Madhya Pradesh High Court
Sanjay Mishra vs Miss Eveline Jobe on 4 November, 1992
Equivalent citations: AIR1993MP54, AIR 1993 MADHYA PRADESH 54, 1992 MPRCJ 367 (1993) MARRILJ 245, (1993) MARRILJ 245
JUDGMENT V.D. Gyani, J.
1. This appeal is directed against judgment dated 31-7-91 passed by the 10th Addl. District Judge, Indore, in civil suit No. 19-A/90, dismissing plaintiff-appellant's suit for declaration that no marriage had taken place between him and respondent Miss Eveline Jobe and the marriage certificate (Ex.P. 1) dated 1-3-86 issued by the Marriage Officer, Calcutta and 24 Parganas, was null and void.
2. Admitted facts of the case are that the plaintiff-appellant born on 2-3-63 is a Hindu by religion. His parents are also Hindus by religion. At the time of alleged marriage he had completed 23 years; while the defendant-respondent who is Christian by religion was about 30 years of age in the year 1985-86. Her parents are also Christian by birth. It is the appellant's case that sometime in the month of March, 1986 the defendant-respondent started distributing photo-copies of marriage certificate (Ex.P. 1) amongst friends and also filed complaint in the Court of Sub-Divisional Magistrate, Indore, complaining that the plaintiff-appellant who was her husband had been wrongfully detained by his parents. Having come to know of such complaint being filed, the plaintiff-appellant on his own appeared before the said Court at Indore and submitted that he had never been wrongfully detained by his parents. He had also sworn an affidavit to the effect that he had never married the defendant-respondent. As an off shoot of these proceedings he also filed a civil suit in the Court of District Judge, Indore, seeking a declaration to the effect that no marriage took place between the plaintiff and the respondent, coupled with the prayer that the certificate of marriage dated 1-3-86 issued by the Marriage Officer, Calcutta and 24 Pargana was null and void and the registration of the said marriage was of no effect. The appellant has detailed the circumstances under which he was forced to sign the marriage application form under threat and intimidation in the Court of the Marriage Officer, Calcutta and 24 Pargana; although as a matter of fact no marriage as such had ever taken place between the two.
3. It was the appellant's case that his signatures were obtained under threat of committing suicide by the defendant-respondent in addition to force and coercion. He further pleaded that even under the law no Hindu marriage could take place between the plaintiff and the respondent and the Marriage Officer had not complied with the provisions of Section 16 and that she had no territorial jurisdiction.
4. The defendant-respondent in her written statement filed on 26-4-88 admitted that she was Christian by religion from her birth and was about 30 years and that her parents were also Christian by birth. The allegations about threat or intimidation by force or coercion were denied-
5. It was the defendant-respondent's pleaded case that she had married the appellant on 6-10-85 in Kali Ghat temple at Calcutta according to Hindu customs and rites and contended that the marriage certificate (Ex.P. I) was a valid one. One of her special pleadings was that she had got married on 6-10-85 and thereafter lived as husband and wife. The objection as regards territorial jurisdiction was also raised.
6. The trial Court on the basis of pleadings of the parties framed the following issues:--
(l) Did the petitioner sign the marriage application (in form No. 4) under intimida tion and threats of suicide by the non-appli cant? '
(b) Did the marriage officer not make the necessary inquiry before signing the marriage certificate?
(c) Whether the certificate of marriage obtained by the non-applicant by practising threats, intimidation, coercion, or fear of physical harm to the petitioner? (2) Whether, as such, no marriage, in reality was performed between the petitioner and the non-applicant? (3) Whether the marriage under Sections. 15 and 16 of the Special Marriage Act, 1954 could not have been performed between the parties to the suit? (4) Whether the marriage certificate dated
(a) 1 -3-86 purported to have been issued by the Marriage Officer, Calcutta, is without jurisdiction?
(b) Whether this Court is competent to adjudicate regarding the competence of the said marriage officer issuing the said certificate? (5) Whether the present petition as framed and filed is not tenable?
(6) Relief and costs?
7. Shri Kulshreshtha learned counsel appearing for the appellant contended that the trial Court was palpably wrong in holding that the marriage set-up by the defendant-respondent falls under Section 4 of Special Marriage Act, 1954 (for short 'the Spl. Act'). Learned counsel strenuously urged that it was not even the case set up by the defendant-respondent. The trial Court omitted to consider the specific case pleaded by the defendant that on 6-10-85 she married the appellant at Kalighat temple, Calcutta according to Hindu rites and rituals and on her own showing the marriage as solemnised was governed by Hindu Marriage Act (for short 'the Act'); but no such Hindu Marriage could legally take place under Section 5 of the Act. The trial Court erred in treating the marriage certificate Ex.P. 1 as issued under Section 13 of the Spl. Act; while in fact it is under Section 16 of the Spl. Act. The registration of marriage postulates a valid marriage as there could be no registration under Section 16 of the Spl. Act without there being a valid marriage and the Marriage Officer, Calcutta and 24 Pargana had no territorial jurisdiction over Hubali.
8. Shri Desai learned counsel appearing for the defendant-respondent on the other hand argued that there could be a valid marriage between Hindu and a Christian and there is a presumption in favour of valid marriage which the appellant had failed to dislodge. He strenuously urged that the Court at Indore had no territorial jurisdiction as the marriage certificate was issued at Calcutta. No cause of action accrued to the plaintiff-appellant at Indore. He also contended that even if there is some omission or lapse in following the procedure as provided by the Spl. Act, the same cannot be gone into by the Court at Indore. It is only the Cort at Calcutta which has jurisdiction to try such suit.
9. Since the question of jurisdiction has been raised by the respondent's counsel it is necessary to dispose of this point. One of the issues as framed by the trial Court on the point of jurisdiction was "Whether Civil Court at Indore had jurisdiction to try the suit"? This question would necessarily take me to the pleadings of the parties and the relief sought by the plaintiff. The first relief sought by the plaintiff is a declaration to the effect that no marriage ever took place between the plaintiff and the defendant and the plaintiff is not the husband of the defendant. Other relief such as issuance of Marriage Certificate by the Marriage Officer of Calcutta and 24 Parganas is null and void and the registration of Marriage under the provisions of Special Marriage Act, 1954 was not effective are merely ancillary in nature and consequential to the first declaration sought by the plaintiff. It was argued on this footing that the Court at Indore had jurisdiction to grant such a declaratory decree.
10. Shri Desai, learned counsel for respondent, on the other hand contended that the certificate having been issued by the Marriage Officer of Calcutta and 24 Parganas, the same cannot be challenged at Indore. The trial Court referring to Section 31(1)(II) has held that the Court at Indore was competent to entertain the suit. Section 31(1)(II) reads as follows:
Section 31. Court to which petition should be made (1) Every petition under Chapter V or Chapter VI shall be presented to the district Court within the local limits of whose original civil jurisdiction -- .....................
(ii) the respondent, at the time of presentation of the petition resides."
11. It is not in dispute that the time of presentation of the petition the respondent was residing at Indore and it is also an undisputed position that the parties were residents of Indore. The defendant-respondent was admittedly serving as Secretary in the Indore Office of Union Carbide (I) Ltd. and later transferred to Jabalpur sometime in the year, 1985. It is an admitted position that the plaintiff was posted at Indore Office of Hindustan Motors Ltd. at New Palasia, Indore and had gone to factory of Hindustan Motors Ltd. at Uttarpada District, Hubali for the purpose of merely training sometime in Aug., 1985. In view of the pleadings and undisputed position emerging therefrom the findings recorded by the trial Court on the question of jurisdiction and competence of the Indore Courts to entertain the suit cannot be faulted with on any legitimate ground.
12. Jurisdiction with reference to the subject-matter of the dispute as distinguished from local jurisdiction means jurisdiction with reference to the nature of the claim made by the plaintiff. A right to specific relief such as a right to declaration or injunction Under Section 34 of the Specific Relief Act, 1963 is undoubtedly a suit of a civil nature entertainable by Civil Courts and the Courts have power to grant such a decree.
13. A litigant having a grievance of a civil nature has independently of any statute, a right to institute a suit in some Court or other unless its cognisance either expressly or im-pliedly barred. (See AIR 1974 SC 1126, Gangabai v. Vijay Kumar and Ors. and AIR 1966 SC 1718, Abdul Wahid Khan v. Bha-wani). It has been held by the Privy Council as back as in AIR 1940 PC 105, Secretary of State v. Mask & Co. that every presumption should be made in favour of the jurisdiction of Civil Court and the Supreme Court has in AIR 1969 SC 560, (Dewaji v. Ganpatlal), held that the exclusion of jurisdiction of Civil Courts has not been readily inferred. Such exclusion must be explicitly expressed or clearly implied. It is a cardinal rule of Interpretation that a provision of law ousting the jurisdiction to a civil Court, must be strictly construed and the onus lies on the parties seeking to oust the jurisdiction (See AIR 1967 SC 781, Shri Vedagiri Lakshmi Narsimha Swami Temple v. Induru Pattabhirami Reddi).
14. In view of the foregoing discussion the objection regarding jurisdiction, as raised by the respondent, is liable to be rejected and is accordingly rejected. The trial Court considering the language of Section 31(1)(II) has correctly held that the Court at Indore was competent to adjudicate the matter.
15. It may be noted at this stage thatp1 Sub-section (2) of Section 24 of the Spl. Act which reads as-
"Section 24 Void Marriage .......
(2) Nothing contained in this Section shall apply to any marriage deemed to be solemnised under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in Clauses (a) to (e) of Section 15.............."
Section 15 reproduced hereunder :
"Section 15. Registration of marriage celebrated in other form : Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (III of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely-
(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
(b) neither party have at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship;
Provided that in case of a marriage celebrated before the commencement of this Act,' this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and
(f) the parties have been residing within the district of the marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage".
16. Section 16 of the Spl. Act provides procedure for registration of marriage. The marriage officer must be satisfied that all the conditions mentioned in Section 15 are fulfilled before, entering and issuing a certificate in the form as specified in the Fifth Schedule.
17. Now adverting to the respondent's case as pleaded by her the marriage was solemnized on 6-10-85 according to Hindu rites at Kalighat Temple, Calcutta. It is here that Hindu Marriage Act comes into play. S. 5 of the Marriage Act lays down conditions for a valid Hindu marriage. It speaks of solemnization of marriage between any two Hindus on fulfilment of conditions enumerated in Clause (i) to (v) of the Marriage Act. It is an admitted position that the plaintiff-appellant is a Hindu by birth while the defendant-respondent is a Christian. Appellant's parents are Hindus while the respondent's parents were Christian. It is not respondent's case that before solemnization of her marriage on 6-10-85 at Kalighat Temple her 'SHUDHI' ¼'kq/nh½ was performed or that she was converted to Hinduism. Learned counsel for the appellant rightly argued that there can be no such marriage according to Hindu customary rites between a Hindu and a Christian.
18. Shri Desai, learned counsel appearing for the respondent, placing reliance on a judgment of Kerala High Court in Devbalan v. Vijaya Kumari as reported in 1991 (1) DMC 323 : (AIR 1991 Ker 175), contended that a marriage of a Hindu Male with a Christian Female was valid. This case as relied upon by the respondent's counsel has no application as it was a case involving dispute of property -- a suit for declaration of title and consequential injunction, (as appended in the Schedule to the Plaint), was filed by the plaintiff restraining other defendants from recovering possession of property. The question of validity of marriage was not directly involved in this case. It was an ancillary issue.
19. Going through the judgment, it would be seen as has been pointed out by the learned Judge in para 12 of the judgment, that neither parties had a case that there was no valid marriage between the 4th defendant and the mother of the plaintiff. It would thus be clear that the question of validity of marraige was not in issue in Devbalan's case (supra).
20. Another case again from Kerala High Court, relied upon by the learned counsel is AA Balasundaram v. Vijaya Kumar, (1991) 1 DMC 149. It was a case of maintenance Under Section 125, Cr. P.C. and the question before the Court was whether marriage between a Christian and Hindu as per Hindu rites was invalid for the purposes of claiming maintenance Under Section 125, Cr. P.C.
21. Explanation appended to Section 2 of the Marriage Act explains as to who are Hindus and Clause (c) to the explanation speaks of any person who is a convert or reconvert to the Hindu religion. It is not respondent's case that she is a convert to Hindu religion. Similarly Sub-section (I) to Section 2 which deals with application of the Hindu Marriage Act, clearly provides that this Act applies to any other person domiciled in the territories to which this Act extends, who is not a Muslim, Christian, Parsi or Jew by religion. In the instant case it is an admitted position that the respondent has admitted that at the time of her marriage on 6-10-85 she was a Christian and, therefore no marriage can be solemnized according to Hindu rites unless the parties were Hindus. The judgment relied upon by the learned counsel for the respondent with respect to the learned Judges, do not help the respondent.
22. So far as fulfilment of conditions, the trial Court has completely overlooked the pleaded case of the respondent. It has not considered the validity of marriage as pleaded by her in accordance with Section 5 of the Hindu Marriage Act. The trial Court has merely gone by the registration certificate; but such registration is valid only when it is found that there is a valid marriage. Where the factum itself is disputed, essential ceremony constituting the marriage in the instant case in accordance with Hindu rites must be pleaded and proved and the performance of such rites must be brought on records.
23. As already noted above Section 24 of the Marriage Act, which provides that the registration is of no effect if it is in contravention of any of the conditions specified in Clause (a) to (e)of Section 15 of the Act and Clause (a) of Section 15 provides for a ceremony of marriage which has been performed between the parties and this performance of marriage according to the respondent was in accordance with Hindu Customary Rites. 'SAPTAPADI' is one of the essential ceremonies of Hindu Marriage. Section 7 of the Hindu Marriage Act deals with this aspect of the matter. Respondent admits that in her evidence she could not name the priest, who performed the marriage nor did she know anything about the rituals. She does not speak of jointly taking of seven steps before the sacred fire. As provided by Sub-section (2) of Section 7 of the Act, the marriage becomes complete and binding when the 7th step is complete. There is total lack of evidence on this point.
24. In this state of evidence, apart from the inherent invalidity of marriage as discussed above, even the essential ceremonies and rituals of a Customary Hindu Marriage as pleaded by the respondent have not at all been proved. The trial Court has completely missed the point while dealing with solemnization of marriage under Section 4 of the Spl. Act. The pleaded case of the respondent that it was a Hindu Marriage in accordance with Hindu Customs and Rites has been given a complete convenient go-by.
25. Now coming to the question of effectiveness of marriage certificate Ex.P. 1, issued by the Marriage Officer of Calcutta and 24 Parganas District under the Spl. Act, it was contended on behalf of the appellant that this certificate is not at all effective. It is an admitted position that the appellant had gone for training at the factory of Hindustan Motors and was residing at Uttarpada in Hugli District. Keeping aside the question of whether the short stay of appellant for the specific and avowed purpose of training at Hindustan Motors, Uttarpada, Hugli, would fall within the meaning of the term 'residing', taking the pleaded case of the parties that they resided at Uttarpada in District Hugli on its face value yet the certificate issued by the marriage officer for District of Calcutta and 24 parganas, cannot be said to be effective in view of Clause (f) of Section 15 of the Spl. Act, which provides that the parties should have been residing within the district of the Marriage Officer for a period of not less than 30 days; immediately preceding the date on which the application is made to him for registration of marriage. Indisputably the parties did not reside within the District of Calcutta or 24 Pargnas. District has been defined Under Section 2(d) of the Spl. Act which reads as follows:
"Section 2(d) 'district' in relation to a Marriage Officer, means the area for which he is appointed as such under Sub-section (1) or Sub-section (2) of Section 3".
26, It cannot be gainsaid that Hugli is one of the 17 Districts of State of West Bengal having its District Head Quarter at Chinsura. The marriage Officer issuing the certificate, as is evident from Ext.P. I is appointed for District of Calcutta and 24 Parganas. There is no reference to or mention of Hugli District. It is an admitted position that Uttarpada is in Hugli District. Dealing with this question, the trial Court has found the Issue No. 4(a) is not proved. On the basis of admitted fact that parties lived in Uttarpada District Hugli. The reasoning of the trial Court that plaintiff has failed to adduce any evidence as regards appointment of Special Marriage Officer in the District of Hugli, cannot be accepted. Applying Clause(f) of Section 15 of the Spl. Act, to the admitted facts of the case, the Marriage certificate Ex.P. 1 which relates only to the districts of Calcuta and 24 Parganas, cannot be held to be effective for the District of Hugli. Although Section 2(d) of the Spl. Act read with Section 3(1), provides for the appointment of Marriage Officer for whole or any part of the State, the respondent has not placed on record or brought to my notice any such notification appointing the marriage officer for the district of Calcutta or 24 Parganas, as Marriage Officer for the District of Hugli as well.
27. In this view of the matter the registration certificate, Ex.P. 1 which is heavily relied upon by the respondent for proof of marriage, cannot be held-to be effective. For the foregoing reasons this appeal deserves to be allowed; it is accordingly allowed. The judgment and decree as passed by the trial Court are liable to be set aside; they are accordingly set aside. Plaintiffs suit is decreed. However, in the circumstances of the case, there shall be no order as to costs.