Karnataka High Court
Smt. Dhanu S vs Sri. Gopi on 29 July, 2024
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WP No. 23673 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 23673 OF 2023 (GM-FC)
BETWEEN:
SMT. DHANU S.,
D/O. SHIVASHANKARACHARI R.,
AGED ABOUT 25 YEARS,
RESIDING AT NO.132 E,
SORUNEHA CROSS AND ROAD,
VARTHURU,
BENGALURU - 560 087.
...PETITIONER
(BY SRI. JAYARAJ D.S., ADVOCATE)
AND:
SRI. GOPI,
S/O. MUNISWAMY,
Digitally AGED ABOUT 29 YEARS,
signed by RESIDING AT NO.51, 1ST STAGE,
MEGHA MADHURANAGAR,
MOHAN
VARTHURU HOBLI,
Location:
HIGH COURT BENGALURU - 560 087.
OF ...RESPONDENT
KARNATAKA
(BY SRI. NIRANJAN GANIG N., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 27.07.2023 PASSED IN O.S.NO.503/2023 BY
THE HONBLE VII ADDL. SENIOR CIVIL JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, IN REJECTING THE
APPLICATION FILED THE PLAINTIFF - PETITIONER UNDER
SECTION 31(2) OF THE SPECIFIC RELIEF ACT, 1963 READ
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WITH SECTION 151 OF CPC, 1908 VIDE ANNEXURE-A AND
ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
04.03.2024, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
Aggrieved by the order passed in I.A. in O.S.No.503/2023
dated 27.07.2023 by the VII Additional Senior Civil Judge,
Bengaluru Rural District, Bengaluru, the plaintiff is before this
Court.
2. The petitioner herein who is the plaintiff had filed an
application under Section 31(2) of the Specific Relief Act, 1963
read with Section 151 of CPC, praying the Court to direct the
office to issue necessary covering letter/direction to the Sub-
Registrar to implement the judgment and decree dated
10.03.2023 passed in the suit declaring that the registration of
marriage in terms of marriage certificate dated 23.02.2021 as
null and void which came to be dismissed by the Trial Court,
aggrieved thereby the plaintiff is before this Court.
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3. The suit is filed seeking to declare the alleged
registration of marriage between the plaintiff and defendant in
terms of marriage certificate dated 23.03.2021 in the office of
the Registrar of Marriage/Sub-Registrar, Varthur, Bangalore, is
null and void and pass necessary directions to expunge the
entries made in the Marriage Register. That suit came to be
allowed as per the compromise petition filed on 10.03.2023. As
per the compromise between the parties, runs as below:
a) The defendant hereby concede to decree the
suit as prayed for by the plaintiff in the above
suit and whatever allegations made against
each other in the aforesaid suit are hereby
withdrawn.
b) In view of the compromise arrived between the
parties and both of them have no claim of
whatsoever nature against each other.
c) Parties herein have agreed to bear their own
costs.
d) In view of this compromise, the suit filed by
the plaintiff in O.S.No.1265/2022 is liable to be
disposed of.
4. It is stated that after the decree is passed when they
have approached the Registrar and the Registrar had refused to
expunge the said entry in the Marriage Register. They have
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come before the Trial Court with an application under Section
31(2) of Specific Relief Act, 1963. The Trial Court had discussed
the scope of Section 31 of Specific Relief Act, 1963 and
observed that a reading of the provision makes it clear that Sub
Section 2 of Section 31 of the Specific Relief Act, 1963 provides
that if a registered instrument is cancelled, the Court must
send a copy of its decree to the officer in whose office the
instrument has been registered. So it is clear that it is the duty
and function of the Court to send a copy to the concerned Sub-
Registrar for necessary action as contemplated in the provision.
The Trial Court had felt that the petitioner had only sought for
relief of declaration that the registration of marriage between
her and the defendant as null and void. So no relief of
cancellation of the marriage or its registration has been sought
for. Further, the Trial Court had discussed Section 2(1)(j) of the
Karnataka Stamp Act, 1957 which defines the word 'instrument'
and the Court had felt that the compromise decree whereby the
marriage is declared as null and void is not a written
instrument. The marriage certificate cannot be construed as a
written instrument, so as to attract the provisions of Section
31(2) of the Specific Relief Act, 1963 and the question of
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sending a copy of decree to the Sub-Registrar arises only if a
registered instrument is ordered to be cancelled by the Court.
In the absence of such registered instrument being cancelled or
adjudged to be void or voidable and ordered to be delivered up
and cancelled, the plaintiff cannot be heard to contend that a
copy of the compromise decree shall be sent to the Sub-
Registrar. Further, the Trial Court felt that the Sub-Registrar
had issued the Marriage Certificate in the capacity of Marriage
Officer because the marriage of the plaintiff and defendant has
been registered in the office of Sub-Registrar who is the officer
of Registrar of Marriages, there is no necessity to send a copy
and as the decree is a declaratory decree, the question of
implementing the same do not arise and the Sub-Registrar is
also not a party to the suit. It is stated that the plaintiff has not
at all justified in seeking to implement the judgment and
decree before the concerned Marriage Officer and the issuance
of any covering letter or direction and the declaration of
marriage as null and void by a compromise decree cannot be
equivated with cancellation of registered instrument. Aggrieved
thereby the plaintiff is before this court.
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5. Learned counsel appearing for the plaintiff submits
that the Trial Court erred in dismissing an application seeking
the Court to direct the Registry to issue necessary covering
letter of his direction to the concerned jurisdictional Sub-
Registrar to implement the judgment and decree passed by the
Civil Court in declaring the registration of marriage in terms of
the marriage certificate is bad. It is submitted that when they
have approached the registering authority to expunge the
entries, though they have not issued any formal reply, but they
have expressed that since there was no specific direction from
the Civil Court they are not obligated to carry out any such
directions and in fact the plaintiff had also issued a legal notice.
Therefore, having no other remedy, they have come before the
Court under Section 31(2) of the Specific Relief Act, 1963.
Learned counsel submits that the Trial Court had failed to
exercise the powers conferred under Section 31(2) of the
Specific Relief Act, 1963 and basing on that this is not an
instrument and the same cannot be done as refused the
request of the petitioner. It is submitted that though the decree
is passed unless and until the said remarks are expunged the
relief that they have sought in a way is not granted. The Trial
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Court had also failed to consider the judgment relied on by the
petitioner.
6. Learned counsel appearing for the respondent has
supported the case of the petitioner/plaintiff.
7. Having heard the learned counsel on either side,
perused the entire material placed on record. The undisputed
facts of this case are that suit is filed seeking the declaration
that the registration of marriage between the plaintiff and
defendant is not accordance with Section 5 and 7 of the
Marriage Act and to declare the alleged registration of marriage
in terms of the Marriage Certificate dated 23.03.2021 as null
and void and they have also pleaded a relief to expunge the
entries made in the Marriage Register. Then, a compromise
decree was passed wherein the relief that is sought by the
plaintiff to expunge the remarks was also granted along with
declaring the marriage as null and void. When the remarks
were not expunged by the Registrar in spite of bringing the
notice of the same to the Registrar of Marriages as he has
showed his helplessness, unless and until an order is there
from the Court that the entries cannot be expunged, as there
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was no other alternative, they have come before the Court with
this application. At this juncture, it is appropriate to look at
Section 31 of the Specific Relief Act, 1963 which reads as
under,
31. When cancellation may be ordered.--
(1) Any person against whom a written
instrument is void or voidable, and who has
reasonable apprehension that such instrument,
if left outstanding may cause him serious injury,
may sue to have it adjudged void or voidable;
and the court may, in its discretion, so adjudge
it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under
the Indian Registration Act, 1908 (16 of 1908),
the court shall also send a copy of its decree to
the officer in whose office the instrument has
been so registered; and such officer shall note
on the copy of the instrument contained in his
books the fact of its cancellation.
8. Section 31(2) of the Specific Relief Act, 1963 says that
if a registered instrument is cancelled, the Court must send a
copy of decree to the officer in whose office the instrument has
been registered and such officer shall note on the copy of the
instrument contained in the book the fact of it cancellation. The
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Trial Court had rejected the request of the plaintiff as the Court
had considered what is an instrument as per Section 2(1)(j) of
the Karnataka Stamps Act, 1957 and the Trial Court had felt
that the marriage entries in the Register do not amounts to an
instrument and held that the Court cannot pass any order. It is
necessary to look at Section 2(1)(j) of the Karnataka Stamp
Act, 1957. A bare reading of the instrument shows that
"instrument" includes every document [and record
created or maintained in or by an electronic
storage and retrieval device or media] [Inserted
by act 24 of 1999 w.e.f. 18.8.1999] by which any
right or liability is, or purports to be, created,
transferred, limited, extended, extinguished or
recorded;
9. The marriage between the parties has been registered
with the Registrar of Marriages and by such document, the
rights of the parties are created making them a wife and
husband. In the considered opinion of this Court, the Trial
Court in a very hyper technical manner had considered the
scope of Section 31(2) of the Specific Relief Act, 1963 and the
instrument or the written instrument as defined under the Act,
while interpreting the provision of law, it has to be for the
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purpose of advancing the cause of justice. Any interpretation
which frustrates the very object should not be followed. In this
case, the Trial Court by way of a compromise decree had
already declared that the marriage is null and void and the
relief that is sought to expunge the said entries in the Marriage
Register maintained by the Registrar of Marriages. By allowing
the application and the Trial Court by sending a covering letter
as enunciated under the Specific Relief Act, 1963, the purpose
for which the suit is filed would be achieved and the parties will
get substantial relief.
10. In the considered opinion of this Court, in the interest
of the parties and the Trial Court ought to have allowed the
application. Hence, this Court is passing the following,
ORDER
i. Accordingly, the Writ Petition is allowed by setting aside the order in O.S.No.503/2023 dated 27.07.2023 by the VII Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru. Consequently, the I.A. is allowed. ii. All I.As., in the Writ Petition, shall stand closed.
SD/-
(LALITHA KANNEGANTI) JUDGE BN, List No.: 1 Sl No.: 53