Suit filed under Section 34 of the Specific Relief act is maintainable at the behest of a legal representative

AASHRAY CHAUDHARY | Symbiosis Law School, Hyderabad | 6th January 2020

Samar Kumar Roy v. Jharna Bera (Civil Appeal No. 11200 of 2017)

Facts

• The case was a result of a Title Suit filed by the plaintiff against Smt. Jharna Bera under Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as “the act”) for a declaratory decree, and under Section 38 of the act for perpetual injunction.
• According to the plaintiff, the father of the defendant by blackmail and coercion arranged a show of marriage between the plaintiff and the defendant by registration under Special Marriage Act, 1954.
• While the suit was pending, the plaintiff died, after which his mother applied under order 22 Rule 3 of the Code of Civil Procedures, 1908, to be added as a legal representative of the plaintiff. This was allowed.
• At a later date the defendant filed a revision seeking to set aside the order allowing such substitution as no right to sue survived in favour of the plaintiff’s mother.
• The High Court by order dated 15 October 2015 set aside the order allowing the substitution; this order was challenged under this appeal before the Apex Court.

Issue discussed

• Whether a suit which is, in substance a suit filed under section 34 of the Specific Relief act maintainable at the behest of a legal representatives of a dead plaintiff.
• Whether suit of such nature would be barred under any provision of law.

What was held?

• The Court with respect to the first issue held that held that the Special Marriage Act, 1954 does not express any limitation to the effect that such petition can only be filed by a party to the marriage.
• It took note of the 59^th Law Commission report 1974, in which the commission considered the same question as one before the court. The relevant paragraph of the report quoted in the Judgement is as follows

       “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.”

•  The Court also took note that Section 34 of Specific Relief Act (under which the present case was filed) uses the words “any person entitled to any legal character”. This further clarifies that a third person who has an interest in the estate of either the husband or the wife can file a suit for declaration of a marriage as void. 
• After the conclusion on the first issue the Court was confronted with the Question whether a district court or sub-ordinate civil court are barred to exercise jurisdiction over suits of matrimonial nature (as defined in section 7(a) of the Family Courts act, 1984). 
• Section 8 of the Family Court act provides for exclusion of district and other subordinate civil courts in area where a Family Court has already been established. To answer this question the court cited the Judgement in Dhalubhai v. Madhya Pradesh ^[1]in which the Court considered the same question. The Court laid down the 7 proposition of law of which tow are of relevance in the present case:

” (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.”

• It basically means that where an Act does 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, the district and other subordinate courts can exercise jurisdiction over such matter of the act.
• Section 8(a) of the Family Courts Act 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 declaration as to the legal character of an alleged marriage. A suit for declaration as to legal character also includes the character of matrimonial status of parties to a marriage when it comes to marriage which allegedly has taken place either de jure or de facto.

^[1] (1968) 3 SCR 662