Validity of marriage cannot be railed in partition suit.

Aggrieved over the fair and decreetal order dated 212. 2005 made in I.A.No.674 of 2005 in O.S.No.469 of 2004 on the file of the learned Additional District Court (Fast Track Court No.II), Coimbatore, the 7th defendant in the suit has filed the civil revision petition.

.2. The case in brief is as follows:

.Respondents 1 to 6 are brothers and sisters and the 7th respondent is the adopted son of deceased V.Janakiammal and K.Venkatesalu and son of the first respondent/plaintiff. The first respondent has filed the suit O.S.No.469 of 2004 praying to pass a decree (a) declaring the marriage between the defendants 5 and 7 as null and void and not valid in law; (b) partitioning the suit properties described in the schedule of properties into seven equal shares and allot one such equal share to the plaintiff; c) appointing a Commissioner to divide the properties and for awarding the costs. The seventh defendant has married fifth defendant. According to the plaintiff, the relationship between the fifth defendant and seventh defendant is within the prohibitory relationship and hence their marriage is null and void. Therefore, in the plaint, though it is a partition suit, a prayer is also made for a declaration, declaring the marriage between the defendants 5 and 7 as null and void and not valid in law.

3. The 7th defendant filed I.A.No.674 of 2005 in the said suit praying to take up the issue in respect of prayer No.1 (paragraph 16 (a)) in the plaint, as preliminary issue before recording evidence in respect of other points involved in the suit. The contention of the learned counsel for the petitioner/7th defendant is that Family Courts are established which can pass declaration regarding the marriage whether it is valid or null and void and jurisdiction of the regular Court is ousted.

.4. After contest, the learned Additional District Court (Fast Track Court No.II), Coimbatore dismissed the application on the ground that this issue can be decided along with the other issues during the trial of the suit. Aggrieved over the said order, the 7th defendant has filed the present civil revision petition.

5. Mr. M.S.Krishnan, learned counsel for the petitioner/7th defendant would contend that in a suit for partition, the validity of a marriage between one of the sharers with a third party, has no relevance. Whether it is valid or null and void, is not going to affect the rights of the parties in a suit for partition. Learned counsel for the petitioner would point out Sections 7 and 8(a) of the Family Courts Act, which read as follows:

"7. Jurisdiction: (1) Subject to other provisions of this Act, a Family Court shall,

(a) have and exercise all the jurisdiction exercisable by, any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation;

8. Exclusion of Jurisdiction and pending proceedings.--Where a Family Court has been established for any area, -

a) no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section".

Under Section 7(a) of the Family Courts Act, the Family Court constituted in the area shall have jurisdiction to try a suit or proceedings for a declaration as to the validity of the marriage or as to the matrimonial status of any person. Section 8 (a) is very clear that no District Court or any Subordinate Civil Court referred to in sub section (1) of Section 7, a Family Court shall have and exercise all the jurisdiction in respect of any suit or proceedings of the nature referred to in the Explanation.

6. Thus, it is clear that regarding marital status of the person or validity of the marriage of a person, cannot be gone into in a suit filed before the District Court or Subordinate