Bhagwat Singh @ Bhagwan Singh vs Khushboo Kanwar @ Manju Kanwar
2022 Latest Caselaw 14000 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
              D.B. Civil Misc. Appeal No. 1196/2022

Bhagwat Singh @ Bhagwan Singh S/o Lal Singh, Aged About 32
Years, B/c Rajput, R/o Loharon Ki Seri, Raithal Road, Bhawrani,
Tehsil Aahore, P.s. Nosara, Distt. Jalore At Present Nehru Bazaar,
Markapur, Distt. Prakashan (Andhra Pradesh)           ----Appellant


                                   Versus
1. Khushboo Kanwar @ Manju Kanwar W/o Bhagwat [email protected]
   Bhagwan Singh, Aged About 23 Years, W/o Bhagwat Singh @
   Bhagwan Singh, B/c Rajput, R/o Loharon Ki Seri, Raithal
   Road, Bhawrani, Tehsil Aahore, P.s. Nosara, Distt. Jalore At
   Present Bhaylon Ki Seri, Khandap, Tehsil Samdari, Distt.
   Barmer..
2. Devyani Solanki D/o Khuman Singh, B/c Rajput, R/o 19/a,
   Jawahar Nagar, Pasal Road, Bhilwara.
                                                                ----Respondents


For Appellant(s)         :     Mr. Rajesh Choudhary
For Respondent(s)        :     Mr. S.S. Rathore



           HON'BLE MR. JUSTICE SANDEEP MEHTA
          HON'BLE MR. JUSTICE KULDEEP MATHUR

                               JUDGMENT

29/11/2022

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

(2 of 5) [CMA-1196/2022]

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.

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.

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. अतः प्रार्थीया की प्रार्थना हैं कि -

(अ) कि विप्रार्थी सं. 1 का विप्रार्थी सं. 2 के साथ प्रार्थीया के जीवनकाल मे हुये द्वितीय विवाह दिनांक 22.02.2021 व विवाह पंजीयन रजिस्ट्रीकरण संख्या 08122001000000100444/2021 रजिस्ट्रीकरण की दिनांक 14.06.2021, जारी करने की तारीख 05.07.2021 को अवैध व शून्य घोषित कर उक्त विवाह को खण्डित घोषित किया जाकर रद्द व निरस्त करावे, इस आश्य की डिकी प्रार्थीया के पक्ष मे व विप्रार्थीगण के विरूद्ध जारी करावे।

(ब) कि अन्य अनत ु ोष जो बहक प्रार्थीया को दिरावे ।

इति दिनांक - 20.10.2021"

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

(3 of 5) [CMA-1196/2022]

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.

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.

Heard learned counsel for the parties and perused the

material available on record.

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 2 [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, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or 2 [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]

(4 of 5) [CMA-1196/2022]

(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.]"

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 appellant-

husband 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.

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

(5 of 5) [CMA-1196/2022]

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.

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.

No order as to costs.

                                   (KULDEEP MATHUR),J                                     (SANDEEP MEHTA),J
                                   44-Ravi Kh/-









Powered by TCPDF (www.tcpdf.org)