Karnataka High Court
Bhuvaneshwari vs Revappa @ Ranisiddaramappa Kol on 11 December, 2009
Bench: D.V.Shylendra Kumar, N.Ananda
a
IN THE HIGH COURT OF
CIRCUIT BE NOH AT TOULBARGA, .
DATED THIS THis 117s DAY G OF D ioe CEMBER 2099
PRES bs NUP
THE HON BLE MROUSTIC E i 3: vy SHYL ENDRA KUMAR
ee weet
ACAD TS
TH E HON'BLE Mi Bog us TCR. NLANANDA
M. aa A, No. 2006/ 1997 FC)
BETWEEN: 7
BHUVANESHWARL
d/o MALLAPA GAL 7
MAJOR. OCC: HOUSEHOLD
WORK OF BADIMAMAN,
ERLO BIJAPT JR
.. APPELLANT
ANUEEVKUMAR PATIL, ADV)
DARAMAPPA KOLLI
la) SHAVANTRAWWA
_ W/O SIDDAYYA KOLI, MAJOR,
OCC: HOUSEHOLD, R/O HUDC
BAGALKOT ROAD,
BIJAPUR.
J COLONY
2
b) BE 1 MRS REE @ a 2 BHAR' a
YELLAPPARAUALe MATH 7
KIRANA SHOP, SOLAPUR. ROAD,
BIJAPUR. a ~ vee RE SPC NDENTS
(R-1(a) IS SERVED: APPEAL AGaInSt Rif) Is
DISMISSED) :
MPLA, Js FILED. u/s 19¢2) OF TH fo "FAMILY COURT
ACT AGAINST THE JUDGMENT. AND AWARD DAT 'ED
29.11.1996 PASSED IN 0.$.62/93 ON'FHE PILE OF FAMILY
COURT JUDGE,..2y LAPUR _DECREEING THE SUIT FoR
DECLARATION THAT DEFE
WIFE, ERGO Ce
» This appeal - coming en for hearing this day,
SRI 1.V. 'SHYLEI RAD
following. )
& UDGMENT
tt lus appeal under Section i9(1) of the Family
Sonrt Ae ot: 1984, by the defendant in 0.9. No.62/93 on
. the le. of Judge, Family Court, Buapur, is directed
against the Judgment and decree passed in the said
2. The sult was bY a person whom the defendant
claimed, believed and asserted te be her husbar 1, but
i DANT iS NOT THE LEGALLY
Je, delivered the
who sought for a declaration, that foo, oo ne Balive --
deciaration that the defend hanit is 1 TO this lega Ly wedde
wife, and for consequential relict, with me. part of the
pleading indicating any eve:
t [developmen it to ) show tha
there was some forma of the marriage having taken place
between the parties.
3. The-< ASE, of ine plain tial is that the defendant is
his close relat a,
vis, it lis" aister's daughter; and out of
lave and al : Veci ction fo for his sister and brother-in-law, he
used dt visit thems regularly. On such occasions they
we re expr 'ES . sing their desire to give their daughter in
thartinge te to the plainti®, but his reaction was one of
'stubboria refusal, and is said to have indicated to the
exbibited by all family members and well-wishers
Further case of the plaintiff is that he married one
Bhaegvyashri @ Bharati, daughter of Mah acevappa and
&
4
ry, ee
Be
the marriage was performed on 12. 12.1990
cal
Ambabhavani Temple at Pulajapl i, Matha arashtra, in
accordance with the customs of the. commnmnity and at.
thal Ume, neither the defendant nor -hér parents were
present,
4, lt is the further ves "lon of the plaint iY that atter
his marriage With Bd shri @ Gherati, he had a
happy. married Hife al ied they had a daughter also from
a
the wedk BCH. Cis also is case that the parents of th
defendarit we Te very disturbed with this development as
thes wi fish Was. MOL materialised, ang on 34.19, 1acr
ovat
they caine. to us house and pressurized him not only to
mariy De de fends mt, but also to divorce Phagyashri @&
Bharati. | 'The paintzY was shocked at the ur ELLY
behaviour of the parents of the defendant who, as 4
retaliatory measure, had filed a falee and frivolous
nainienance case against him under section 125
5
CrP.c. which was registered as Cri minal Mise. 275/90 .
on the file of UMFC Court, Bilapur.
6. It is these developments wihric a according io the
i? te. approach th
oh
maimnnfl, gave cause for the -plaiy
court seeking for a declaratibr and. consequential relet
as under
' PAE dec clarin ig that the defendant iS not the
| oaile wedded wife of the plaintiff:
b) AL consequential relief of permanent in Junction
: "d nga inst the defleridant restraining her
i gz the Uaiue of the plaintiff as husband
1D any dublic- place , office records, etc.:
Cc} Cost of' the suit be awarded to the plai aintift frorn
. the defs sridant; and
~ dp Plaineyt may be allowed to amend the plaint as
and when necessary.
On 'issue oF notice, the defendant entered
appear ance through a counsel and fled written
: statement denying the averments and wolle admitted
'that fie plaintiff is 2 berinanent resident of Bijapur,
. denied all other contents of the piaint. The defend ant,
on her part, pleaded that she nad been married te tne
plaintiif in the year 1986 at Eshwaralinga Temple at
6
Bijapur, that they had a married Ife for read @ ak
ill-treating the defendant and out, of greed. made egal
demands for excess dowry. gold, ete. P Payment of |
Rs.4,000/~- and two- bolas | of god during marriage did
not satisfy the plaintit and at. the behest of one
Basappa, he started harassing the "defendant for more
money and suore gifts which the defendant and her
parents could not cope with, The plaintiff harassed and
ill-treaied her, aia. net. provide her food and left her to
fend for herself in t the rented house they had taken after
os marriage and | he (plaintiff) started living with his
~. brother, Basappa.
8. . The defendant further pleaded that the plaintiff
a . has suppressed ali these facts before the court and has
"come up with a story only to please his second wife
whom he married in 1990. She claimed that there was
no cause of action for the suit and that the suit itself
g
7
a .
Was not maintainable and also pleaded for disinigsal o ar
cco of th
9. While such 'the pleadings, we And very
trangely thet the sear Nec dq iuidge OF the 'trial. bourt acd
not carec to frame. relevent is oS: ues, but has very
conveniently shirke d His. dats. 'and responsibility on the
oremise thas hy pr reece 'Ssor i | had listed the matter for
evidence and it isn ot 'own: as to whether any effort
Was taade by the learhed trial Judge to frame any issues
at all at any poit of time.
poet
€
ai
oe 1. "Phe matter being betore the Family Court in tt
AL bature of vig nal suit, and Section 10 of the Pamily
Courts: Auch: exp ressiy spelling that the procedure to be
= followed by the Family Court should be in terms of the
Cede of Civil Procedure Sand iso, framing of issues ina
suit which is a very ig ApOTLANL stage for any suit to be
iret
ome
Seow
om
fae)
itied being overlooked, is a glaring deficiency ir
Judgment of the trial court.
it. The learned judge in the course of juderaent
proceeded to formulate issues which are asian dér:-.
1} Whether the plaintiff.has shown. thar. the >
2) Whether the defendant has: shown that she is
the legally wedded wife of the plainuifft? | oo,
3) Whether the plaintiff is entitled for. the reliefs:
claimed? ; mS
and has answered point 'no.{ lyin the affirmative and
point no.(2) against the. defendant cand corisequentiy
decreed the'suit.in terms of the prayer.
12. tt appears. the. plaintiff? got himself examined as
PW1. his brother. Basappa Sidraya Kolli as PW2. and
laid claim through . PW3-Bhagyashri and one
mo Nédrahamed Ratanasha Makanadr as PW4. On behalf
os ; ef the "aefendan (, the defendant deposed as DWt.
anor her, brother of the defendant, Shrishaila
o, Sidraya' Koll, as DW2. Parvati Siddappa Halasangi, as
~ OWS and mother of plaintiff namely Shavantrayva
Sidraya Kolli as DW4. DW3 stated that she had
9
witnessed the marriage of the defendant With the .
plaintiff in the vear 1986 ana bwa, very mother of the
plaintiff-DW4, deposed t that she had witnessed' the said.
Mmaiviage.
13. In spite of such strong and unishakable evidence
Supporting the case or the dete sudant, the learned judge
very strar wgely : has : evaluated ed 'such evidetice in a
per functors "y ; atanner" and "has virtually recorded a
perverse -- iB to Corie tude that the marriage of the
plaintiff neve r te ok plage with the defendant t and, on the
other han a, the ena had married the other lady,
vir., Bhogvastu 4 @ Bharati in the year 1990 and in this
view, déc Teet! i the s uit.
"E40 1 is aggrieved by this judement and decree the
present appeal is filed ra ising several grounds.
lo. We have heard Sri Sa uyjeey Kumar Patil, learned
counsel for the appellant, perused the record, looked
10
into the judgment and bestowed our anions concern fo
é
ihe innumerable questions of law that: aris se in this
16. It appears the plaintiff ii » the s suit, who is the
espondent in i his appeal, dic od sounewhen 'e during 2002
and though this court eid expy ess a doubt about the
further smvival, of the appeal "in view of this
development, aid ; at the request of the learned counsel
for ihe appellanit, a d foun 266 F the matter by two weeks to
examine'! ; thie position a per the order dated 18.7,2002
reads | as under:
Fe Miass/NKRS 18.7.2002
- Appellant's counsel states that
bis client has been mformed that
the respondent has passed away
recently and conseq uentiy, Do purpose will be served by resorting LO peper publication. Therefore, he has also requested for two WEEKS time for purpose of considering whether this appeal survives and if it survives what Steps that the appellant has to take.
ll To be re-listed for further or Jers, - after three weeks. , Anyhow, later the appellant had taken steps to bring on . record the legal heirs and that one lége al heir, zi sie. - Hfa) mother of the res sponides nt havi 0g 'been served and remained unrepresented, a nid steps 3 for éffecting service om the other egal 'heir: RD), had taken out paper publication in a IAYA. KARN, ATAKA Kannada daily new Spaper on 19.3 2004, and a copy of this is also filed in the register along with a meme dated 27.3. 2004, iF A since © the paper publication had been taken, it spe ws it iL was characterized as defective by the registry ul farther: : opportunity having been giver: to the 7 wae to lake fresh steps in terms Of the order dated : 3. a 2006 a nd notwithstanclir ig these orders, this court by mistake Having insisted on yet another publication in "respect of R-1(b}, and this m istake having continued further, a peremptory order was passed on 2.9, 2008, va 12 a ge observing that if n "COSSary steps as sncieated earlier ~ within two weeks are not t taken, the appeal s shai! i Stend dismissed as against iuniserved R- ub
8. in the ght of the position: stated above and as noticed in the onder. sheet, wen fis nad it was an unnecessary order and hold * chi vat 'the > appeal has very aruch rer niained. alive. to "see. this day as against R1fa) and Kk 1b) This: ast ch. of the inatter gains importance with 'reference to. the ews that we teke on various questior sof | aw 'that arise, lv, we find that a suit of this nature was rot
- even ichtable before the Family Court for the simple reason, th sit tne subject matter of the Paeriy Court ; solar: as Jurisdictional aspect is concerned, it is determin eC in terms of Section 7 of the F amily Courts "Ac "tC which is as under:
"Y. Gurisciction <~ { 1} Subject to the other Se provisions of this Act, a Family Court shall -- [3 (Q) have and exercise aij the'. jurisdiction © exercisable by any district count, or : aby subordinate civil cot wt under any. law for 'ie lime being in Tere Ce in. r especi of suits and proceecines of tf ie b natur c relerred. to in the mx planatic ny apd 544, 'pong wor "eau"
ad De deemed, FOr. the pi "iy JOSES of exercising ch jurisdiction u nder Fst ich law, to be a trict court or, 2 'as 'the ase may be, such 7 late civil. court for the area. to which é jurisdiction of the Pamily Court extends. «EEE lanation ~The. suits and proceedings referred clon aré sults and proceedin 1gs of tine follows: 2g nature, name Iys- fa) &@ SUL-OF proceeding between the parties to a S marriage for a decree of nullity of marriage | 7 (dee 'laring the marri: age to be null and void or, a as tl 1€ Case may be, annulling the Marriage) or restitution of conga rights or judicial Stparaton or dissolution of mariage:
3) A Sut or pr oceeding for a declaration as to the Validity of a ; marriage or as to the matrimonial i4 (Cc) & suit or procee -ding between the, par ties to.
Marriage with respect-to the _ ropes rty of the parties or of either of: them.
id) @ sult or proceedi ng for an orde Por injunction in circumstances. arising: Sut 'of "a marital relationship, (€) @ suit or prec eccinys fora a declaration as to the legitimacy of ar ry pe Tso;
(} as Stilt OF r proceedinig for maintenan ICE; (gpa "suit: Or. Pree 768 ding i relation to the guardianship of the. person or tne custody of, or access to, ny minor.
42) Subiect to the other provisions of this Act, a Fatally Court shall also have and exercise- {a) he jurisdiction exercisable by a Magistrate of the frst class under Chapter Ix 'Pelating to _ order for maintenance of wife, children and
- 'otents of the Code of Criminal Proced ure, 1973 (2 of 1974); and
(b) such other jurisdiction as minay be conferred on it by any other enactment."
'uspite of best efforts to rope in the relief sought for b 7 fie plaintiff within the meaning of any one of the clauses (a} to (g) to the explanation of sub-section (1) of ;
oan Section 7 of the Act, we find that the relief in the nature of negative declaration in respect of a marriage that is never said to have taken place nor performed: in any - the plaint. there is no plea to support the Cause of action. nor cause of action "indicated. in the plaint to confer jurisdiction ore the Fainily Court, the Family Court did not have jurisdiction to entertain a suit of this nature, and t herefore . 'He ju dgin aint amd decree of the Family Count is not sust ainable in law. being a nullity. 20, "In any view, this judgment is not sustainable in law. We find even or: the merits of the case also, that ss ihe judgment isnot tenable, as the learned trial judge had not even taken care to frame relevant issues and on the available evidence on record, the suit could not have gy ~ been decreed at all. The findings in favour of the plaintiff when the evidence on record was heavily loaded against the version of the plaintiff and fully supported fo 16 the defendant's case. the finding is nothing short of a perverse finding. and even if the suit was tenable. tre judgment and decree based on such a perverse finding only deserves to be set aside.
20, We express so having. perused the eviderice of. DW1 to DW4 who have all stpported the case of the defendant in chorus' and. have "said that they hac witnessed the marriage beuween, the. partics and being such close relatives, infaet.DW4-mother of the plaintiff herself "having "eategorically and assertively deposed before. the court "that cher son had married the defendant:.there' was no way the court could have come to.the contrary Conclusion to declare that the defendant is not the legally wedded wife of the plaintiff,
210. in facet. we find a relief of this nature is ever 'bevond the scope of Section 34 of the Specific Relief Act aS a negative deciaratory relief to declare that the marriage had never taken place, is not one that can oa 1?
come within scope of Section 34 of the Specific' Relief Act.
22. Accordingly, when it is a.relief that cannot be granted in law, there is no way the civil court can grant a declaratory relief,
23. For this reason also. the appeal has to be allowed. We find good reasons to allew this appeal and set aside the judgment and decree, Accordingly, the appeal is allowed. The judgment and deeree of the trial court is set aside and -the suit stands dismissed.