Tapash Kumar Moitra vs Pratima Roy Choudhury

P.K. Majumdar, J.—The plaintiff is the petitioner in this revisional application which is directed against the judgment and order dated 2nd September, 1981 passed by the Additional Subordinate Judge, Hooghly in Misc. Appal No. 49 of 1981 affirming the order being Order No. 39 dated 11th April, 1981 passed by Munsif, 1st Court, Hooghly in Title Suit No. 35 of 1979. The petitioner instituted a suit being Title Suit No. 35 of 1979 in the First Court of Munsif at Hooghly for, inter alia, the following reliefs : a declaration that the purported registration of the alleged marriage under the Hindu Marriage Act, 1955 and Hindu Marriage Registration Rules, 1958 at the Marriage Registration Office at Naihati on 2nd March, 1977 be declared null and void; the record of the relevant registration of the said purported marriage be cancelled and be deleted or expunged from the relevant Marriage Register of Naihati Marriage Registration Office; the declaration given by the plaintiff on 2nd March 1977 upon which the marriage was registered be also declared null and void and be treated as cancelled; the defendant be restrained by permanent and temporary injunction from executing the order for maintenance and cost in her favour in M. C. Case No. 271/1977 in the Court of Sub-divisional Judicial Magistrate (Sadar) Hooghly which is not binding upon the plaintiff, and such further or other orders.

The plaintiff has brought this suit for a declaration that the purported registration of the alleged marriage between the parties be declared null and Void. The plaintiff''s case is that he was forced to give a declaration of alleged marriage before the concerned Marriage Registrar and to sign the Marriage Register and other papers under coercion, threat and intimidation.

The defendant who is the opposite party in this application contests the suit denying the allegations in the plaint and has contended, inter alia, that the suit is not maintainable in law and the learned Munsif has no jurisdiction to try the suit.

The argument on behalf of the defendant before the learned Munsif is that u/s 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the said Act) any marriage solemnised after the commencement of the Act shall be voidable and may be annulled by a decree of nullity on the ground that the consent of the petitioner was obtained by force or fraud, and such relief can only be sought by means of a petition u/s 19 of the said Act to be presented to the District Court, this is, the District Judge or the Additional District Judge.

The learned Munsif, 1st Court, Hooghly accepted the contention of the defendant-opposite party, and by his Order No. 39 dated 11th April, 981 held that the said Court had no jurisdiction to try the suit and the suit was not maintainable in the said Court.

Being aggrieved by the said order of the learned Munsif, the plaintiff preferred an appeal from the said order before the learned District Judge, Hooghly and on transfer the said appeal was heard by the learned Additional Subordinate Judge, Hooghly.

In the said appeal the learned Additional Subordinate Judge agreeing with the learned Munsif held that the learned Munsif had no jurisdiction to try the suit and the proper forum was the Court of the learned District Judge.

Mr. Tarun Chatterjee, learned Advocate appearing for the petitioner has contended in support of the instant Rule that the plaintiff in the instant suit has not prayed for any relief either by way of annulment of marriage by a decree of nullity nor for a decree of dissolution of the alleged marriage. It is his contention that the plaintiff has simply sought for in this suit a declaration as to the status of the parties and certain other consequential reliefs. He submits that the learned Munsif has jurisdiction under the Specific Relief Act to consider whether the plaintiff has made out any case for obtaining such declaratory and consequential reliefs.

Mr. Chatterjee in support of his aforesaid contentions has cited a decision of this Court in the case of Krishna Pal vs. Asoke Kumar Pal, reported in 1982 (2) CLJ 366. In that case the suit was for a declaration that no marriage was solemnised according to Hindu Shastras or any other law and also for a declaration that the entries regarding the alleged marriage in Sub-registry Office were fraudulent and null and void.

In the case cited above, Chittatosh Mookerjee, J. delivering the judgment was pleased to observe, inter alia, that the expression "any marriage solemnised" in Section 12(1) of the Hindu Marriage Act means a marriage which has been solemnised in accordance with the customary rites and ceremonies of either, party thereto. His Lordship further observed that where the plaintiffs allegation is that no marriage was solemnised, sub-section (1) of Section 12 of the Act which provides for annulment of voidable marriages is not attracted. Referring to and interpreting the various provisions of the Hindu Marriage Act, Chittatosh Mookerjee, J. came to the conclusion that where the plaintiff has not chosen to pray for any relief for annulment of marriage by a decree of nullity or by way of decree for dissolution of the alleged marriage, the plaint filed by him cannot be considered to be a petition under the Hindu Marriage Act.

I respectfully agree with the above observations of Chittatosh Mookerjee, J. in the case referred to above.

In the instant case the plaintiff-petitioner in his plaint has neither prayed for restitution of conjugal rights nor for dissolution of marriage u/s 9 or Section 13 of the said Act. He has also not prayed for annulment of alleged marriage by a decree of nullity. The plaintiff in the instant suit has asked for a declaration that the purported registration of the alleged marriage be declared null and void and consequently cancellation of the said purported registration of marriage.

In my opinion this suit is simply for cancellation of purported registration of the alleged marriage under the Hindu Marriage Act, 1955 and the Hindu Marriage Registration Rule, 195a and consequential reliefs. If it is the averment that marriage has not been solemnised, then the registration under the Section 8 of the Act read with relevant provisions of the said Hindu Marriage Registration Rule by itself will not result in making the marriage complete and binding between the parties. Such registration may raise a presumption of marriage being solemnised.

I am, therefore, of opinion that the plaint in the instant suit cannot be considered to be a petition u/s 19 of the said Act, and learned Munsif is fully competent and has jurisdiction to entertain, try and determine the suit.

By reasons of the aforesaid, the impugned order dated 2nd September, 1981 in Misc. Appeal No. 49 of 1981 passed by the learned Additional Subordinate Judge, Hooghly and the Order No. 39 dated 11th April, 1981 passed by the learned Munsif, 1st Court at Hooghly in the Title Suit No. 35 of 1979 are set aside. The Rule is made absolute. There will be no order as to costs.

Let the records be sent down forthwith.

Rule made absolute.