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2022 DIGILAW 2832 (RAJ)

Bhagwat Singh @ Bhagwan Singh S/o Lal Singh v. Khushboo Kanwar @ Manju Kanwar W/o Bhagwat Singh @ Bhagwan Singh

2022-11-29

KULDEEP MATHUR, SANDEEP MEHTA

body2022
JUDGMENT : 1. The present misc. appeal has been preferred by appellant-husband under Section 19 of the Family Courts Act, 1984 for assailing the order dated 31.05.2022 passed by the learned Family Court, Balotra in Civil Original (Family Dispute) Case No. 67/2021 (CIS No. 68/2021) Khushboo Kanwar @ Manju Kanwar vs. Bhagwat Singh @ Bhagwan Singh. The learned Family Court by the aforesaid order dated 31.05.2022 dismissed application filed by appellant-husband under Order 7 Rule 11 CPC with a prayer to reject the application submitted by respondent-wife under Section 11 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘Act of 1955’) seeking declaration of the second marriage solemnized between the appellant and the respondent No. 2 i.e. Smt. Devyani Solanki void on the ground of lack of jurisdiction. 2. The respondent No. 1 filed an application under Section 11 of the Act of 1955 before Family Court, Balotra alleging inter-alia that she is the legally wedded wife of the appellant-Bhagwat Singh. However, during her lifetime, appellant-husband has entered into a second marriage with respondent No. 2. To substantiate the aforesaid allegation, a marriage registration certificate bearing No. 08122001000000100444/2021 dated 14.06.2021, issued by competent authority at Bhilwara was annexed with the application. It was thus prayed that the second marriage of appellant may therefore be declared null and void and the same may be annuled. 3. For ready reference, the prayer made by respondent No. 1 in the application filed under Section 11 of the Act of 1955 before Family Court, Balotra reads as under: ^^13- vr% ÁkFkhZ;k dh ÁkFkZuk gSa fd%& ¼v½ fd foÁkFkhZ la[;k 1 dk foÁkFkhZ la[;k 2 ds lkFk ÁkFkhZ;k ds thoudky esa gq;s f}rh; fookg fnukad 22-02-2021 o fookg iath;u jftLVªhdj.k la[;k 08122001000000100444@2021 jftLVªhdj.k dh fnukad 14-06-2021] tkjh dh rkjh[k 05-07-2021 dks voS/k o 'kwU; ?kksf"kr dj mDr fookg dks [kf.Mr ?kksf"kr fd;k tkdj jn~n o fujLr djkos] bl vk'k; dh fMØh ÁkFkhZ;k ds i{k esa o foÁkFkhZx.k ds fo:} tkjh djkosA ¼c½ fd vU; vuqrks"k tks cgd ÁkFkhZ;k dks fnjkosA bfr fnukad 20-10-2021A** 4. Upon service of summons, the appellant appeared before Family Court and submitted an application under Order 7 Rule 11 CPC stating that the marriage registration certificate bearing No. No. 08122001000000100444/2021 which has been sought to be declared null and void was issued by the competent authority at Bhilwara therefore, the Family Court at Balotra does not have jurisdiction to adjudicate the dispute. 5. The learned Family Court, Balotra after hearing both the parties, rejected the application filed by the appellant under Order 7 Rule 11 CPC by the impugned order dated 31.05.2022 on the ground that the application under Section 11 filed by respondent No. 1 seeking the marriage between appellant and respondent No. 2 to be null and void has been preferred by the respondent No. 1, while she is residing in the territorial jurisdiction of the Family Court, Balotra thus, as per the provisions of Section 19 (iiia) of the Act of 1955, the application is maintainable. The said order is assailed in the appeal. 6. Heard learned counsel for the parties and perused the material available on record. 7. Section 11 and 19 (iiia) is reproduced herein below for the sake of ready reference: “11. Void marriages - Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party] be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5. 19. Court to which petition shall be presented - Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction: (i) the marriage was solemnized. (ii) the respondent, at the time of the presentation of the petition, resides. (iii) the parties to the marriage last resided together. (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition. (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.” 8. Admittedly, in the application filed by respondent No. 1 under Section 11 of Hindu Marriage Act, 1955, prayer for cancellation of the Marriage Registration Certificate bearing No. 08122001000000100444/2021 dated 14.06.2021, issued by competent authority at Bhilwara was made. The appellanthusband and respondent No. 2 (herein) were impleaded as respondent Nos.1 and 2 in the application filed by the respondent No. 1 under Section 11 of Act of 1955. The cause of action thus did not arise in favour of the respondent No. 1 in territorial jurisdiction of Family Court, Balotra. Even otherwise, considering the language of Section 11 of the Act of 1955, the marriage between appellant and respondent No. 2 could not have been declared void at the instance of respondent No. 1. The respondent No. 1 under the provisions of Hindu Marriage Act cannot pray for relief qua third party. However, it is open for respondent No. 1 to seek declaration as per the provisions of Section 34 of Specific Relief Act to the effect that marriage between her husband, the appellant herein and respondent No. 2 is void. 9. In view of above discussion and for the reasons aforementioned, the present civil misc. appeal succeeds and impugned order dated 31.05.2022 passed by the learned Family Court, Balotra in Civil Original (Family Dispute) Case No. 67/2021 (CIS No. 68/2021) Khushboo Kanwar @ Manju Kanwar vs. Bhagwat Singh @ Bhagwan Singh is quashed and set aside. The application filed under Order 7 Rule 11 CPC by the appellant is allowed and it is held that Family Court, Balotra does not have jurisdiction to entertain the application filed by respondent No. 1 under Section 11 of Hindu Marriage Act, 1955. 10. Needless to state that this judgment shall not preclude respondent No. 1 from initiating proceedings against second marriage of appellant-husband and respondent No. 2 in accordance with law, if so advised. 11. No order as to costs.