Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 1913 (MAD)

D. Rajmohan v. D. Prema & Others

2007-06-26

S.ASHOK KUMAR

body2007
Judgment :- Aggrieved over the fair and decreetal order dated 212. 2005 made in I.A.No.674 of 2005 in O.S.No.469 of 2004 on the file of the learned Additional District Court (Fast Track Court No.II), Coimbatore, the 7th defendant in the suit has filed the civil revision petition. .2. The case in brief is as follows: .Respondents 1 to 6 are brothers and sisters and the 7th respondent is the adopted son of deceased V.Janakiammal and K.Venkatesalu and son of the first respondent/plaintiff. The first respondent has filed the suit O.S.No.469 of 2004 praying to pass a decree (a) declaring the marriage between the defendants 5 and 7 as null and void and not valid in law; (b) partitioning the suit properties described in the schedule of properties into seven equal shares and allot one such equal share to the plaintiff; c) appointing a Commissioner to divide the properties and for awarding the costs. The seventh defendant has married fifth defendant. According to the plaintiff, the relationship between the fifth defendant and seventh defendant is within the prohibitory relationship and hence their marriage is null and void. Therefore, in the plaint, though it is a partition suit, a prayer is also made for a declaration, declaring the marriage between the defendants 5 and 7 as null and void and not valid in law. 3. The 7th defendant filed I.A.No.674 of 2005 in the said suit praying to take up the issue in respect of prayer No.1 (paragraph 16 (a)) in the plaint, as preliminary issue before recording evidence in respect of other points involved in the suit. The contention of the learned counsel for the petitioner/7th defendant is that Family Courts are established which can pass declaration regarding the marriage whether it is valid or null and void and jurisdiction of the regular Court is ousted. .4. After contest, the learned Additional District Court (Fast Track Court No.II), Coimbatore dismissed the application on the ground that this issue can be decided along with the other issues during the trial of the suit. Aggrieved over the said order, the 7th defendant has filed the present civil revision petition. 5. Mr. M.S.Krishnan, learned counsel for the petitioner/7th defendant would contend that in a suit for partition, the validity of a marriage between one of the sharers with a third party, has no relevance. Aggrieved over the said order, the 7th defendant has filed the present civil revision petition. 5. Mr. M.S.Krishnan, learned counsel for the petitioner/7th defendant would contend that in a suit for partition, the validity of a marriage between one of the sharers with a third party, has no relevance. Whether it is valid or null and void, is not going to affect the rights of the parties in a suit for partition. Learned counsel for the petitioner would point out Sections 7 and 8(a) of the Family Courts Act, which read as follows: "7. Jurisdiction: (1) Subject to other provisions of this Act, a Family Court shall, (a) have and exercise all the jurisdiction exercisable by, any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; 8. Exclusion of Jurisdiction and pending proceedings.--Where a Family Court has been established for any area, - a) no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section". Under Section 7(a) of the Family Courts Act, the Family Court constituted in the area shall have jurisdiction to try a suit or proceedings for a declaration as to the validity of the marriage or as to the matrimonial status of any person. Section 8 (a) is very clear that no District Court or any Subordinate Civil Court referred to in sub section (1) of Section 7, a Family Court shall have and exercise all the jurisdiction in respect of any suit or proceedings of the nature referred to in the Explanation. 6. Thus, it is clear that regarding marital status of the person or validity of the marriage of a person, cannot be gone into in a suit filed before the District Court or Subordinate Court where the Family Court has been already established. 7. Mr. Venkatachalapathy learned Senior Counsel appearing for the first respondent and Mr.R.Karthikeyan learned counsel appearing for the 7th respondent would contend that the marriage of the 5th defendant shall have a barring since a third party may claim a right over the property in consequence of the said marriage. 7. Mr. Venkatachalapathy learned Senior Counsel appearing for the first respondent and Mr.R.Karthikeyan learned counsel appearing for the 7th respondent would contend that the marriage of the 5th defendant shall have a barring since a third party may claim a right over the property in consequence of the said marriage. 8. The said contention of the learned counsel for the respondents may be accepted in the event when the fifth defendant dies, her husband or children claim a right over the property on the foot steps of the deceased. But the fifth defendant is alive. She has accrued right of share by birth and has not obtained any right by her marriage and her marriage with the seventh defendant may or may not be legal, in view of the alleged prohibitory relationship, which is a matter to be decided only by the Family Court. The validity of a marriage will not have any bearing in a partition suit between the brothers and sisters. Therefore, the first prayer in the plaint itself is unnecessary and such a relief cannot be granted by Civil Court where there is already a Family Court. If the parties are aggrieved over the marriage of the fifth defendant with the seventh defendant, they can question the same only in a Family Court, that too, if they are having a right to sue. A marriage between the spouse can be questioned only by an affected person by such a marriage. For example, if any of the parties got second marriage, the other spouse can file a suit for declaration that such a marriage is null and void. I am at a loss to understand as to how the brothers and sisters of a partition suit can question the marriage of third party with a person of her choice where it is within the permitted relationship or prohibitory relationship. But however, since the marriage of 5th defendant with the seventh defendant, cannot be relevant to decide the issue in a suit for partition and hence the prayer for declaration of the marriage or marital status shall be deleted and the Additional District Judge (Fast Track Court No.II), Coimbatore shall proceed with the trial of the partition suit. 9. With the above observation, the civil revision petition is ordered. Consequently, connected C.M.P. is closed. No costs.