Delhi District Court
Shyla Shanker vs Anita W/O Late Sh Kunal Bose on 5 March, 2015
Page 1 of 17
IN THE COURT OF Ms.SUNENA SHARMA
Addl. Distt Judge - 04 (SE)
SAKET COURTS COMPLEX: NEW DELHI
RCA No. : 28/2014
Unique Case ID No.02406C0325722014
Date of Institution : 26.11.2014
Arguments concluded : 05.03.2015
Date of decision : 05.03.2015
Shyla Shanker
w/o late R Sudarshan
R/o 304, Rachna Sahil Apartments
Subhash Nagar, South Ambazari Road,
Nagpur - 440022
..............Appellant
V E R S U S
Anita w/o late Sh Kunal Bose
r/o 18E, Pocket - L,
Sheikh Sarai, Phase - II,
New Delhi ............... Respondent
J U D G M E N T
1. By this appeal appellant has assailed the impugned order and decree dated 27.10.2014 whereby learned Trial Court rejected the plaint under Order 7 Rule 11 CPC of Civil Suit No.131/2014 filed by appellant against respondent for seeking reliefs of declaration, mandatory injunction & permanent injunction.
2. At the outset, it is worthwhile to note that another connected RCA No.28/2014 Shyla Shanker v Anita Page 2 of 17 RCA bearing No.27/2014 is also pending in this Court. Appellant's another CS No.130/2014 filed against one Juni @ Panmaya Tamang & Ors challenging the validity of her marriage with appellant's deceased son Kunal Bose was also partly rejected by learned trial Court vide order dated 27.10.2014 against which said RCA has been preferred.
3. It is the case of appellant that she is the mother and sole legal heir of late Kunal Bose, who expired on 14.02.2014 and had allegedly married respondent on 19.06.2002 at Mandir in C R Park, New Delhi as per Hindu rituals and rites. The respondent had represented to deceased son of appellant that she was unmarried, however in the year 2007, Kunal Bose came to know that respondent was already married to one Sh Bhim Singh Negi and had three children from that wedlock. On coming to know about this fact, Kunal Bose filed a petition under Section 11 of HM Act and during pendency of said proceedings, he died on 14.02.2014. It is also averred that Kunal Bose had also married with one Juni Tamang in respect of which aforementioned RCA is pending. In narrow compass the reliefs claimed by appellant before learned Trial Court, as mentioned in the impugned order are as under: "i. Allow the present suit by passing a decree for declaration, in turn declaring the marriage dated 19.06.2002 solemnized between the defendant and lat Kunal Bose at Mandir of C R Park, New Delhi as nonest, null and void ab initio;
ii. Pass a decree of mandatory injunction by restraining the defendant from representing herself as the wife of late RCA No.28/2014 Shyla Shanker v Anita Page 3 of 17 Kunal Bose and / or claiming any rights in the estate left behind by late Kunal Bose consequent upon his demise and / or as his widow, including the property bearing No.J1930, C R Park, New Delhi;
iii. Pass a decree of permanent injunction restraining the defendant her agent, assignees, representatives, attorneys, from in any manner selling, alienating and creating third party rights in the estate left behind by late Kunal Bose consequent upon his demise, as his legal heir/widow, including the property bearing No.J1930, CR Park, New Delhi. "
Learned Trial Court vide impugned order held that prayer Nos.1 & 2 are related to each other and prayer No.1 itself is beyond the jurisdiction of the Trial Court in view of the mandate of Section 19 of H M Act. As far as third prayer is concerned, learned Trial Court has observed that appellant is neither the owner nor in possession of the property in dispute, therefore, the efficacious remedy of seeking declaration and possession has not been exercised by appellant, hence the plaint was held to be barred under Section 41 (h) of the Specific Relief Act and rejected under Order 7 Rule 11 CPC.
4. Though, respondent contested the suit and filed WS which is there on record, however, since the plaint has been returned under Order 7 Rule 11 CPC, the averments made in the plaint and documents filed by appellant are only required to be considered. Hence, the contents of WS filed by respondent are not being looked into at all.
5. Being aggrieved from the impugned order, appellant preferred RCA No.28/2014 Shyla Shanker v Anita Page 4 of 17 the present appeal mainly on the following grounds :
i) That order of learned Trial Court is against the facts and law and is not sustainable.
ii) That learned Trial Court failed to appreciate that the Trial Court falls within the definition of District Court and the civil suit having pecuniary jurisdiction of Rs.1.50 Lac has to be instituted before learned Senior Civil Judge.
iii) That learned Trial Court directly resorted to Rule 11 of Order 7 CPC without resorting to Rule 10 and 10A CPC and the suit has been instituted by a third person to the marriage in question, hence, Section 19 HM Act would not have any applicability.
iv) That appellant is Class1 legal heir of late Kunal Bose and has rights over the estate of the same and since the marriage with respondent was null and void, appellant has no other alternate and/or efficacious remedy available for claiming her rights, except for filing the present suit.
6. On issuance of notice, appearance has been entered in the appeal and learned counsel for respondent opted not to file any reply to appeal and argued the appeal straightway. He has argued that appellant has failed to point out any valid ground on the basis of which impugned order or decree may be faulted, rather learned Trial Court has passed a reasoned order after appreciating all the material on record by both the parties.
RCA No.28/2014 Shyla Shanker v Anita Page 5 of 17
7. I have heard the submissions of learned counsels for parties and with their assistance also perused the Trial Court Record.
8. The observation of the learned Trial Court with regard to bar of jurisdiction qua the prayer clause (i) and (ii) of the plaint appears to have come mainly in view of bar of Section 19 of the Hindu Marriage Act, which reads as under: "19. Court to which petition shall be presented Every petition under this Act shall be presented to the district Court within the local limits of whose ordinary original civil jurisdiction
(i) the marriage was solemnised, or
(ii) the respondent, at the time of the presentation of the petition, resides, or (iiia)in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive."
However, it is pertinent to note here that under Hindu Marriage Act, any petition either for annulment of marriage u/Sec 11 and 12 of said Act or for dissolution of marriage by decree of divorce u/Sec 13 and 13B of the Act, can be filed only by the parties to the marriage. Whereas in the present case, suit has been filed by the mother of deceased Kunal Bose, who allegedly got married with respondent. It is the claim of the appellant that RCA No.28/2014 Shyla Shanker v Anita Page 6 of 17 the marriage of her deceased son with respondent is a void marriage because at the time of said marriage, respondent was already married and having three children and in the lifetime of her husband Sh Bhim Singh Negi, she entered into a second marriage with appellant's son Kunal Bose in contravention of Section 5(i)of the HM Act.
9. It is also argued on behalf of appellant that respondent on the basis of her alleged marriage with Kunal Bose is trying to enforce her rights in the estate of appellant's deceased son by claiming herself to be widow/Class I heir of deceased Kunal Bose. It is further argued that under Hindu Marriage Act, remedy under Section 11 for seeking annulment of a void marriage is available only with the parties to the marriage and not to a third person. It is further submitted that in the facts and circumstances of the case, appellant has no other remedy, than to approach a Civil Court for seeking declaration of marriage of her deceased son with respondent as null and void. To buttress his arguments, learned counsel for appellant placed reliance on the decision of Hon'ble High Court of Allahabad in Ram Pyari v Dharam Das & Ors : AIR 1984 Allahabad 147 wherein, in the context of applicability of Section 11 of the HM Act in a suit for declaration filed by a third person to the marriage it was held as under:
"11. A marriage is void where there is bigamy, consanguinity or within the degrees of prohibited relationship. In these cases the Court will regard the marriage as never having taken place and no status matrimony as ever having been conferred. Consequently, the parties never having been husband and RCA No.28/2014 Shyla Shanker v Anita Page 7 of 17 wife, either is competent to be called against the other. Consent of the parties performing the marriage in breach of Clause (i) of Section 5 cannot validate it. Such is not the position in case of a voidable marriage. A voidable marriage is regarded as valid and substituting unless a competent Court annuls it. Until the decree of nullity is obtained in accordance with Hindu Marriage Act the lie remains binding. So long as there is no decree they will live and die as married persons with all the incidents that attach to that estate. The expression 'void means null, ineffectual having no force or binding effect. Since a marriage performed in contravention of Clauses (i),
(iv) and (v) of Section 5 is void, it is incapable of being cured or ratified.
12. Precisely for the above reason that it has been recognized by the Courts that a third party can bring a suit in a Civil Court for its annulment even after their deaths. If this is not held the rights of the third party would be seriously prejudiced without having any right in them to seek redress in a Court of law. The case of a voidable marriage as stated above, stands on a different footing. The right given to annulment of marriage is confined to the parties."
10. The marriage in the instant case, has been challenged by the appellant on account of the fact that same is a bigamous marriage which is void ab initio under Section 11 of the Hindu Marriage Act. Considering the fact that remedies for annulment of marriage is not available to appellant under HM Act, there is no bar to the jurisdiction of Civil Court in entertaining such suit for seeking declaration of such marriage as null and void.
RCA No.28/2014 Shyla Shanker v Anita Page 8 of 17
11. Indisputably, the alleged marriage of appellant's deceased son with respondent is directly affecting the rights of appellant to seek any claim over the estate of her deceased son as both the appellant as well as respondent are claiming themselves to be the Class I heirs of deceased. The appellant is claiming succession on the basis of her status being the mother of deceased whereas respondent is basing her claim on the estate on the basis of her alleged status of being the widow of deceased Kunal Bose. Had it been the case of a voidable marriage, this Court would have certainly concurred with the reasoning of learned Trial Court because such marriage is void only at the option of either party thereto. But, in the instant case, marriage of respondent with Kunal Bose is alleged to be a void marriage in view of Section 11 of the Hindu marriage Act. Kunal Bose who is one of the party to said marriage has already expired and now his mother being the appellant herein whose rights are directly in clash with the rights of respondent over the estate of deceased Kunal Bose, has no other remedy than to approach a Civil Court for challenging the validity of marriage of her son with respondent and to seek declaration in this regard.
The decision relied upon by appellant in Ram Piyari (supra) is directly applicable on the facts of the instant case. Identical point had arisen for consideration even before the Hon'ble Jammu High Court in the matter Lajya Devi v Kamla Devi : decided on 21.05.1992. In the said decision, after referring to various decisions of different High Courts including the case of Ram Piyari (supra) similar view was taken and a civil suit filed by a third party for declaration of a marriage as null and void was RCA No.28/2014 Shyla Shanker v Anita Page 9 of 17 held to be well maintainable.
Hence, in the backdrop of above discussions, it is held that Section 19 of the Hindu Marriage Act has no applicability in the facts and circumstances of the case, and jurisdiction of the Civil Court is not barred.
12. The third relief of permanent injunction was also held to be not maintainable in the impugned order by learned Trial Court by observing that same is not maintainable in isolation without the relief of declaration and possession. It was held that since the appellant is not in possession of the property in question, therefore, she is not entitled to seek the relief of permanent injunction without seeking the relief of declaration and possession. However, in view of my above findings with regard to maintainability of other two reliefs, even the third relief of permanent injunction as prayed in clause (iii) cannot be held to be not maintainable in view of Section 41 (h) of the Specific Relief Act, as said relief, in my view is the offshoot of main relief of declaration and has been sought as a consequential relief. Hence, in my view, the impugned order is erroneous and untenable in its entirety.
13. Counsel for respondent raised the contention that for the sake of argument even if it is assumed that suit is not barred under Section 19 of the HM Act and is entertainable by a Civil Court, even in that case Civil Court's jurisdiction is clearly barred in view of Section 8 of Family Court Act 1984 as the nature of the present suit is squarely covered in clause (b) of RCA No.28/2014 Shyla Shanker v Anita Page 10 of 17 explanation to Section 7(1) of the said Act. He argued that vide instant suit, appellant has challenged the validity of her deceased son's marriage with respondent and in other words, she is seeking declaration with regard to marital status of respondent which clearly falls within the ambit of clause
(b).
14. Per contra, counsel appearing on behalf of appellant has argued that under clause (b) of Section 7(1) of the Family Court Act, 1984, suits filed by a person who is not party to the marriage under dispute are not covered. Learned counsel submitted that under said clause, only spouses to the marriage can approach the Court for seeking declaration of validity of their marriage or their marital status. In support of his arguments, he has relied upon the following judgments:
(i) P Srihari v P Sukunda & Ors : 2001(2) ALD 72;
(ii) Davu Gopal Lunani v Siva Gopal Lunani & Ors : 2014 (1) ALT 396;
(iii) B Gajendran v Adhilakshmi : 2013 (3) MLJ 814; and
(iv) Manita Kurana v Indra Khurana : 2010 (167) DLT 58.
15. The aforementioned argument of appellant's counsel is rebutted by the opposite counsel by submitting that suits or proceedings filed by parties to marriage are already covered in clause (a) of Explanation to Section 7(1) and therefore, clause (b) covers only the suit filed by third party for challenging the validity of any marriage.
RCA No.28/2014 Shyla Shanker v Anita Page 11 of 17
16. For correctly appreciating the respective contention of parties, it is necessary to go through the relevant provisions of Family Court Act, 1984. Section 7 & 8 of the said Act reads as under: "7. Jurisdiction.(1) Subject to the 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; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court, or as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation The suits and proceedings referred to in this sub section are suits and proceedings of the following nature, namely:
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void, or as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c)a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
RCA No.28/2014 Shyla Shanker v Anita Page 12 of 17 (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
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 subsection (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to that subsection;"
17. I have gone through all the judgments relied upon by parties in support of their arguments. Although, none of the judgments cited above are directly touching the point in controversy, but still the findings given by the Hon'ble High Courts in said judgments would help us to understand the correct import of aforementioned provisions of the Family Court Act, 1984.
18. In P Srihari (supra) the Hon'ble Andhra Pradesh High Court had an occasion to discuss the scope of jurisdiction of Family Court and held that one of the essential ingredient for a dispute to come before a Family Court is that it should be a dispute between husband and wife and may include children said dispute can be with regard to their marital status, divorce, restitution of conjugal rights, judicial separation, child custody, RCA No.28/2014 Shyla Shanker v Anita Page 13 of 17 maintenance as also property sharing. It was further observed as under: "The object and intendment of the Family Courts Act is to try the family matters arising out of marriages of the parties including the maintenance and adoption of the children as also the dispute relating to property and that is so clear from the preamble of the Act itself. Even if the preamble cannot be taken to be an absolute guidance for considering the provisions of the Act, reading Section 7, as a whole, cannot leave any manner of doubt whatsoever that essentially the parties to be husband and wife and may also include children. But, if one of the spouses is absent in the litigation, then it can never be considered as a cause falling within the realm of the Family Court. The Act being exclusionary in nature and has been enacted for the purpose of resolution of disputes of a particular nature and enumerated in the Explanation, it is not for this Court to enlarge the same because of the plain language employed therein. It is a salutary principle of interpretation of statutes that when the language of the statue is plain and unambiguous and in fact made clear by the Explanation, it is not for the Court to import anything not stated therein."
19. In Davu Gopal(supra) the matter was relating to clause (e) of Section 7(1) of the Act and the Hon'ble Andhra Pradesh High Court held that under said clause, Family Court could not entertain any suit or proceedings for declaration as to the legitimacy of any person without establishing validly any claim of marital relationship of parents. And since in that case before the Hon'ble High Court, there was denial of martial relationship by defendant No.1 between him and defendant No.2, Civil Court's jurisdiction was held to be not barred under Section 8 of the Act as RCA No.28/2014 Shyla Shanker v Anita Page 14 of 17 the case was not falling in clause (e) of Section 7(1) of the Act.
20. In B. Gajenderan (supra) the decision of Hon'ble Madras High Court came to be passed for deciding a controversy relating to interpretation of clause (c) of Section 7 (1) of the Act. In said case, wife filed a civil suit for seeking permanent injunction against her husband for restraining her husband to alienate the schedule mentioned property without protecting plaintiff and her son's life, future and education. The facts of the case were that husband of plaintiff had entered into a joint venture agreement as a builder with the owner of suit property for raising construction of flats over the suit property and under joint venture agreement, husband had got a right to sell away some of the flats on completion of construction. The suit for injunction was filed to restrain the husband from selling away said flat and a contention was raised that suit is covered under clause (c) of 7 (1) of the Family Act. While rejecting the aforementioned contention, Hon'ble Madras High Court held that "the suit does not fall within the purview of any of the clause of explanation to Section 7 (1) of the Family Court Act as all these matters referred in said clauses relate purely to matrimonial relations between the parties. In other words, party who files suit before family court should have semblance of right or title over the property, whereas the dispute was not in respect of the property over which plaintiff claims any/semblance of right".
21. In R Durga Prasad v Union of India & Ors : 1998 (1) ALT RCA No.28/2014 Shyla Shanker v Anita Page 15 of 17 652, which was also later referred by the Hon'ble Andhra Pradesh High Court in another judgment in P Srihari (supra), question of constitutional validity of clause (a) of Explanation to Section 7 (1) of the Family Court Act, 1984 was in question. In said case, it was contended by the petitioner that Family Court Act by its very nature and constitution, deals with the causes arising out of the admitted marriage and not the disputed marriage. While rejecting the said argument, Hon'ble High Court held that in view of the objects, reasons and preamble of the Act, it cannot be considered that dispute with regard to very existence of marriage cannot be the subject for adjudication by Family Court. It was further held that the words 'statement of disputes relating to marriage' in statement of object takes in, not only the matters of an admitted marriage, but also a dispute with regard to very existence of the marriage as the existence or otherwise of a marriage is also a dispute relating to marriage. Accordingly, provisions of clause (a) and (b) of explanation to Section 7 of the Act were held to be constitutionally valid.
22. The scope of jurisdiction of Family Court also came to be discussed before Hon'ble Delhi High Court in Manita Khurana (supra) wherein while concurring with the view of Hon'ble Division of Kerala High Court in Joseph v. Marium Thomas : 2006 Indlaw KER 237, it was held that claim of a third party to a marriage even if she be the mother of one of the spouses cannot be adjudicated before the Family Court as Section 7 excludes the jurisdiction of the civil court only in certain matters which are relating to proceedings between the parties to the marriage.
RCA No.28/2014 Shyla Shanker v Anita Page 16 of 17
23. The proposition of law that emerges from the various cases discussed above is that an action challenging the validity of a marriage or marital status of a person cannot be brought before a family Court by a stranger or a third party. That is to say only party to the marriage can bring a suit or proceeding under Section 7(1) Explanation (b) for a declaration as to the validity of their marriage or declaration of their own marital status.
24. For instance, if B, a woman who claims herself to be the wife of A, is denied certain rights by A in his property and A denies B's marital status on account of the fact that at the time of his marriage with B, B was already married, hence, their marriage was a void marriage. In such a situation, A can bring a suit for annulment of marriage under Section 11 of HMA before a family court under clause (a) of explanation to Section 7(1) of the Act. Whereas, B can sue A before a family Court under clause (b) of explanation to Section 7(1), for seeking declaration of her marital status as wife of A.
25. In the instant case, although the marital status of respondent is in question but the same is not being challenged by a party to the marriage, but by a third party. Hence, considering the law laid down by various Hon'ble High Court in aforementioned judgments, it can easily be concluded that in the instant suit there is no bar to the jurisdiction of a Civil Court either in view of provision of Section 19 of HMA or in view of Section 8 of RCA No.28/2014 Shyla Shanker v Anita Page 17 of 17 Family Court Act, 1984.
26. Having regard to the aforementioned discussion, I am of the view that Learned Trial Court has committed an error by rejecting appellant's claim under Order 7 Rule 11 CPC. Hence, the impugned order dated 27.10.2014 is liable to be set aside. Accordingly, instant appeal is hereby allowed and the impugned order is set aside with direction to the Trial Court to proceed further in the matter in accordance with law. No order as to cost. Decree sheet be drawn accordingly.
27. Trial Court Record be remitted with copy of judgment and decree sheet henceforth and parties are directed to appear before learned Trial Court on 11.03.2015 for further direction.
28. Prior to parting with this judgment, it is necessary to note that nothing observed herein shall tantamount to an expression of opinion on the merits of respective claims of parties as raised in instant appeal or pleaded before learned Trial Court which are yet to proved by them by leading evidence thereon as per law.
Appeal file be consigned to Record Room.
(Sunena Sharma) Addl. Distt Judge04/SouthEast Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 05.03.2015.
RCA No.28/2014 Shyla Shanker v Anita