The Family Courts Act does not bar civil court jurisdiction for declarations regarding the legal character of an alleged marriage under the Hindu Marriage Act.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.36/2023 Date of Decision: 03rd July 2025.

Urmila Devi .....Appellant.

Versus Babu Ram …..Respondent.

Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge.

Whether approved for reporting?1 For the Appellant : Mr. Romesh Verma, Sr. Advocate, with Mr. Digvijay Singh Bisht and Mr. Sumit Sharma, Advocate.

For the Respondent: Mr. Aditya Chauhan and Mr.

Yuyutsu Thakur, Advocates.

Bipin Chande or Negi, Judge (oral).

The present petitioner i.e. plaintiff before the trial Court is aggrieved by the judgment dated 7.6.2023, whereby plaint filed by the present petitioner seeking a declaration to the effect that the petitioner’s marriage with the respondent is null and void with a consequential prayer that the defendant be restrained by way of a idecree for permanent prohibitory injunction from claiming to be his wife or to enter in the house of the petitioner has been rejected at the preliminary stage. The reason for the rejection being that there exists a specific remedy under Section 12 of the Hindu Marriage Act 1955 for annulling the marriage by procuring a decree of nullity under the said provision.

2. In other words, it has been held that the petitioner is not entitled to file a civil suit for declaration as has been done in the case at hand. The suit filed has been held to be not maintainable.

3. Heard counsel for the parties. Perused the impugned order.

1 Whether reporters of Local Papers may be allowed to see the judgment? YES

4. Marriage inter se the parties was solemnized on 22.1.2012.

The same, it has been averred in the plaint had been solemnized as P per the Hindu Rites and Customs. Two children were born out of the wedlock. It is averred in the plaint that on 15.2.2022, wHhen the petitioner procured a copy of the Parivar Register and her marriage registration certificate from the Gram Panchayat of the respondent, it transpired that the respondent is a Muslim by reoligion.

5. In the aforesaid facts and attending circumstances, it is averred in the plaint that since the respondent is a Muslim and is governed by Muslim law, hence, the marriage inter se the parties is no marriage in the eyes of law as per Section 5 of the Hindu Marriage Act 1955. Therefore, a prayer has been made to declare the marriage inter se the partiesC null and void.

6. Both the counsels contend that the suit filed by the present petitionehr is to be tried by Civil Court, however, the respondent submits that the same should be tried by the Civil Court in the first instance (Civil Judge).

7. Per contra, learned counsel for the petitioner contends that being a Civil Court, the Additional District Judge for whom the suit was filed was competent to hear the case at hand.

8. At the preliminary stage the Court is not called upon to record a finding about truth or otherwise of the allegations made in the plaint. The only question relevant for consideration at such a stage is whether on the basis of the averments made in the plaint and the prayers contained therein, the suit is a suit for annulment of marriage within the meaning of the Hindu Marriage Act or for a declaration under the Specific Relief Act.

9. In the instant case although the petitioner inter alia prayed for a declaration that the marriage between the parties was void, the same will P not make the plaint ipso facto a petition under the Hindu Marriage Act within the meaning of Section 19 of the said Act. Under SectionHs 11 and 12 of the Hindu Marriage Act, the circumstances under which a petition can be filed for annulment of marriage on the grounfd that the same is void are clearly specified. But in the instant case, such declaration that the marriage is void has not been asked for by the plaintiff on any of such grounds on which such an annulment can be obtained under Section 12 or even under Section 11 of the usaid Act. From the aforementioned, it is evident that the plaint filed in the case at hand is not a petition under the Hindu Marriage Act and/or Special