IMPORTANT POINTS
The provisions of Order VII, Rule 11(d) and Order XIV Rule 2(2)(b) do not apply to the facts of the case, as there is no bar to the suit created by any law for the time being in force. Likewise, as the 1st respondent has not filed a written objection, there is no foundation for his defence to assert that there is no valid marriage between him and the appellant.

JUDGMENT :

Dias, J.

The appellant, who is the petitioner in O.P. 128/2018 on the files of the Family Court, Ernakulam, is aggrieved by the dismissal of the original petition as not maintainable.

2. The appellant had filed the original petition, inter alia, seeking a decree to declare that she is the wife of the 1st respondent.

3. It was her case before the Family Court that she got acquainted with the 1st respondent. The 1st respondent used to visit her at her house at Varapuzha, and he finally adorned a thali chain on her and accepted her as his wife. They declared before the Altar of Jesus Christ that they have entered into the sacred covenant of marriage, and they would staunchly abide by it.

4. It was further averred that the marriage was witnessed by the driver and maidservant of the 1st respondent. Subsequently, on 8.11.2015, the 1st respondent again tied a thali chain on the appellant at Chittoor Dyana Kendram, a Christian Charismatic Retreat Centre. There also, the 1st respondent declared that he accepted the appellant as his wife and the appellant confirmed her consent in accepting the 1st respondent as her husband. They then started living together as man and wife.

5. The appellant had further pleaded that, subsequently, the 1st respondent adopted a recalcitrant attitude towards her and their relationship got strained and then he denied the marital relationship.

6. In the above compelling circumstances, the appellant filed the original petition seeking to declare that she is the wife of the 1st respondent.

7. The 1st respondent entered appearance in the case and filed I.A No.991/2019 under Order XIV Rule 2 (2) of the Code of Civil Procedure (in short “Code”), to hear the question of maintainability as a preliminary issue. The 1st respondent did not file any written objection to the original petition.

8. The 1st respondent contended that he never tied a thali chain on the appellant and that the allegation he entered into a marriage with the appellant was an absolute lie and that the allegations levelled against him were only to extort money.

9. The 1st respondent further contended that, as per the mandate under Section 5 of the Indian Christian Marriage Act, 1872 (hereinafter for brevity referred to as “the Act”), the marriage had to be solemnized by a person who has received episcopal ordination.

10. According to the 1st respondent, there is no provision in the Act to solemnize a marriage in any other form. Therefore, even assuming the assertions in the original petition to have any semblance of truth, there cannot be a valid marriage in the eyes of law.

11. The appellant opposed the application by filing a written objection and, inter alia, contended, that the application was not maintainable and that the dispute as to the marital status between the parties is a mixed question of fact and law, which can only be decided after taking evidence and hence he prayed the application to be dismissed.

12. The learned Judge of the Family Court, after hearing the counsel for the parties, by the impugned order held that there is no marriage between the parties because the marriage was not solemnised by a Priest and no notice was published. Accordingly, the learned Judge allowed I.A No.991/2019 and dismissed the Original Petition.

13. Heard learned Senior Adv. T. Sethumadhavan, assisted by Adv. T. Madhu, for the appellant and Adv. M.Balagovindan, for the 1st respondent.

14. Adv. T. Sethumadhavan argued that the impugned order is palpably erroneous because the original petition could not have been dismissed at the threshold. He contended that the averments in the original petition contain mixed questions of fact and law. He placed reliance on Ramesh B. Desai and others v. Bipin Vadilal Mehta and others [AIR 2006 SC 3672] to drive home his argument.

15. Per contra, Adv. M. Balagovindan argued that by virtue of O.VII, Rule 11(d) and Order XIV, Rule 2(2)(b) of the Code, the original petition was rightly dismissed in limine by the Family Court, as i