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TMI Blog2017 (9) TMI 1851X X X X Extracts X X X X X X X X Extracts X X X X ..... show of marriage was arranged by the defendant's father with the plaintiff by registration of the said marriage under the Special Marriage Act, 1954. The averments in the plaint are that no essential ceremonies of a Hindu marriage were performed and that there was no consummation of the said marriage thereafter. After narrating a litany of wrongs by the defendant, the plaintiff asked for the following reliefs: A. A decree of declaration that the defendant is not legally married wife of the plaintiff and that she has no right to claim the plaintiff as her husband inasmuch as the alleged marriages between the plaintiff and the defendant are not legal, valid and tenable in law; B. Permanent injunction against the defendant restraining her from claiming the plaintiff as her husband and disturbing the plaintiff at his office, on the way of the plaintiff going to office and coming back home; C. Temporary injunction; D. For such other relief or reliefs the plaintiff is entitled to in law and equity." 3. A written statement was filed by the present respondent in the said suit, denying all the allegations contained therein. While the said suit was pending, the plaintiff d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a party being left out. The Law Commission opined that there was no need to change the present law inasmuch as: "2.4 A third party (for example, a person interested in the estate of either the husband or the wife) can certainly question the validity of their marriage in a civil suit and obtain a finding, or he may even bring a suit for a declaration that the marriage was void. But such a decree, made by a civil court, will not be a decree of "nullity", as contemplated by matrimonial law. 2.5 A void marriage can, no doubt be invalidated at the instance of other parties, but it is better not to incorporate the remedies of third parties into the Hindu Marriage Act and confuse matrimonial relief with declaratory relief." The Law Commission then went on to state "2.6. This does not mean that third parties have no remedy at all. They have- but not by a petition under the Hindu Marriage Act. The Specific Relief Act, in Section 34, provides as follows: "Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the behest of the legal representative of a dead plaintiff. Thus, in Krishna Pal vs. Ashok Kumar Pal (1982) 2 Cal LJ 366 a Single Judge of the Calcutta High Court was confronted with whether a suit filed in the Munsif's Court for a declaration that there was no marriage solemnized at all would be without jurisdiction. Section 19 of the Hindu Marriage Act requires all suits or petitions filed under the Act to be instituted before a District Court, whereas a suit for declaration as to a legal status is to be instituted in the Munsif's court. After referring to the prayer in that case, the learned Single Judge found: "9. As already stated, the plaintiff has chosen not to pray for any relief either by way of annulment of decree of nullity or by way of a decree for dissolution of the alleged marriage. The plaint filed by him cannot be considered to be a petition under the Hindu Marriage Act. The plaintiff has sought for certain declaration regarding the status of the parties and for consequential reliefs and the learned Munsif has jurisdiction under the Specific Relief Act to consider whether the plaintiff has made out any case for obtaining such discretionary declarator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of marriage on the ground 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 S.12 or even under S.11 of the said Act. The instant suit really appears to be on the face of the plaint, a suit for declaration as to the status of the parties. 17. In deciding whether or not the plaint filed by the petitioner in substance is a petition under S.12 or under S.11 of the Hindu Marriage Act for annulling the marriage between the parties by a decree of nulling or for the matter of that under any other provisions of the Hindu Marriage Act and which is the proper forum for filing the suit, 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 Hindu Marriage Act or for a declaration under the Specific Relief Act. 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxx xxx xxx (c) xxx xxx xxx xxx xxx 13. It is obvious that a suit or proceeding between parties to a marriage for a decree of nullity or restitution of conjugal rights or judicial separation or dissolution of marriage, all have reference to suits or petitions that are filed under the Hindu Marriage Act and/or Special Marriage Act for the aforesaid reliefs. There is no reference whatsoever to suits that are filed for declaration of a legal character under Section 34 of the Specific Relief Act. Indeed, in Dhulabhai vs. Madhya Pradesh (1968) 3 SCR 662, this Court had occasion to consider whether the civil court's jurisdiction was expressly or impliedly barred by statute. After referring to a number of judgments, this Court laid down 7 propositions of law, of which two are of relevance to the present case: (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the principle of actio personalis moritur cum persona i.e. a personal cause of action dies with the person, all the rest of the causes of action which have an impact on proprietary rights and socio-legal status of the parties cannot be said to have died with such a person." 16. Learned counsel for the respondent has also argued before us that the 2006 suit is itself time barred inasmuch as the so called marriage between the parties took place on 13th December, 2002 whereas the suit was filed in January, 2006, that is beyond the period of three years mentioned in Article 58 of the Limitation Act, 1963. Shri Banerji, appearing on behalf of the appellant, has drawn our attention to Section 16(1) of the Limitation Act in this behalf and has argued that, in any event in so far as his client is concerned, the cause of action would begin to run only from the date of death of the plaintiff, and that since he has applied within two and a half months for continuing the suit, the bar of limitation would not apply. We do not propose to go into this plea in view of the fact that Shri Banerji has very fairly submitted before us that instead of driving the parties to another long litigation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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