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1989 DIGILAW 515 (CAL)

SK. SALAM v. SANT SINGH

1989-12-01

A.C.SENGUPTA, HARIDAS DAS

body1989
HARIDAS DAS, J. ( 1 ) THIS civil revisional application by the respondent/petitioner Sk. Salam is directed against an order dt. Mar. 27, 1989 passed by the learned Additional District Judge, Tenth Court, Alipore rejecting the petitioner's application under S. 34 (2) of the Special Marriage Act, 1954 (hereinafter referred to as the said Act) in Matrimonial Suit No. 28 of 1988 (original suit, being Matrimonial Suit No. 757 of 1987 ). ( 2 ) IT appears that the opposite party No. 1 Sant Singh, father of Sm. Jaginder Kaur instituted the suit under S. 24 (i) and 25 (iii) of the said Act for a decree that the purported marriage between the petitioner and Jaginder Kaur (the opposite party No. 2 herein) alleged to have been contracted under the provisions of the said Act was null and void and for annulment of such marriage by a decree of nullity mainly on the ground that the opposite party No. 2 was a minor being under 18 years of age on the date of the alleged marriage and that her consent to such alleged marriage was obtained by the petitioner by coercion and fraud. The case of the opposite party No. 1 was that his daughter, the opposite party No. 2 was a student of Class IX in Lajpat Hindu High School at Kidderpore. She picked up acquaintance with the petitioner who created sinister influence upon the opposite party No. 2 and dominated her will. The opposite party No. 1 coming to know of this removed her to Jammu. It was also alleged that on July 21, 1987 when the opposite party No. 2 accompanied by a relation was going to Jammu from Calcutta by Train, the petitioner kidnapped her with the help of police. The girl was rescued from the wrongful custody of the petitioner and the police handed her over to the opposite party No. 1. The opposite party No. 1 came to know from his daughter that the petitioner by intimidation, coercion and fraud obtained her signature and forced her to solemnize a purported marriage registered by the Marriage Registrar, 24-Parganas under the Special Marriage Act on July 24, 1987 giving operation to the marriage from June 18, 1987. ( 3 ) THE respondent/petitioner filed a written statement in the suit contending, inter alia, that the opposite party No. 2 was major at the time of marriage. ( 3 ) THE respondent/petitioner filed a written statement in the suit contending, inter alia, that the opposite party No. 2 was major at the time of marriage. She fell in love with the petitioner and at her insistence the marriage was solemnized. The allegations of fraud and coercion etc. were denied. It was also stated by the respondent/petitioner that a criminal case under S. 366 of the Penal Code was started. In course of investigation of that case by the police the opposite party No. 1 did not produce the girl for medical examination to determine her age and ultimately the amused persons including the petitioner were discharged in the criminal case on police report. ( 4 ) THE matrimonial suit was ultimately fixed for peremptory hearing and on Mar. 3, 1989 the opposite party No. 1 Sant Singh was examined in part. On Mar. 27, 1989 the respondent/petitioner made an application under S. 34 (2) of the said Act contending, inter alia, that the provision contained in sub-sec. (2) of S. 34 was mandatory and that the Court, before proceeding with the hearing of the suit should make an attempt for reconciliation between the parties as provided therein. The learned trial Judge by his order dt. Mar. 27, 1989 rejected the application under S. 34 (2) of the said Act holding that since the suit was for a declaration that the marriage was null and void, it was not necessary to make any endeavour to bring about reconciliation between the parties because at the time of such attempt the question whether the marriage was a valid one and whether the opposite party No. 2 was a minor or major could not be decided without hearing of the suit on merits. Aggrieved thereby the respondent; petitioner has come up in revision. ( 5 ) MR. Dulal Chandra Roy, the learned Advocate appearing for the petitioner has contended, that S. 34 of the said Act contains provisions relating to the power of the Court in passing decree and in granting reliefs in any proceedings under Chapter V or Chapter VI of the said Act. It is submitted by Mr. Roy that the provision of sub-sec. Dulal Chandra Roy, the learned Advocate appearing for the petitioner has contended, that S. 34 of the said Act contains provisions relating to the power of the Court in passing decree and in granting reliefs in any proceedings under Chapter V or Chapter VI of the said Act. It is submitted by Mr. Roy that the provision of sub-sec. (2) of S. 34 of the said Act contains a mandatory provision that before granting any relief under the Act, it shall be the duty of the Court to make every endeavour to bring about a reconciliation between the parties. It is submitted further that the learned trial Judge acted illegally and without jurisdiction in taking up the suit for hearing on merits without making any endeavour to bring about a reconciliation between the parties. ( 6 ) MR. Ashok Kumar Sengupta, the learned Advocate appearing for the opposite parties has contended, that as the suit was for a declaration that the alleged marriage between the petitioner and the opposite party No. 2 was void, the question of making any endeavour to bring about a reconciliation between the parties does not arise. He has next submitted that the application made by the petitioner under S. 34 (2) of the said Act was premature since the court May make an attempt for reconciliation only before proceeding to grant any relief under the said Act after the hearing of the suit on merits. Sub-sections (1) and (2) of S. 34 of the said Act read as follows:-34. Sub-sections (1) and (2) of S. 34 of the said Act read as follows:-34. Duty of Court in passing decrees:- (1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the Court is satisfied that,- (a) any of the grounds for granting relief exists; and (b) (where the ground of the petition is adultery the petitioner had not in any manner been accessory to or connived at or condoned the adultery) where the petition is founded on the ground specified in clause (a) of sub-section (1) of Section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein, or, where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and (c) when the divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and (d) the petition is not presented or prosecuted in collusion with the respondent; and (e) there has not been any unnecessary or improper delay in instituting the proceeding; and (f) there is no other legal ground why the relief should not be granted; then, in such a case but not otherwise, the Court shall decree such relief accordingly. (2) Before proceeding to grant any relief under this Act it shall be the duty of the Court in the first instance in every case where it is possible so to do consistently, with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Provided that nothing contained in the sub-section shall apply to any proceeding wherein relief is sought on any of the ground specified in clause (c), clause (e) clause (f), clause (g) and clause (h) of sub-section (1) of Section 27. ( 7 ) THE provisions of sub-section (2) of S. 34 as quoted above, no doubt cast a duty upon the Court to make an endeavour to bring about a reconciliation between the parties in a Matrimonial Suit to save the marriage, but then, such endeavour has to be made by the Court consistently with the nature and circumstances of the case. Again, failure to make such endeavour on the part of the trial Judge does not affect his jurisdiction nor does it render the decree a nullity. In the instant case, the opposite party No. 1 brought the suit alleging that the marriage between the petitioner and the apposite party No. 2 was void ab initio since the opposite party No. 2 was a minor on the date of the alleged marriage. The learned trial Judge rightly observed that the question whether the opposite party No. 2 was a minor on the date of the marriage and the marriage was void on that ground could not be decided before the trial of the suit. Evidently, if the marriage was void on the ground as alleged by the opposite party No. 1, any attempt to bring about a reconciliation will be meaningless since a marriage which is void ab initio cannot be rendered valid by way of reconciliation. Having regard to the provisions of law and the nature and circumstances of the case, we are of the view that the learned trial Judge did not commit any error in law in taking the view that there was no necessity to make any endeavour for reconciliation between the parties and in rejecting the application under S. 34 (2) made by the petitioner. We are, therefore, unable to find any substance in this application which must accordingly fail. ( 8 ) MR. Roy, the learned Advocate for the petitioner has pointed out that there, was no medical examination of the girl for determination of her age. That matter cannot come up for consideration in this revisional, application, but the petitioner will be free to agitate the point at the time of the trial of the suit. ( 9 ) IN the result, the revisional application fails and is dismissed. ( 10 ) AMARABHA SENGUPTA, J. :- I agree. Petition dismissed.