Dilip Kumar Mondal vs Pratima Mondal

Sugato Majumdar, J. :

The instant First Miscellaneous Appeal was filed against a judgment and decree dated 13^th March, 2001 passed by the Civil Judge, Senior Division, 2^nd Court at Krishnanagar, Nadia in Title Appeal No. 160 of 1999 setting aside the judgment and decree dated 18^th August, 1999 passed by Civil Judge, Junior Division, 3^rd Court, Krishnanagar, Nadia in Title Appeal No. 136 of 1996.

The instant appeal offers a very short periphery of consideration.

The Appellant/Plaintiff instituted the suit against the Defendant/Respondent. The Appellant is the husband of the Respondent who filed the suit before the Trial Court, praying for a declaratory decree that the marriage is void for absence of solemnisation. The Trial Court decreed the suit. Among others, the Trial Court considered that the civil suit praying for declaration, as in this case, is maintainable and the suit should be instituted in the court of the lowest sung. The Trial Court was fortified by two decisions of this Court, namely, (1982) 2 C.L.J. 366 and 89 C.W.N. 671. The Trial Court came to the conclusion that it was competent and had jurisdiction to entertain, try and determine the suit. Then the Trial Court went to the extent of discussing the essentials of a valid marriage and finally decided the suit in favour of the Appellant/Plaintiff.

An appeal was preferred the First Appellate Court set aside the impugned judgment and remanded the matter for taking decision afresh after framing proper issues and after taking further evidence of the parties on additional issues.

On being aggrieved and dissatisfied the instant appeal was preferred.

This appeal offers a unique spectre of ignorance and incompetence. Both the Courts were oblivious of, least talk of ignorance, the essential provisions of the Hindu Marriage Act, 1955. Section 19 of the Hindu Marriage Act, 1955 provides that every petition under the Act shall be presented before the District Court of competent jurisdiction. The Act contemplates and makes provision for avoiding a marriage on the ground of nullity. The very specific provision of the Hindu Marriage Act, 1955 creates matrimonial jurisdiction to be exercised by the District Court. The authority to decide on validity, invalidity or nullity of a hindu marriage is of the District Court. Scheme of the Act rules out impliedly jurisdiction of ordinary civil courts to decide on validity or invalidity of hindu marriage. Section 9 of the Code of Civil Procedure, 1908 provides that the courts shall have jurisdiction to try all suits of a civil nature unless cognizance is expressly or impliedly barred. The Hindu Marriage Act, 1956, creating specific jurisdiction of the district courts to decide on nullity, validity or invalidity of marriage ousted the jurisdiction of the ordinary civil courts. Jurisdiction herein means authority of a court to decide a lis, absence of which makes an order or a judgment nullity.

Both the Courts below never considered the jurisdictional issue and usurp the power and authority of the District Court in deciding the lis. Therefore, both the judgment and decree passed by the Civil Judge, Junior Division as well as the Civil Judge, Senior Division are null and void having no jurisdiction, in the sense authority, to pass the same.

Accordingly, the instant appeal is allowed to that extent and the judgments and orders, as aforesaid passed by the Trial Court as well as the First Appellate Court are hereby set aside.

The instant appeal stands disposed of.

LCR be returned.