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2019 DIGILAW 1037 (KER)

Benjeena. P. J. v. C. P. Pappachan

2019-12-06

C.S.DIAS, K.HARILAL

body2019
JUDGMENT : Dias, J. The appellant, who is the petitioner in O.P. 128/2018 on the files of the Family Court, Ernakulam, is aggrieved by the dismissal of the original petition as not maintainable. 2. The appellant had filed the original petition, inter alia, seeking a decree to declare that she is the wife of the 1st respondent. 3. It was her case before the Family Court that she got acquainted with the 1st respondent. The 1st respondent used to visit her at her house at Varapuzha, and he finally adorned a thali chain on her and accepted her as his wife. They declared before the Altar of Jesus Christ that they have entered into the sacred covenant of marriage, and they would staunchly abide by it. 4. It was further averred that the marriage was witnessed by the driver and maidservant of the 1st respondent. Subsequently, on 8.11.2015, the 1st respondent again tied a thali chain on the appellant at Chittoor Dyana Kendram, a Christian Charismatic Retreat Centre. There also, the 1st respondent declared that he accepted the appellant as his wife and the appellant confirmed her consent in accepting the 1st respondent as her husband. They then started living together as man and wife. 5. The appellant had further pleaded that, subsequently, the 1st respondent adopted a recalcitrant attitude towards her and their relationship got strained and then he denied the marital relationship. 6. In the above compelling circumstances, the appellant filed the original petition seeking to declare that she is the wife of the 1st respondent. 7. The 1st respondent entered appearance in the case and filed I.A No.991/2019 under Order XIV Rule 2 (2) of the Code of Civil Procedure (in short “Code”), to hear the question of maintainability as a preliminary issue. The 1st respondent did not file any written objection to the original petition. 8. The 1st respondent contended that he never tied a thali chain on the appellant and that the allegation he entered into a marriage with the appellant was an absolute lie and that the allegations levelled against him were only to extort money. 9. The 1st respondent further contended that, as per the mandate under Section 5 of the Indian Christian Marriage Act, 1872 (hereinafter for brevity referred to as “the Act”), the marriage had to be solemnized by a person who has received episcopal ordination. 10. 9. The 1st respondent further contended that, as per the mandate under Section 5 of the Indian Christian Marriage Act, 1872 (hereinafter for brevity referred to as “the Act”), the marriage had to be solemnized by a person who has received episcopal ordination. 10. According to the 1st respondent, there is no provision in the Act to solemnize a marriage in any other form. Therefore, even assuming the assertions in the original petition to have any semblance of truth, there cannot be a valid marriage in the eyes of law. 11. The appellant opposed the application by filing a written objection and, inter alia, contended, that the application was not maintainable and that the dispute as to the marital status between the parties is a mixed question of fact and law, which can only be decided after taking evidence and hence he prayed the application to be dismissed. 12. The learned Judge of the Family Court, after hearing the counsel for the parties, by the impugned order held that there is no marriage between the parties because the marriage was not solemnised by a Priest and no notice was published. Accordingly, the learned Judge allowed I.A No.991/2019 and dismissed the Original Petition. 13. Heard learned Senior Adv. T. Sethumadhavan, assisted by Adv. T. Madhu, for the appellant and Adv. M.Balagovindan, for the 1st respondent. 14. Adv. T. Sethumadhavan argued that the impugned order is palpably erroneous because the original petition could not have been dismissed at the threshold. He contended that the averments in the original petition contain mixed questions of fact and law. He placed reliance on Ramesh B. Desai and others v. Bipin Vadilal Mehta and others [ AIR 2006 SC 3672 ] to drive home his argument. 15. Per contra, Adv. M. Balagovindan argued that by virtue of O.VII, Rule 11(d) and Order XIV, Rule 2(2)(b) of the Code, the original petition was rightly dismissed in limine by the Family Court, as it is barred by law. 16. According to counsel for the respondent, the Family Court was perfectly justified in dismissing the original petition, principally for the reason that there is no valid marriage between the parties. 17. 16. According to counsel for the respondent, the Family Court was perfectly justified in dismissing the original petition, principally for the reason that there is no valid marriage between the parties. 17. He placed reliance on the decision of this Court in Jacky v. Tiny @ Antony and Others [ 2012 (1) KHC 82 ], and contended that the High Court could terminate civil proceedings initiated with mala fides or with ulterior motives, and where the continuance of proceeding will amount to an abuse of process of court. 18. From the pleadings and evidence on record and the submissions by the learned counsel for the parties, the following points emerge for consideration. 1. Whether the Indian Christian Marriage Act, 1872, extends to the territories of Travancore-Cochin area? 2. Whether the original petition can be quashed by this Court under Article 227 of the Constitution of India or Section 151 of the Code of Civil Procedure? 3. Whether the original petition could have been rejected under Order VII, Rule 11 (d) or Order XIV, Rule 2(2)(b)of the Code, on the issue of law? 4. Whether a mixed question of fact and law could have been decided by the Family Court on a preliminary issue without the respondent filing a written statement? 5. Whether the Family Court has the jurisdiction to declare the marital status of any person, other than parties to the marriage? 19. With reference to Point No.1, regarding the application of the Act, we render the following finding. 20. Section 1 of the Act reads as follows: “1. Short title: This Act may be called the Indian Christian Marriage Act, 1872. Extent:-[It extends to the whole of India (except [the territories which, immediately before the 1st November, 1956 were comprised in the States] of Travancore -Cochin, Manipur and Jammu and Kashmir]) 21. Undisputedly, the appellant has alleged that the marriage was solemnised at Varapuzha, and she lived with the 1st respondent at Varapuzha, which falls within the erstwhile Cochin area. It is trite law that, for the purpose of deciding a preliminary issue on the question of maintainability, the cause of action to institute the original petition has to be looked into. As already pointed out, the 1st respondent has not filed a written objection refuting the assertions in the original petition. 22. It is trite law that, for the purpose of deciding a preliminary issue on the question of maintainability, the cause of action to institute the original petition has to be looked into. As already pointed out, the 1st respondent has not filed a written objection refuting the assertions in the original petition. 22. Section 1 of the Act categorically states that the Act extends to the whole of India except the territories which immediately before 1st November, 1956 were comprised in the erstwhile States of Travancore-Cochin, Manipur and Jammu and Kashmir. 23. We have not found any amendment to the Act in the post-constitutional era, extending the application of the Act. 24. Section 3 of the Act -The interpretation clause, defines “India” to mean the territories to which the Act extends. 25. Therefore, we hold that the Act has no application in the erstwhile Cochin area, where the cause of action for the original petition arose. The parties are governed by their personal law, for the purpose of solemnisation of marriage. Thus, the contention of the 1st respondent that there was no marriage as per the provisions of the Act is unsustainable in law and the finding of the Family Court in this regard is erroneous and is set aside. 26. Counsel for the respondent then argued that this Court in Merin Dominic v. Union of India [ 2017(1) KLT 950 ) has held that by virtue of Articles 372 and 395 of the Constitution of India, the Cochin Christian Civil Marriage Act, 1095 is still in force. We disagree with this contention because the appellant has alleged that her marriage with the 1st respondent was solemnized under the Indian Christian Marriage Act, 1872, and not under the Cochin Christian Civil Marriage Act, 1095. 27. We have no doubt in our mind that the Indian Christian Marriage Act, 1872, stands saved by Articles 372 and 395 of the Constitution of India. The crux of the issue is that it is not applicable to the parties in this case, as the cause of action for instituting the original petition has arisen in an area where the Act has no application. Hence, the argument is merit less. 28. With regard to point No.2, whether the original petition could be quashed by this Court under Article 227 of the Constitution of India or Section 151 of the Code, we answer it as under. Hence, the argument is merit less. 28. With regard to point No.2, whether the original petition could be quashed by this Court under Article 227 of the Constitution of India or Section 151 of the Code, we answer it as under. 29. This Court in Tiny @ Antony & others (supra) held that plaints can be quashed by the High Court invoking Article 227 of the Constitution of India or Section 151 of the Code We are conscious that the decision was overruled by the Hon'ble Supreme Court in Jacky v. Tiny @ Antony & others [ 2014 (6) SCC 508 ]. Therefore, such a course cannot be adopted by this Court. 30. On point Nos.3 and 4, whether the original petition can be rejected/dismissed on the question of maintainability under Order VII, Rule 11 (d)and Order XIV, Rule 2(2)(b) of the Code, as it is contended that the original petition is barred by law as there is no valid marriage, we render the following finding. 31. As already pointed out, the 1st respondent has not filed a written objection to the original petition. The thrust of his contention in the application was that there is no valid marriage between him and the appellant as per the provisions of the Act, since a Priest had not solemnised the marriage, and no notice was published. 32. We have already held in point No.1 that the Act has no application in the erstwhile Cochin area. Therefore, the provisions of Order VII, Rule 11(d) and Order XIV Rule 2(2)(b) do not apply to the facts of the case, as there is no bar to the suit created by any law for the time being in force. Likewise, as the 1st respondent has not filed a written objection, there is no foundation for his defence to assert that there is no valid marriage between him and the appellant. The issue is a pure question of fact. Necessarily, the 1st respondent has to file a written objection and refute the allegations in the original petition. Only then can an issue of fact be decided. We hold so because of the law declared by the Hon'ble Supreme Court in Vimal Chand Ghevarchand Jain and Others v. Ramiakant Eknath Jajoo [ (2009) 5 SCC 713 ] that determination of an issue without pleading is impermissible. 33. Only then can an issue of fact be decided. We hold so because of the law declared by the Hon'ble Supreme Court in Vimal Chand Ghevarchand Jain and Others v. Ramiakant Eknath Jajoo [ (2009) 5 SCC 713 ] that determination of an issue without pleading is impermissible. 33. With reference to point No.5, as to the jurisdiction of the Family Court to entertain the original petition to declare the marital status between the appellant and the 1st respondent, we render the following finding. 34. The counsel for the respondent argued that the original petition ought to have been filed before the Civil Court and not the Family Court. We are unable to agree on this contention because, Explanation (c) to sub-section (1) of Section 7 of the Family Courts Act, 1984, permits a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person. The legislature has consciously used the words “any person” and omitted the words “parties to a marriage” as seen in the other explanations. Hence, only the Family Court has the jurisdiction to entertain an original petition of the present nature. 35. In view of our findings on points 1 to 5, we are of the view that the impugned order passed by the Family Court in dismissing O.P. 128/2018 on the preliminary issue of maintainability is erroneous and unsustainable in law. Thus, we set aside the impugned order and remit O.P. No.128 of 2018 to the Family Court for fresh consideration in accordance with law. 36. In the result the Mat. Appeal is allowed as follows: (i) The order dated 10.6.2019 in I.A No.991/2019 in O.P.128/2018 is set aside. (ii) The parties are directed to appear before the Family Court on 20.12.2019 either in person or through counsel. (iii) The 1st respondent is at liberty to file his written objection to the original petition. (iv) The learned Judge of the Family Court is directed to dispose of the original petition within a period of six months after conciliation and mediation proceedings are completed. (v) In the facts and circumstances of the case, the parties shall bear their respective costs.