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2018 Supreme(Gau) 1495
IN THE HIGH COURT OF GAUHATI
PRASANTA KUMAR DEKA, J.
TRISHNA BORUAH KONWAR — Appellant
Vs.
ALAKANANDA DEVI KONWAR AND ANR — Respondent
Regular Second Appeal No. 116 of 2018, 632 of 2017; Interlocutory Application (Civil) No. 1542 of 2018
Decided on : 06-06-2018
Advocate Appeared:
P. Mahanta, Adv., M.K. Choudhury, Adv., M.R.P. Bhardwajr, Adv.
Headnote:
Civil Procedure Code ,1908 - Section 9- Special Marriage Act - Section 24 (1) (i) and 31 - Specific Relief Act, 1963 - Section 34 - Permanent injunction - Second appeal is preferred by appellant No.1 thereby impugning judgment – Plaintiff filed suit for declaration of marriage between defendant and defendant is illegal null and void amongst other reliefs including permanent injunction against present appellant defendant is also husband of plaintiff and she is first wife suit was resisted by defendant by stating that suit is not maintainable in Court of inasmuch as marriage between appellant and defendant was solemnized under Special Marriage Act and as same ought to have been preferred in District Judge and it is contention of plaintiff that during validity of marriage between her and husband and that too during lifetime of plaintiff her husband defendant cannot get married to appellant inasmuch as there is a specific bar under provision of Special Marriage Act and subsequent marriage between appellant and husband was not disputed by either of parties to marriage and even then as appellant claimed herself to be legally married wife of husband as such plaintiff in order to get her status as married wife of husband affirmed filed suit seeking reliefs hereinabove mentioned -Held, Considered submission of counsel and This is a case where in first wife of common husband of plaintiff and appellant has filed a suit in order to get her declaration as legally married wife with defendant and in order to get said declaration until and unless marriage between appellant and husband is declared null and void till then consequential relief of status of plaintiff cannot be declared by Court and Section of Specific Relief Act, stipulates discretion of Court as to declaration of status or right Any person entitled to any legal character may institute a suit against any person denying or interested to deny his or her title to such character - Court has its discretion to give a declaration that he or she is so entitled Even if said suit is held to be barred under Section of Specific Relief Act then also suit is not barred under Section of CPC and plaintiff has a right to claim status as wife of defendant inasmuch as subsequent marriage is null and void per se and same is specifically hit under specific provisions of Special Marriage Act Though this second appeal is based on judgment and decree passed by First Appellate Court reversing finding of trial court even then in my opinion there is no substantial question of law to be involved inasmuch as suit is filed by a stranger to marriage between appellant and husband and said marriage has affected status of stranger and under such circumstances Civil Court has jurisdiction to decide and Civil Judge has rightly held to be so inasmuch as suit cannot be termed to be within ambit of scope of Special Marriage Act only and Accordingly Court do not find any substantial question of law involved - Second appeal disposed of
Prasanta Kumar Deka, J.
Heard Mr. P. Mahanta, the learned counsel for the appellant. Also heard Mr. M. K. Choudhury, the learned senior counsel assisted by Mr. A. Barkataki, the learned counsel for the respondents.
2. This second appeal is preferred by the defendant/appellant No.1 thereby impugning the judgment and decree dated 15.09.2016 passed in Title Appeal No.3/2016 by the learned Civil Judge, Tinsukia. The said First Appellate Court's judgment arose out of the judgment and decree passed in Title suit No.18/2013 passed by the learned Munsiff No.2, Tinsukia dated 23.12.2015. The plaintiff/respondent filed the suit for declaration of the marriage dated 22.02.2013 between the defendant and the proforma defendant is illegal, null and void amongst other reliefs including permanent injunction against the present defendant/appellant. The proforma defendant is also the husband of plaintiff/respondent and she is the first wife. The suit was resisted by the defendant/appellant by stating that the suit is not maintainable in the Court of the learned Munsiff inasmuch as the marriage between the defendant/appellant and the proforma defendant was solemnized under the Special Marriage Act and as such the same ought to have been preferred in the District Judge, Tinsukia. It is the contention of the plaintiff/respondent that during the validity of the marriage between her and the proforma defendant/husband and that too during the lifetime of the plaintiff/respondent, her husband/proforma defendant cannot get married to the defendant/appellant inasmuch as there is a specific bar under the provision of Special Marriage Act. The subsequent marriage between the defendant/appellant and the proforma defendant/husband was not disputed by either of the parties to the marriage. Even then as the defendant/appellant claimed herself to be the legally married wife of the proforma defendant/husband, as such the plaintiff/respondent, in order to get her status as the married wife of the proforma defendant/husband affirmed, filed the suit seeking reliefs hereinabove mentioned.
3. The learned Munsiff No.2 at Tinsukia, on the basis of the pleadings, framed issues and amongst others, whether the suit is maintainable and whether the marriage between the defendant/appellant and the proforma defendant/husband is illegal, null and void and the plaintiff is entitled to get the decree as prayed for. The learned trial court held the Issue No.2 in the negative, i.e., against the plaintiff/respondent holding that the said Court has no jurisdiction to try the suit inasmuch as the relief claimed by the plaintiff/respondent is within the purview of Section 24 (1) (i) of the Special Marriage Act and as such the learned District Judge has the exclusive jurisdiction as per Section 31 of the said Special Marriage Act. Accordingly, the suit was dismissed.
4. Being aggrieved, the plaintiff/respondent preferred Title Appeal No.3/2016 in the Court of the learned Civil Judge, Tinsukia which was allowed thereby decreeing the suit vide judgment and decree dated 15.09.2016. Thereafter the present second appeal has been preferred by the defendant/appellant.
5. Mr. Mahanta submits that from the nature of the relief claimed by the plaintiff/respondent there is a specific bar in deciding the suit by the Court of learned Munsiff and the same as per Section 31 of the Special Marriage Act ought to be decided by the learned District Judge, Tinsukia. It is also submitted that the plaintiff/respondent is not the proper party to seek for the relief of nullity of the marriage between the defendant/appellant and the proforma defendant/husband. Mr. Mahanta also submits that the learned court below was wrong in annulling the marriage between the defendant/appellant and her husband/proforma defendant merely on the allegation leveled by a stranger to the said marriage. Accordingly, he sought for admission of this second appeal on the ground of wrong application of the jurisdiction by th
