Civil courts retain jurisdiction for suits seeking declarations of marital status under Section 34 of the Specific Relief Act when a Family Court is absent, as provided by the Family Courts Act.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

Heard Mr. S. Biswas, learned counsel appearing for the appellant as well as Mr. A. Ikbal, learned counsel representing the respondent.

2. This is a Regular Second Appeal under Section 100 of the CIVIL PROCEDURE CODE (CPC) whereby the judgment dated 01.02.2024 passed by the court of learned Civil Judge (Sr. Divn.), Sonitpur, Tezpur in Title Appeal No.01/2023 affirming the judgment and decree dated 16.11.2022 passed in T.S. No.129/2017 by the learned Munsiff No.2, Sonitpur, Tezpur.

3. The appellant is married to Smti. Tara Devi. They have two sons.

4. The appellant is an employee of Assam Rifles. Before joining the service, he looked after the family business of selling milk. At that time, the respondent Ambika Devi was engaged as a labourer in the said business.

5. In the last part of 1998, the respondent appeared before the superior officer of the appellant and claimed to be a married wife of the appellant. A Departmental Inquiry was instituted against the appellant. The result of the inquiry went in favour of the appellant. Even then, the appellant was dismissed from service. He filed a writ petition being WP(C) No.4097/2002 before this Court. This Court had set aside the dismissal order. According to the appellant, this Court had decided that the claim of the present respondent that she is the legally married first wife of the appellant, was not proved.

6. The appellant was accordingly reinstated in service. Thereafter, the present respondent filed an application before the Chief Judicial Magistrate, Sonitpur, Tezpur under Section 125 of the CrPC seeking monthly maintenance from the appellant. Since, the appellant was posted at Manipur, he could not properly contest the said application at Tezpur. For his absence, the court of the Chief Judicial Magistrate, Sonitpur, directed him to pay Rs.2,500/- per month to the present respondent, as maintenance.

7. The appellant filed a revision petition before the learned Sessions Judge, Sonitpur, Tezpur against the said judgment. The revisional court also refused to interfere with the order of the trial court.

8. After all those incidents, the appellant filed the suit being T.S. 129/2017 against the present respondent seeking a declaration that she is not the legally married wife of the appellant.

9. The respondent pleaded before the trial court that the court of the Munsiff No.2 has no jurisdiction to entertain the suit because the subject-matter of the suit is governed by the FAMILY COURTS ACT . The trial court after referring to Sections 7 and 8 of the FAMILY COURTS ACT , dismissed the suit for want of jurisdiction.

10. The appellant preferred an appeal before the court of Civil Judge, (Sr. Divn), Sonitpur, Tezpur.

The appellate court also affirmed the view taken by the Munsiff No.2.

11. Mr. Biswas has submitted that the learned trial court has relied upon a decision of the Supreme Court that was delivered in Balram Yadav v. Fulmaniya Yadav , reported in (2016) 13 SCC 308 . According to Mr. Biswas, there is no Family Court at Sonitpur and therefore, the FAMILY COURTS ACT is not applicable within the district of Sonitpur. Mr. Biswas has further submitted that the FAMILY COURTS ACT create a bar in the jurisdiction of a civil court if a suit is filed under Section 34 of the SPECIFIC RELIEF ACT for a declaration as to the legal character of an alleged marriage. In order to buttress his point, Mr. Biswas has relied upon the judgment of the Hon’ble Supreme Court that was delivered in Samar Kuma