Samar Kumar Roy (D) Through Lr (Mother) vs Jharna Bera

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 11200 OF 2017 (Arising out of S.L.P. (Civil) No.2843/2016)

SAMAR KUMAR ROY (D) THROUGH LR .. APPELLANT(S) (MOTHER)

Versus

JHARNA BERA .. RESPONDENT(S)

J U D G M E N T

R.F. NARIMAN, J.

1. Leave granted.

2. The present case arises out of a Title Suit filed in January,

2006 by one Samar Kumar Roy against Smt. Jharna Bera. The suit is

instituted as a Title Suit under Section 34 of the Specific Relief

Act, 1963 for a declaratory decree, and under Section 38 of the

Specific Relief Act, 1963 for perpetual injunction. According to

the plaintiff, the father of the defendant was a senior employee

under the Directorate of Employment Exchange, Government of West

Bengal. The plaintiff was a junior employee under the same

Directorate. According to the plaintiff, by blackmail and

coercion, a show of marriage was arranged by the defendant's father

with the plaintiff by registration of the said marriage under the Signature Not Verified

Special Marriage Act, 1954.

Digitally signed by USHA RANI BHARDWAJ Date: 2017.09.12

The averments in the plaint are that 11:08:11 IST Reason:

no essential ceremonies of a Hindu marriage were performed and that

there was no consummation of the said marriage thereafter. After 2

narrating a litany of wrongs by the defendant, the plaintiff asked

for the following reliefs:

A. A decree of declaration that the defendant is not legally married wife of the plaintiff and that she has no right to claim the plaintiff as her husband inasmuch as the alleged marriages between the plaintiff and the defendant are not legal, valid and tenable in law;

B. Permanent injunction against the defendant restraining her from claiming the plaintiff as her husband and disturbing the plaintiff at his office, on the way of the plaintiff going to office and coming back home;

C. Temporary injunction;

D. For such other relief or reliefs the plaintiff is entitled to in law and equity.”

3. A written statement was filed by the present respondent in the

said suit, denying all the allegations contained therein. While

the said suit was pending, the plaintiff died on 10 th October, 2012.

On 19th December, 2012, the plaintif's mother applied under Order

22 Rule 3 of the Code of Civil Procedure, 1908, to be added as a

legal representative of the plaintiff. By an order dated 17 th

April, 2013, the plaintiff's mother was so substituted. Against

the said order, a revision was filed, and by the impugned order

dated 15th October, 2015, the order dated 17th April, 2013 was set

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 3

wrong on principle, and has cited extracts from the 59 th 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 Civil Court's jurisdiction would

be barred the moment a suit of this nature is filed.

6. Having heard the learned counsel for the parties, the question

that needs to be decided is as to whether a suit which is, in

substance, a suit filed under Section 34 of the Specific Relief Act

is maintainable at the behest of a legal representative of a dead

plaintiff.

7. Shri Banerji took us through portions of the 59 th Law

Commission Report 1974. What exercised the Law Commission was as 4

to whether the expression “on a petition presented by either

parties thereto” ought to be omitted, and third parties be allowed

to ask for the reliefs that only the husband and wife could ask for

under the Hindu Marriage Act. Examples were given of a first wife

being left out and persons who seek reliefs after the death of a

party being left out. The Law Commission opined that there was no

need to change the present law inasmuch as:

“2.4 A third party (for example, a person interested in the estate of either the husband or the wife) can certainly question the validity of their marriage in a civil suit and obtain a finding, or he may even bring a suit for a declaration that the marriage was void. But such a decree, made by a civil court, will not be a decree of “nullity”, as contemplated by matrimonial law.

2.5 A void marriage can, no doubt be invalidated at the instance of other parties, but it is better not to incorporate the remedies of third parties into the Hindu Marriage Act and confuse matrimonial relief with declaratory relief.”

The Law Commission then went on to state

“2.6. This does not mean that third parties have no remedy at all. They have- but not by a petition under the Hindu Marriage Act.

The Specific Relief Act, in Section 34, provides as follows:

“Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:

“Provided that no Court shall make any such declaration where the plaintiff, being 5

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, (11) profession, (12) Civil death, (13) illegitimacy, (14) heresy, (15) foreign nationality and (16) hostile nationality. All of the facts included in this list, which may be extended, have been held, at one time or another, to differentiate the legal position of persons affected by them from that of persons of the normal type.”

There can, therefore, be no objection if a third party claiming an interest in the property, sues for a declaration that B was not the lawfully wedded of A. In an English case, it was specifically held that a declaration may be granted that a marriage has been dissolved.

The grant of similar relief was held to be competent in a Calcutta case.”

8. We may hasten to add that since the Special Marriage Act 6

did not contain an express limitation to the effect that the

petition can only be filed by a party to the marriage, this was

also recommended and, in fact, carried out by the Marriage Laws

(Amendment) Act, 1976.

9. We find that the High Courts have uniformaly taken the view

that a suit for declaration of a legal character filed under

Section 34 can be filed by a third party plaintiff, or continued at

the behest of the legal representative of a dead plaintiff. Thus,

in Krishna Pal vs. Ashok Kumar Pal (1982) 2 Cal LJ 366 a Single

Judge of the Calcutta High Court was confronted with whether a suit

filed in the Munsif's Court for a declaration that there was no

marriage solemnized at all would be without jurisdiction. Section

19 of the Hindu Marriage Act requires all suits or petitions filed

under the Act to be instituted before a District Court, whereas a

suit for declaration as to a legal status is to be instituted in

the Munsif's court. After referring to the prayer in that case,

the learned Single Judge found:

“9. As already stated, the plaintiff has chosen not to pray for any relief either by way of annulment of decree of nullity or by way of a decree for dissolution of the alleged marriage. The plaint filed by him cannot be considered to be a petition under the Hindu Marriage Act. The plaintiff has sought for certain declaration regarding the status of the parties and for consequential reliefs and the learned Munsif has jurisdiction under the Specific Relief Act to consider whether the plaintiff has made out any case 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 7

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 and consequently cancellation of the said purported registration of marriage.

14. In my opinion this suit is simply for cancellation of purported registration of the alleged marriage under the Hindu Marriage Act, 1955 and the Hindu Marriage Registration Rule, 1958 and consequential reliefs. If it is the averment that marriage has not been solemnized, then the registration under Section 8 of the Act read with relevant provisions of the said Hindu Marriage Registration Rule by itself will not result in making the marriage complete and binding between the parties.

Such registration may raise a presumption of marriage being solemnized.

15. I am, therefore, of opinion that the plaint in the instant suit cannot be considered to be a petition under Section 19 of the said Act, and learned Munsif is fully competent and has jurisdiction to entertain, try and determine the suit.”

And in Sasanka Sekhar Basu vs. Ms. Dipika Roy AIR 1993 8

Cal 203, it was held:

“16. In the instant case although the petitioner inter alia prayed for a declaration that the marriage between the parties was void, the same will not make the plaint ipso facto a petition under the Hindu Marriage Act within the meaning of S.19 of the said Act. Under S.11 and 12 of the Hindu Marriage Act the circumstances under which a petition can be filed for annulment of marriage on the ground that the same is void are clearly specified. But in the instant case, such declaration that the marriage is void has not been asked for by the plaintiff on any of such grounds on which such an annulment can be obtained under S.12 or even under S.11 of the said Act. The instant suit really appears to be on the face of the plaint, a suit for declaration as to the status of the parties.

17. In deciding whether or not the plaint filed by the petitioner in substance is a petition under S.12 or under S.11 of the Hindu Marriage Act for annulling the marriage between the parties by a decree of nulling or for the matter of that under any other provisions of the Hindu Marriage Act and which is the proper forum for filing the suit, at the preliminary stage the Court is not called upon to record a finding about truth or otherwise of the allegations made in the plaint. The only question relevant for consideration at such a stage is 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.” 9

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 would be barred under any provision of law. The

learned counsel for the respondent has brought to our notice

Sections 7 and 8 of the Family Courts Act, 1984 which read as

follows:

7. Jurisdiction- (1) Subject to the 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; and

(b) xxx xxx xxx xxx xxx

Explanation- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) xxx xxx xxx xxx xxx

(c) xxx xxx xxx xxx xxx 10

(d) xxx xxx xxx xxx xxx

(e) xxx xxx xxx xxx xxx

(f) xxx xxx xxx xxx xxx

(g) xxx xxx xxx xxx xxx

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 suit or proceeding of the nature referred to in the Explanation to that sub-section;

(b) xxx xxx xxx xxx xxx

(c) xxx xxx xxx xxx xxx

13. It is obvious that a suit or proceeding between parties to a

marriage for a decree of nullity or restitution of conjugal rights

or judicial separation or dissolution of marriage, all have

reference to suits or petitions that are filed under the Hindu

Marriage Act and/or Special Marriage Act for the aforesaid reliefs.

There is no reference whatsoever to suits that are filed for

declaration of a legal character under Section 34 of the Specific

Relief Act. Indeed, 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:

11

(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 prescribed by the said statute or not.

(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.”

14. On a reading of the aforesaid propositions, it is clear that

the examination of the remedies provided and the scheme of the

Hindu Marriage Act and of the Special Marriage Act show that the

statute creates special rights or liabilities and provides for

determination of rights relating to marriage. The Acts do not lay

down that all questions relating to the said rights and liabilities

shall be determined only by the Tribunals which are constituted

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 12

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. Also as was pointed out, an exclusion of the

jurisdiction of the civil courts is not readily inferred. Given

the line of judgments referred to by the High Courts, and given the

fact that a suit for declaration as to legal character which

includes the matrimonial status of parties to a marriage when it

comes to a marriage which allegedly has never taken place either

de jure or de facto, 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.

15. This Court has referred to personal causes of action and held

in Smt. Yallawwa vs. Smt Shantavva (1997) 11 SCC 159 at para 6

which reads as follows:

“Save and except the personal cause of action which dies with the deceased on the principle of actio personalis moritur cum persona i.e. a personal cause of action dies with the person, all the rest of the causes of action which have an impact on proprietary rights and socio-legal status of the parties cannot be said to have died with such a person.”

16. Learned counsel for the respondent has also argued before us

that the 2006 suit is itself time barred inasmuch as the so called

marriage between the parties took place on 13 th 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, 13

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 deceased plaintiff. 50%

of the total amount stated therein shall be payable by her to the

appellant within a period of eight weeks thereafter.

17. The appeal is disposed of accordingly.

....................J. [ROHINTON FALI NARIMAN]

....................J. [SANJAY KISHAN KAUL]

NEW DELHI, SEPTEMBER 05, 2017.

14

ITEM NO.9 COURT NO.12 SECTION XVI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition (s) for Special Leave to Appeal (Civil) No.2843/2016

(Arising out of impugned final judgment and order dated 15/10/2015 in CO.No.3409/2013 passed by the High Court at Calcutta)

SAMAR KUMAR ROY (D) THROUGH LR (MOTHER) Appellant(s)

VERSUS

JHARNA BERA Respondent(s)

([AT THE TOP OF THE LIST])

Date : 05-09-2017 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

For Appellant(s) Mr. Gourab Banerji, Sr.Adv.

Mr. Sahil Tagotra, Adv.

Mr. S.P. Mukherjee, Adv.

Mr. Arjun Krishnan, AOR

For Respondent(s) Mr. Rabin Majumder, AOR Mr. Joydeep Mukherjee, Adv.

Ms. Antima Bazaz, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is disposed of in terms of the signed reportable judgment.

(USHA RANI BHARDWAJ) (SAROJ KUMARI GAUR) AR CUM PS BRANCH OFFICER

Signed reportable judgment is placed on the file.