Andhra HC (Pre-Telangana)
Bolli Venkamma And Another vs Smt. Bolli Komaramma And Another on 12 September, 1995
Equivalent citations: AIR1996AP36, 1995(3)ALT588, I(1996)DMC231, AIR 1996 ANDHRA PRADESH 36, (1996) 1 HINDULR 452 (1996) 1 DMC 231, (1996) 1 DMC 231
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
ORDER
1. This is an unusual writ petition seeking a declaration that the alleged second marriage of respondent No. 1 with one Bolli Pochaiah is null and void and no legal rights accrue to her by virtue of such marriage as the said marriage was contracted during the subsistence of an earlier marriage between the said Pochaiah and the first petitioner herein. It is alleged that the first petitioner is the lawfully wedded wife of B. Pochaiah with whom she was married in the year 1955 and that the first petitoner has two sons and three daughters born to her by the said Pochaiah who died on 5-5-1995. It is further alleged that during the subsistence of the first marriage Pochaiah married the first respondent herein in the year 1972 after the Hindu Marriage Act came into force and that the second marriage is null and void ab initio. It is claimed that no question of bar of limitation arises as the second marriage is, in law, void ab initio.
2. The inspiration for filing this writ petition seems to have come from the recent judgment of the Supreme Court in Smt. Sarla Mudgal, President, Kalyanni v. Union of India, , wherein, it is claimed, the Supreme Court granted a similar declaration in writ petitions filed under Article 32 of the Constitution. I am afraid the petitoners cannot get any assistance from the said judgment and reliance on the same is misplaced. In that case the Supreme Court considered the question whether the second marriage of a Hindu husband after conversion to Islam without having his first marriage dissolved under law, would be invalid. The Supreme Court held that such a second marriage would be void in terms of the provisions of Section 494, I.P.C. and the apostate husband would be guilty of the offence under Section 494, I.P.C. It is pertinent to note that the Supreme Court, after answering the said question of law, directed the petitioners in those cases to seek any relief which may be available to them under law in appropriate proceedings. The said judgment, therefore, is of no avail of the petitioners.
3. A proceeding under Article 226 of the Constitution is primarily meant for the enforcement of a legal right and for securing appropriate relief flowing therefrom. It is not akin to a declaratory suit. Even under Section 34 of the Specific Relief Act, which enables a person to institute a suit for declaration as to status or right, it is provided that the Court shall not make any such declaration whether the plaintff, being able to seek further relief than mere declaration of title omits to do so. Therefore, the general rule is that a mere declaration is not a relief which can be appropriately granted in a writ petition (See Chiranjitlal v. Union of India, and Makhan Singh v. State of Punjab, . However, this may not be an infliexible rule and there might some exceptions where fundamental rights are violated.
4. Even assuming that this writ petition is maintainable, I am not inclined to entertain the same for the reason that two civil suits are admittedly pending between the parties in the civil courts where the status of the first respondent and the question of her right for a share in the properties of Bolli Pochaiah are in issue. It is open to the petitioners to raise all the contentions raised by them in the present writ petition in those suits. Further, I am of the opinion that the adjudication of these questions involves disputed questions of fact requiring evidence and as such it is not possible to adjudicate them in this writ petition. I am also not inclined to entertain this writ petition on the ground of delay and laches as the alleged second marriage took place in 1972 and this writ petition is now sought to be filed after a lapse of 23 years.
5. For all the foregoing reasons, I am not inclined to entertain this writ petition and it is accordingly dismissed.
6. Petition dismissed.