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2013 DIGILAW 7 (CHH)

SANTOSH KUMAR PANDEY v. ANANYA @ ANVAYA PANDEY

2013-01-03

A.M.SAPRE, G.MINHAJUDDIN

body2013
ORDER Abhay Manohar Sapre, J. 1. Heard on I.A. No. 01. 2. The appellant has filed the above application for condonation of delay of 03 days in filing the instant appeal. 3. We have perused the contents of the application made by the appellant seeking condonation of delay in filing the appeal. Having gone through the contents of the application, which is duly supported by an affidavit of the appellant, we are satisfied that good and sufficient ground is pleaded in the application which constitutes a sufficient cause for condonation of delay in filing the appeal. 4. In our opinion, condoning the delay advances the cause of justice. On the other hand, not condoning the delay would defeat the very purpose of claiming substantial justice. 5. Accordingly and in the light of the forgoing discussion, application for condonation of delay in filing the appeal made by the appellant is allowed. 6. With the consent of the parties, the matter is heard finally at the admission stage itself. 7. This is an appeal filed by the appellant/plaintiff under Section 19 of the Family Courts Act, 1984 (in short "the Act, 1984") against the order dated 11.5.2012 passed by the Principal Judge, Family Court, Raipur in Civil Suit No. 551A/10. 8. By the impugned order, learned Family Judge dismissed the application made by the appellant under Section 9 of the Hindu Marriage Act, 1955 (in short "the Act, 1955"). 9. It is the case of the appellant/plaintiff that he married to respondent/defendant on 11.12.2008 at Arya Samaj Mandir, Raipur but on 7.1.2009 the respondent withdrew herself from his society without there being any sufficient and reasonable cause and therefore, he was compelled to file a suit for restitution of conjugal rights under Section 9 of the Act, 1955 read with Section 7(1) Explanation (a) of the Act, 1984. The respondent filed a written statement and denied the very existence of marriage with the appellant. In other words, the stand taken by the respondent was that she never married with the appellant and therefore there does not arise any occasion to perform any restitution of conjugal rights between them for want of relationship of husband and wife within the meaning of Section 9 ibid between them. 10. The learned Family Judge dismissed the said application. It is this order, which is impugned by the plaintiff in this appeal. 11. 10. The learned Family Judge dismissed the said application. It is this order, which is impugned by the plaintiff in this appeal. 11. Section 7(1) Explanation (b) of the Act, 1984 and Section 9 of the Act, 1955, which are relevant for the disposal of this appeal, reads as under: "7. Jurisdiction - (1) Subject to the other provisions of this Act, a Family Court shall – (a) have and exercise all the jurisdictions exercisable by any district court of 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; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation - The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely – (a) xxxx xxxx xxxx (b) a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;" "9. Restitution of conjugal rights.- (1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. (2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce." A bare perusal of Section 7 of the Act, 1984 would go to show that it deals with the jurisdiction of Family Court. So far as Explanation (b) is concerned, the case falling in clause (b) has to be tried by the Family Court. In other words, as and when the issue relating to status of any person whether he is the husband of any lady or whether she is the wife of any person or whether the marriage between any male or female is lawful or not, has to be tried by Family Court. In other words, as and when the issue relating to status of any person whether he is the husband of any lady or whether she is the wife of any person or whether the marriage between any male or female is lawful or not, has to be tried by Family Court. A bare perusal of Section 9 of the Act, 1955 would go to show that in order to make an application under Section 9 ibid for seeking a decree for restitution of conjugal rights, the plaintiff must be either husband or wife, as the case may be, as an admitted fact. In other words, the sine qua non for maintaining an application under Section 9 ibid is the existence of relationship of husband and wife as an admitted fact between the parties. It is only when the parties do not dispute their very existence of marriage between them and when the relationship of husband and wife inter se is not disputed by both, he/she becomes entitled to file an application under Section 9 ibid against each other seeking decree for restitution of conjugal rights. In such proceedings, the Court can not decide the issue relating to the very existence of the marriage inter se parties, but the Court has to decide that one party has withdrawn from the society of the other without any reasonable cause. In our considered opinion, therefore, in a case where the very existence of marriage between the parties is in issue, the same falls outside the purview of Section 9 ibid for its decision. 12. In such case, therefore, in our opinion, the remedy of the appellant would lie in filing a suit for declaration in the first instance that he is a legally married husband of the respondent on the basis of the marriage, which he claims to have performed on a particular date as required by the Act. This he could do by taking recourse to the provisions of Section 7(1) Explanation (b) of the Act, 1984, quoted above, before the Family Judge. It is only after declaration is granted in plaintiff's favour; the parties would be then entitled to make an application under Section 9 of the Act, 1955 for seeking restitution of conjugal rights against each other as husband and wife. It is only after declaration is granted in plaintiff's favour; the parties would be then entitled to make an application under Section 9 of the Act, 1955 for seeking restitution of conjugal rights against each other as husband and wife. However, in this case, this stage did not arise because the marital status between the parties itself was in dispute. 13. In the light of the foregoing discussions, though we are dismissing the appeal, but consider it just and proper to grant liberty to the appellant to file a suit for declaration as provided under Section 7(1) Explanation (b) of the Act, 1984 before the Family Court in the first instance and seek a declaration as to the validity and legality of his marriage or/and his matrimonial status with the respondent, and depending upon the declaration so granted, if claimed, to initiate appropriate proceedings, as may be available to him in law, against the respondent in his capacity as respondent's husband. 14. We, however, make it clear that while deciding the said suit, the finding recorded by the Family Judge in the proceedings in question, out of which this appeal arises, would not operate as res judicata inter se parties, and nor shall they be relied upon while deciding the suit, if filed by the appellant against the respondent. 15. With the aforesaid observations, the appeal stands dismissed in limine. 16. No costs. Appeal dismissed with direction.