Bombay High Court
Haridas Mahadev Sasne vs Tejasvini Krushnat Bhosale on 6 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:10873
914-CRA-117-2024.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 117 OF 2024
Haridas Mahadev Sasne ..Applicant
Digitally
Versus
signed by
VISHAL
VISHAL
SUBHASH
Tejasvini Krushnat Bhosale ...Respondent
SUBHASH PAREKAR
PAREKAR Date:
2025.03.07
18:21:54
+0530 Mr. Sandeep Koregave, with Pallavi A. Karanjkar, for the Applicant.
Mr. Yuvraj P Narvankar, for the Respondent.
CORAM: N. J. JAMADAR, J.
DATED : 6th MARCH 2025
JUDGMENT :
1. A pivotal question of law which arises for consideration, in this
revision application, is: "whether a suit for declaration simpliciter that
there is no marital relationship between the plaintiff and the defendant,
is maintainable" ?
2. The background facts in which the aforesaid question crops up for
consideration can be stated as under:
2.1 The plaintiff and the defendant are residents of the same village.
They were acquainted with each other. The defendant took undue
advantage of the proximity, and falsely claimed that defendant's
marriage was solemnized with the plaintiff on 21 st September 2018 at
Janjagruti Matrimonial Alliance Center, Chiplun. Asserting that no valid
marriage was ever solemnized between the plaintiff and the defendant
and the later was falsely claiming that the plaintiff is the wife of the
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defendant, the plaintiff instituted a suit for a declaration that no
marriage was solemnized between the plaintiff and the defendant on
21st September 2018 or on any other day, at Janjagruit Matrimonail
Alliace Center, Chiplun or at any other place.
2.2 The defendant appeared and resisted the suit.
2.3 The defendant also filed an application for rejection of the Plaint
under Order VII Rule 11 of the Code asserting inter alia that the
plaintiff is seeking a negative declaration that no marriage was
solemnized between the plaintiff and the defendant. Such a negative
declaration cannot be granted under the provisions of Section 34 of the
Specific Relief Act 1963 ("the Act of 1963"). Thus, there was a bar to
the Suit seeking negative declaration. Resultantly, the Plaint was liable
to be rejected under Order VII Rule 11 of the Code.
2.4 The plaintiff resisted the application for rejection of the Plaint
contending inter alia that if the averments in the plaint are read as a
whole, it cannot be said that the plaintiff is seeking a negative
declaration. Moreover, the Suit cannot be said to have been instituted
under the provisions of Section 34 of the Act of 1963 only. The plaintiff
was entitled to seek declaratory relief under Section 9 and Order VII
Rule 7 of the Code de hors the provisions contained in Section 34 of
the Act of 1963. At any rate, the plaintiff was seeking a declaration as to
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her status, and, therefore, the purported bar under Section 34 of the Act
of 1963 was inapplicable.
2.5 By the impugned order, the learned Civil Judge was persuaded to
reject the application observing that a Suit of the present nature for
negative declaration was maintainable. The relief sought by the plaintiff
was of a substantive nature. Thus, there was no substance in the
application.
2.6 Being aggrieved, the defendant has invoked the revisional
jurisdiction.
3. I have heard Mr. Koregave, the learned Counsel for the applicant,
and Mr. Yuvraj Narvankar, the learned Counsel for the respondent, at
some length. The learned Counsel took the Court through the Plaint,
averments in the application for rejection of the Plaint and the reply
thereto.
4. Mr. Koregave, the learned Counsel for the applicant, would urge
that a person is not entitled to seek a negative declaration under
Section 34 of the Act of 1963. It was submitted that the text of Section
34 of the Act of 1963 warrants that the person seeking a declaration
must claim to be entitled to any legal character, status or right. A
declaration that the plaintiff is not married to the defendant does not
fall within the ambit of the main part of Section 34. Moreover, in the
case at hand, the plaintiff is seeking a mere declaration without any
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consequential relief. Therefore, the proviso to Section 34 of the Act,
1963 precludes the Court from granting a mere declaration. In these
circumstances, according to Mr. Koregave, a declaratory suit of the
present nature is clearly barred.
5. Mr. Koregave would urge that though there is a conflict of views
of the different High Courts on the aspect of maintainability of such a
suit, a Division Bench Judgment of Karnataka High Court in the case of
Bhuvaneshwari Vs Revappa Alias Rani Siddaramappa Kolli (Since
Deceased) by L.Rs1 has categorically ruled that a relief seeking negative
declaration as to marriage is beyond the scope of the provisions
contained in Section 34 of the Act of 1963. The decision to the contrary
by Calcutta High Court in the case of Joyita Saha Vs Rajesh Kumar
Pande,2 does not adequately deal with the said aspect. Therefore, the
decision in the case of Bhuvaneshwari (Supra) commands more
persuasive value.
6. In opposition to this, Mr. Narvankar, the learned Counsel for the
respondent, would submit that the declaration sought in the instant
case cannot be said to be negative in character. Section 34 of the Act of
1963 is not the sole source of a declaratory relief. Section 9 of the Code
is expansive enough to include a Suit for declaration that the defendant,
who falsely claims to be married to the plaintiff, is not the husband of
1 2009 SCC OnLine Kar 738.
2 AIR 2000 Calcutta 109.
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the plaintiff. Therefore, the very premise of the application for the
rejection of the Plaint on the count that Section 34 of the Act of 1963
bars a Suit of the present nature, is flawed.
7. Mr. Narvankar further submitted that the judgment of the
Karnataka High Court can not be construed to lay down the ratio that a
Suit for a declaration that the plaintiff is not married to the defendant
cannot be instituted. The controversy in the said case before the
Karnataka High Court was regarding the maintainability of a Suit
seeking a declaration that the defendant was not the wife of the
plaintiff, before the Family Court. Adverting to the provisions contained
in Section 7 of the Family Courts Act, 1984 the Karnataka High Court
ruled that a relief in the nature of a negative declaration in respect of a
marriage does not fall within the ambit of the provisions contained in
the Explanation to Section 7 of the Family Courts Act, 1984.
8. Mr. Narvankar further submitted that the Division Bench of
Karnataka High Court has made a passing observation that the relief of
the instant nature is beyond the scope of section 34 of the Act, 1963.
The Court has not considered the issue elaborately. The provisions and
precedents which govern the field have not been considered. Thus, the
said decision can be said to be a precedent sub silentio. To this end,
reliance was placed on a Supreme Court judgment in the case of A-One
Granites vs. State of U.P. and Ors.3.
3 (2001) 3 SCC 537.
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9. As a matter of principle, according to Mr. Narvankar, it cannot be
said that a suit for negative declaration is not at all maintainable. The
Court essentially deals with the legal character, right or status. The form
of declaration is not material. Mr. Narvankar placed reliance on a
judgment of Andhra Pradesh High Court in the case of Narhar Raj
(died) by L.Rs and Ors. vs. Tirupathybibi and Anr. 4 wherein the Andhra
Pradesh High Court held that a suit for a relief of negative declaration is
maintainable.
10. I have given anxious consideration to the rival submissions
canvassed across the bar. To start with, it may be apposite to note the
nature and contours of a declaratory decree. A declaratory decree, in
effect, cements and strengthens the legal character, right or status a
person asserts, and denied by another. A declaration as to legal
character or status protects from adverse attacks on title to such right,
character or status and obviates further litigation by putting a judicial
imprimatur over such right, character or status. Ordinarily a declaratory
relief is accompanied by the consequential relief. However, it is not
inconceivable that, in a given case, declaration itself assumes the
character of a substantive relief. Undoubtedly, in a vast majority of
cases, declaratory relief is sought under section 34 of the Act, 1963.
However, that is not the sole repository of the power to grant a
declaration. A civil Court in exercise of its ordinary civil jurisdiction,
4 2002 SCC OnLine AP 1032.
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referable to section 9 of the Code, may grant a declaration dehors the
provisions contained in section 34 of the Act, 1963.
11. With the aforesaid preface, to appreciate the submissions of Mr.
Koregave, it may be appropriate to extract the provisions contained in
section 34 of the Specific Relief Act, 1963. It reads as under:-
34. Discretion of court as to declaration of status or right.--
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 able to seek further relief than a mere declaration of
title, omits to do so.
12. A bare perusal and convenient dissection of the aforesaid
provision would indicate that any person entitled to any legal character
or any right in relation to any property, may sue for declaration. The
words "character" and "property" are of expansive nature. To illustrate,
"character" may include the status and relation qua another person. The
character may encompass within its scope an office, privilege and
position with regard to a given entity. All attributes which the law vests
in a person on account of an office, position, status or relation may fall
within the ambit of the term "legal character".
13. Secondly, the declaration can be sought against any person
denying the first person's title to such character or right, and also
against any person interested to deny first person's title to such legal
character or right.
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14. Thirdly the proviso to section 34, precludes the Court from
granting a declaration simpliciter where the plaintiff though able to
seek further consequential relief, than a mere declaration omits to do
so. The proviso thus warrants a further inquiry whether in the facts of
the case, the plaintiff is able to seek further consequential relief and yet
omitted to do so. Obliviously the necessity and adequacy of
consequential relief, in addition to declaration, would hinge upon the
facts and circumstances of each case.
15. The declaration under section 34 of the Act, 1963 is, however, not
exhaustive of the power of the civil Court to grant declaratory reliefs. A
profitable reference, in this context, can be made to a judgment of the
Supreme Court in the case of Vemareddi Ramaraghava Reddy and Ors.
vs. Konduru Seshu Reddy and Ors.5 wherein the Supreme Court traced
the development of the law with regard to declaratory action and
enunciated that section 42 of the Specific Relief Act, 1877 (Old), was
not exhaustive of cases in which a declaratory decree may be made and
the civil Courts have the power to grant such declaration independent
thereof. The observation in the paragraph 11 read as under:-
11 In our opinion, s. 42 of the Specific Relief Act is not exhaustive of
the cases in which a declaratory decree may be made and the courts
have power to grant such a decree independently of the requirements of
the section. It follows, therefore, in the present case that the suit of the
plaintiff for a declaration that the compromise decree is not binding on
the deity is maintainable as falling outside the purview of S. 42 of the
Specific Relief Act.
(emphasis supplied)
5 AIR 1967 Supreme Court 436.
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16. Following the aforesaid judgment, the Supreme Court further
expounded the law in the case of M/s. Supreme General Films
Exchange Ltd. vs. His Highness Maharaja Sir Brijnath Singhji Deo of
Maihar and Ors.6 The Supreme Court enunciated that section 42 of the
Specific Relief Act, 1877 merely gives statutory recognition to well
recognized type of declaratory relief and subjects it to a limitation, but
it cannot be deemed to exhaust every kind of declaratory relief or to
circumscribe the jurisdiction of Courts to give declarations of right in
appropriate cases falling outside Section 42.
17. In the light of the aforesaid exposition of law, the edifice of the
submission of Mr. Koregave that section 34 of the Act, 1963, bars the
declaration, as sought in the instant case, and, therefore, the plaint
deserves to be rejected stands dismantled. A civil Court is competent to
grant a declaration regarding the marital status dehors the provisions
contained in section 34 of the Act, 1963.
18. This propels me to the moot question as to whether a negative
declaration as to marital status can be granted. First and foremost, from
the phraseology of section 34 of the Act, 1963, (extracted above) an
inexorable inference can not be drawn that such a negative declaration,
cannot be made. As noted above, the term legal character is of wide
amplitude. The 'marital status' as a personal attribute and qua a
particular person, squarely falls within the ambit of legal character. If a
6 AIR 1975 Supreme Court 1810.
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person can seek a declaration that he is legally weeded to the
defendant, a fortiori , there does not seem any impediment in seeking a
declaration that he is not married to the defendant. The negative form
of declaration is nothing but assertion of a particular positive marital
status. If the defendant denies or is interested in denying such marital
status asserted by the plaintiff, a declaration can be legitimately sought
under the provisions of section 34 of the Act, 1963 itself.
19. Indeed there seems to be a cleavage in the judicial opinion of the
High Courts on the tenability of such a suit for negative declaration as
to marital status. In the case of Bhuvaneshwari (supra) which
constituted the sheet anchor of submission of Mr. Koregave, a Division
Bench of Karnataka High Court while deciding the question as to
whether a suit seeking declaration that the defendant is not the wife of
the plaintiff is maintainable before the Family Court, after considering
the provisions contained in section 7 of the Family Courts Act, 1984
which confers the jurisdiction upon a Family Court, held that the relief
in the nature of negative declaration in respect of a marriage, is not
tenable before the Family Court. After recording aforesaid view, the
Division Bench ventured to add that the relief of such nature was even
beyond the scope of section 34 of the Act, 1963. The observations in
paragraph 22 of the judgment are relevant and hence extracted below:-
22] In fact, we find a relief of this nature is even beyond the scope of
Section 34 of the Specific Relief Act as a negative declaratory relief
to declare that the marriage had never taken place, is not one that can
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come within scope of Section 34 of the Specific' Relief Act.
Accordingly, when it is a relief that cannot be granted in law, there is
no way the civil court can grant a declaratory relief.
20. Per contra, a Division Bench of Calcutta High Court, in the case of
Joyita Saha (supra) ruled that since the marriage itself was denied and
the prayer was made in the suit for a declaration that there was no
marriage between the parties, the suit as framed was quite maintainable
in law.
21. The controversy, however, seems to have been settled by a
decision of the Supreme Court in the case of Balram Yadav vs.
Fulmaniya Yadav7. In the said case, the High Court of Chattisgarh had
allowed an appeal against a decree passed by the Family Court to the
effect that the respondent was not the legally married wife, on the
ground that a negative declaration was outside the jurisdiction of the
Family Court. Referring to the provisions contained in sections 7 and 8
of the Family Court Act, 1984 the Supreme Court held that in case there
is a dispute on the matrimonial status of any person, a declaration in
that regard has to be sought only before the Family Court. It makes no
difference as to whether it is an affirmative or negative relief. What is
important is a declaration regarding marital status. The observations in
paragraph 7 are material and hence extracted below:-
7. Under Section 7(1) Explanation (b), a Suit or a proceeding for a
declaration as to the validity of both marriage and matrimonial status of
a person is within the exclusive jurisdiction of the Family Court, since
under Section 8, all those jurisdictions covered under Section 7 are
7 (2016) 13 SCC 308.
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excluded from the purview of the jurisdiction of the Civil Courts. In
case, there is a dispute on the matrimonial status of any person, a
declaration in that regard has to be sought only before the Family
Court. It makes no difference as to whether it is an affirmative relief or
a negative relief. What is important is the declaration regarding the
matrimonial status. Section 20 also endorses the view which we have
taken, since the Family Courts Act, 1984, has an overriding effect on
other laws.
(emphasis supplied)
22. Mr. Koregave attempted to distinguish the aforesaid judgment by
canvassing a submission that the ratio in the aforesaid decision is
restricted to the Family Court, and that a civil Court would not be
empowered to grant negative declaration as to marital status.
23. The submission simply does not merit countenance. As noted
above, the civil Court has power to grant declaratory relief even
independently of section 34 of the Act, 1963. The principle that the
form of declaration does not matter and it is the status or legal
character with regard to which the Court makes the declaration that is
of substance, applies with even greater force to the proceedings before
the civil Court which has inherent jurisdiction to decide all suits of civil
nature unless their cognizance is either expressly or impliedly barred.
24. Lastly, the submission that a suit for mere declaration without any
consequential relief, is not maintainable also does not carry much
conviction. In a case of the present nature, the declaration about the
marital status itself assumes the character of a substantive relief. The
plaintiff in such a case is not required to seek any further relief. The
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declaration of marital status bears upon the rights and obligations of the
parties and also serves the purpose of vindication of legal character.
25. The upshot of the aforesaid consideration is that a suit for a
negative declaration that the defendant is not legally married to the
plaintiff is maintainable. Consequently, the civil Judge can not be said to
have committed any error in rejecting the application for rejection of
the plaint.
Hence, the following order.
ORDER
(i) The application stands rejected.
(ii) No costs.
[N. J. JAMADAR, J.]
