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TMI Blog2017 (9) TMI 1851X X X X Extracts X X X X X X X X Extracts X X X X ..... under the said Act. Section 8(a) of the Family Courts Act excludes the Civil Court's jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial separation. It does not purport to bar the jurisdiction of the Civil Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage. Thus, it is clear that the civil court's jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law. Appeal disposed off. - CIVIL APPEAL No. 11200 OF 2017 (Arising out of S.L.P. (Civil) No.2843/2016) - - - Dated:- 5-9-2017 - MR ROHINTON FALI NARIMAN AND MR SANJAY KISHAN KAUL, JJ. For The Appellant (s) : Mr. Gourab Banerji, Sr. Adv., Mr. Sahil Tagotra, Adv., Mr. S.P. Mukherjee, Adv. And Mr. Arjun Krishnan, AOR For The Respondent (s) : Mr. Rabin Majumder, AOR, Mr. Joydeep Mukherjee, Adv. And Ms. Antima Bazaz, Adv. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside, it being held that after the death of the plaintiff, no right to sue survived in favour of the plaintiff's mother. 4. Mr. Gourab Banerji, learned senior counsel appearing on behalf of the appellant, has submitted that the High Court's judgment is wrong on principle, and has cited extracts from the 59th Law Commission Report of 1974 and various judgments to show that the plaintiff's mother could continue the suit, inasmuch as the said suit was not, in substance, a petition for dissolution of marriages under either the Special Marriage Act, 1954 or the Hindu Marriage Act, 1955. It was a suit filed under the Specific Relief Act for declaration of a legal character which, according to him, was maintainable as such. 5. On the other hand, learned counsel for respondent, has argued before us that the High Court judgment is correct and that, in substance, the suit is really for a decree for annulment of marriage and would, therefore, fall under the Special Marriage Act and/or the Hindu Marriage Act. He has referred to the Family Court's Act, 1984 Sections 7 and 8, in particular, to buttress his submission that, in any event, the Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being able to seek further relief than a mere declaration of title, omits to do so. Explanation- A trustee of property is a 'person Interested to deny a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee. Under section 35 of the Act, the declaration is binding only on the parties etc. Banerji in his Tagore Law Lectures on the Law of Specific Relief, observed:- The Indian enactment, in one respect at any rate, has a more extended scope, for it contemplates the settlement, not only of conflicting claims to property but also of disputes as to status. Holland, in his 'Elements of Jurisprudence', explaining the meaning of status says:- The Chief varieties of status among natural persons may be referred to the following causes: ( 1) Sex, (2) minority, (3) 'patria potestas' and 'manus', (4) coverture, (5) Celibacy, (6) mental defect, (7) bodily defect (8) rank, caste and official position, (9) race and colour, (10) slavery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for obtaining such discretionary declaratory and consequential reliefs. I add that the findings and observations made by the learned Munsif regarding the maintainability of the suit did not amount to determination of any other issue framed by him. I accordingly discharge this Rule without any orders as to costs. Let the records be sent down expeditiously. 10. This statement of the law has since been followed by the Calcutta High Court in Tapash Kumar Moitra vs. Pratima Roy Chowdhury (1985) 89 CWN 671. Paras 12 to 15 of the judgment are as under: 12. I respectfully agree with the above observations of Chittatosh Mookerjee, J. in the case referred to above. 13. In the instant case the plaintiff-petitioner in his plaint has neither prayed for restitution of conjugal rights nor for dissolution of marriage under Section 9 or Section 13 of the said Act. He has also not prayed for annulment of alleged marriage by a decree of nullity. The plaintiff in the instant suit has asked for a declaration that the purported registration of the alleged marriage be declared null and void a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether on the basis of the averments made in the plaint and the prayers contained therein, the suit is a suit for annulment of marriage within the meaning of Hindu Marriage Act or for a declaration under the Specific Relief Act. 18. Proceeding on such a basis it appears to me prima facie that suit is not one under S.11 or under S.12 of the Hindu Marriage Act or for any other provisions under the Hindu Marriage Act, but for a declaration relating to status. Therefore, not being a petition under the Hindu Marriage Act, S.19 of the said Act is not attracted in the instant case. The learned Munsif, therefore, has jurisdiction to try the suit before whom such a suit can be maintained. 11. A similar view has been taken by the Orissa High Court at the behest of a suit filed by the first wife in Harmohan Senapati vs. Kamala Kumari Senapati AIR 1979 Orissa 51; and by the Allahabad and Jammu and Kashmir High Courts in Smt. Ram Pyaari vs. Dharam Das Ors . AIR 1984 All 147 and Smt. Lajya Devi vs. Smt. Kamala Devi AIR 1993 J K 31 respectively. 12. An allied question that arises is as to whether suits of the present kind wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed, in Dhulabhai vs. Madhya Pradesh (1968) 3 SCR 662, this Court had occasion to consider whether the civil court's jurisdiction was expressly or impliedly barred by statute. After referring to a number of judgments, this Court laid down 7 propositions of law, of which two are of relevance to the present case: ( 2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2006 suit is itself time barred inasmuch as the so called marriage between the parties took place on 13th December, 2002 whereas the suit was filed in January, 2006, that is beyond the period of three years mentioned in Article 58 of the Limitation Act, 1963. Shri Banerji, appearing on behalf of the appellant, has drawn our attention to Section 16(1) of the Limitation Act in this behalf and has argued that, in any event in so far as his client is concerned, the cause of action would begin to run only from the date of death of the plaintiff, and that since he has applied within two and a half months for continuing the suit, the bar of limitation would not apply. We do not propose to go into this plea in view of the fact that Shri Banerji has very fairly submitted before us that instead of driving the parties to another long litigation, he would be prepared to share the estate of the deceased plaintiff with the respondent. This being the case, we call upon the respondent to file an affidavit, within a period of four weeks from today, in which she has to disclose truly and faithfully to this Court all the amounts that have been received by her owing to her alleged marriage with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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