Page No.# 1/4 vs Ambika Devi
2025 Latest Caselaw 1982 Gua

Gauhati High Court

Page No.# 1/4 vs Ambika Devi on 5 August, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                              Page No.# 1/4

GAHC010051282024




                                                                        2025:GAU-AS:10119

                                THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                    Case No. : RSA/49/2024

            TIKA RAM NEPAL
            S/O LATE DAL BAHADUR
            RESIDENT OF VILLAGE NASBOR, MOUZA AND PS BEHALI, DIST
            BISWANATH, ASSAM



            VERSUS

            AMBIKA DEVI
            W/O AMBIKA DEVI
            RESIDENT OF SONAIPAM, PO AND PS CHADUAR, DIST SONITPUR, ASSAM



Advocate for the Petitioner     : MR. S BISWAS, MS D DEVI

Advocate for the Respondent : MR. A IKBAL, MS A BORAH,MR. S C BISWAS

:: PRESENT ::

THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Appellant : Mr. S. Biswas, Advocate.

                              For the Respondent:      Mr. A. Ikbal,
                                                       Advocate.

                              Date of Hearing :        30.07.2025.
                              Date of Judgment :       05.08.2025.
                                                                                            Page No.# 2/4


                              JUDGMENT AND ORDER (CAV)

Heard Mr. S. Biswas, learned counsel appearing for the appellant as well as Mr. A. Ikbal, learned counsel representing the respondent.

2. This is a Regular Second Appeal under Section 100 of the Civil Procedure Code (CPC) whereby the judgment dated 01.02.2024 passed by the court of learned Civil Judge (Sr. Divn.), Sonitpur, Tezpur in Title Appeal No.01/2023 affirming the judgment and decree dated 16.11.2022 passed in T.S. No.129/2017 by the learned Munsiff No.2, Sonitpur, Tezpur.

3. The appellant is married to Smti. Tara Devi. They have two sons.

4. The appellant is an employee of Assam Rifles. Before joining the service, he looked after the family business of selling milk. At that time, the respondent Ambika Devi was engaged as a labourer in the said business.

5. In the last part of 1998, the respondent appeared before the superior officer of the appellant and claimed to be a married wife of the appellant. A Departmental Inquiry was instituted against the appellant. The result of the inquiry went in favour of the appellant. Even then, the appellant was dismissed from service. He filed a writ petition being WP(C) No.4097/2002 before this Court. This Court had set aside the dismissal order. According to the appellant, this Court had decided that the claim of the present respondent that she is the legally married first wife of the appellant, was not proved.

6. The appellant was accordingly reinstated in service. Thereafter, the present respondent filed an application before the Chief Judicial Magistrate, Sonitpur, Tezpur under Section 125 of the CrPC seeking monthly maintenance from the appellant. Since, the appellant was posted at Manipur, he could not properly contest the said application at Tezpur. For his absence, the court of the Chief Judicial Magistrate, Sonitpur, directed him to pay ₹2,500/- per month to the present respondent, as maintenance.

7. The appellant filed a revision petition before the learned Sessions Judge, Sonitpur, Tezpur against the said judgment. The revisional court also refused to interfere with the order of the trial court.

8. After all those incidents, the appellant filed the suit being T.S. 129/2017 against the present respondent seeking a declaration that she is not the legally married wife of the appellant.

9. The respondent pleaded before the trial court that the court of the Munsiff No.2 has no jurisdiction to entertain the suit because the subject-matter of the suit is governed by the Family Courts Act. The trial court after referring to Sections 7 and 8 of the Family Courts Act, dismissed the suit for want of jurisdiction.

10. The appellant preferred an appeal before the court of Civil Judge, (Sr. Divn), Sonitpur, Tezpur. The appellate court also affirmed the view taken by the Munsiff No.2.

11. Mr. Biswas has submitted that the learned trial court has relied upon a decision of the Supreme Court that was delivered in Balram Yadav v. Fulmaniya Yadav, reported in (2016) 13 SCC 308. According to Mr. Biswas, there is no Family Court at Sonitpur and therefore, the Family Courts Act is not applicable within the district of Sonitpur. Mr. Biswas has further submitted that the Family Courts Act create a bar in the jurisdiction of a 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. In order to buttress his point, Mr. Biswas has relied upon the judgment of the Hon'ble Supreme Court that was delivered in Page No.# 3/4

Samar Kumar Roy v. Jharna Bera, (2017) 9 SCC 591. Paragraph 16 of the said judgment is quoted as under:

"16. 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 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."

12. Per contra, Mr. Ikbal has submitted that under Section 8 of the Family Courts Act, the jurisdictions covered under Section 7 of the said Act are excluded from the purview of the jurisdiction of the civil courts. In support of his claim, Mr. Ikbal has relied upon a decision of Balram Yadav (supra). Paragraph 7 of the said judgment is quoted as under:

"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 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."

13. I have given my anxious considerations made by the learned counsel of both sides.

14. I have decided to agree with Mr. Biswas when he submitted that the Family courts Act would be applicable where there is a Family Court. At Sonitpur, there is no Family Court. So, the citizens of Sonitpur has to depend upon the available courts there. They cannot be compelled to travel to another place or city to get legal relief. Moreover, Section 8A of the Family Courts Act excludes civil court's jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Page No.# 4/4

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 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.

15. For the aforesaid reasons, the learned Munsiff as well as the learned Civil Judge, Sonitpur both seem to have erroneously oriented themselves and arrived at incorrect findings. The suit filed by the present appellant is maintainable in a civil court. Therefore, the impugned orders of dismissal of the suit by the Munsiff No.2 and the judgment of the learned Civil Judge, Sr. Divn. affirming the said order are set aside.

16. The suit filed by the appellant shall be restored to file and the trial court of Munsiff No.2 shall proceed to dispose of the case in accordance with procedure as laid down by law.

With the aforesaid direction, the regular second appeal is disposed of.

JUDGE

Comparing Assistant