pension or any benefit from the proforma defendant. Union of India or from anybody arising out of the death of the said Santosh Kumar, and also from claiming or declaring or giving out as the wife of said Santosh Kumar Biswas, since deceased.

( 3 ) THE defendant filed written statement inter alia challenging that the suit was not maintainable and the plaintiff had no locus standi to file the suit. She claimed in her written statement that she was legally married wife of late Santosh Kumar Biswas and their marriage, was duly solemnized and they led normal conjugal life to the knowledge of every body till the death of Santosh Kumar. The learned Court below framed issues and then on the defendant's application, under Order 14 Rule 2, CPC, took up issue No. 2 for hearing as a preliminary issue on the question of maintainability of the suit.

( 4 ) IT may be mentioned here that in the plaint the plaintiff challenged the validity of the marriage of Santosh Kumar and the defendant mainly on two grounds. One of the grounds is that Santosh Kumar, the son of the plaintiff, was impotent on and from 1976 as well as on 11. 6. 81, that is, the date of marriage and till the date of his death and as such the marriage was void ab-initio. The other ground of the plaintiff assailing the validity of the marriage is that the said marriage was never consummated. It is also the case of the appellant-plaintiff in the plaint that Santosh Kumar never married the defendant and neither the defendant and Santosh Kumar ever lived together as husband and wife any formalities of marriage were observed. The learned Court below has held that the plaintiff has no locus standi to bring this suit for declaration and permanent injunction and the suit is not maintainable and accordingly dismissed the suit by disposing of the Issue No. 2 in favour of the defendant. The learned Trial Court, it seems is of the view that the suit for declaration that the marriage is void, is not maintainable at the instance of the mother of a deceased spouse in view of the provisions of the Special Marriage Act under which the