high court form no. (j) 2. heading of judgment in...

Title Suit No. 18/ 2013 Dated: 23.12.2015

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HIGH COURT FORM NO. (J) 2.

HEADING OF JUDGMENT IN ORIGINAL SUIT.

IN THE COURT OF MUNSIFF NO. 2 AT TINSUKIA.

DISTRICT-TINSUKIA

Title Suit Case No. 18/2013

Present: Smti Karuna Devi, A.J.S.

Munsiff No.2, Tinsukia

Wednesday, the 23rd day of December, 2015

Smti. Alakananda Devi Konwar,

W/O. Sri Arun Ch. Konwar,

R/O. Tinsukia Railway Colony, Quarter No. DH-2/C,

P.O. & Distt. Tinsukia, Assam .................. Plaintiff

-Versus-

1. Smti. Trishna Baruah,

W/O. Late Ranjit Baglari,

D/O. Late Kuladhar Baruah,

R/O. Getho Pathar Dehing Kinar,

P.O. & P.S. Naharkatia,

Distt. Dibrugarh, Assam ................ Defendant

2. Sri Arun Chandra Konwar,

S/O. Late Baneswar Konwar,

Presently residing at Tinsukia Railway Colony,

Qrtr. No. DH-2/C,

P.O., P.S. & Distt. Tinsukia, Assam ………. Proforma Defendant

This suit coming on for final hearing on 05.12.15 in the presence of:

Sri J.K. Singh : Ld’ Advocate for plaintiff;

Sri R.K. Borthakur : Ld’ Sr. Advocate for defendant

and having stood for consideration to this day, the court delivered

the following Judgment:


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JUDGMENT

(Suit for declaration, injunction etc. )

1. This suit has been filed by the plaintiff for declaration that the marriage

entered into between the defendant and the proforma defendant is illegal, null and

void, that the defendant has no authority or right to expose, claim or demand to be

the wife of proforma defendant, that the defendant has no right and authority to

interfere and disturb the personal, social and official life of the plaintiff as well as

transgress into her marital life; for permanent injunction, etc.

2. Plaintiff’s Case : The brief fact of the plaintiff’s case is that the plaintiff, Smti.

Alakananda Devi Konwar and the proforma defendant, Sri Arun Chandra Konwar

were married as per customary rites on 19.02.1992 by observing Saptapadi at her

parental residence at Jaluguti Gaon, P.O. Jaluguti, Dist. Morigaon. That both she

and proforma defendant are the employees of N.F. Railway and since after a few

days of their marriage, they shifted to the railway Quarter at Tinsukia and out of

their peaceful conjugal life, two sons were born, namely, Sri Vivek Jyoti Konwar on

05.01.1993 and Sri Rituraj Konwar on 01.02.1997. That she is serving as an Office

Superintendent (Personnel) of the O/o. Divisional Railway Manager, Tinsukia

Division and that the proforma defendant is serving as Divisional Personnel Officer,

N.F. Railway, Tinsukia and that both the offices are within the same office campus.

3. That on 25.02.2013, the defendant, Smti. Trishna Baruah came to the office

of the plaintiff and started to abuse her with vulgar assertions by claiming herself as

the wife of the proforma defendant. That on such behaviour and assertions of the

defendant, she was shocked and immediately rushed to the office chamber of the

proforma defendant to confirm about the said assertions but the proforma

defendant did not reply anything. That again on 28.02.2013, the defendant again

came to the office of the plaintiff and started to humiliate her in presence of her

junior colleagues in vulgar words and on such acts, she again asked the proforma

defendant as regards the claims made by the defendant but the proforma

defendant denied having any relations with the defendant. That on 08.03.13, while


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the plaintiff was doing her household chores at her residential quarter, the

defendant suddenly entered her quarter and started to address her in an alarming

voice with vulgar and unparliamentary words and asked her to leave the quarter

with her sons and all belongings within a week and that the defendant shall reside

with the proforma defendant claiming herself to be the legally married wife of the

proforma defendant. That she was shocked and so she made enquiry in the office

of the Marriage Officer at Tinsukia about any marriage performed between the

defendant and the proforma defendant but when she received no such information,

she further made enquiries at the Office of the Marriage Officer, Dibrugarh wherein

she found that the defendant and proforma defendant had registered their marriage

under Special Marriage Act, 1954 on 22.02.2013. That she applied for a copy of the

marriage certificate and received the same on 14.05.2013. That she, on making

enquiry from the proforma defendant came to know that the defendant had first

developed friendly relations with him and thereafter the defendant by recording

some of his conversations with the defendant over mobile phone, started to

blackmail him and compelled him to register the marriage at Dibrugarh. That the

marriage solemnised between the defendant and the proforma defendant on

22.02.2013 is ex-facie illegal and void and that the defendant lured the proforma

defendant to enter into a marriage with the defendant even after being fully aware

that the plaintiff and the proforma defendant are married couple. That as per

Section 4 of the Special Marriage Act. 1954, marriage between two persons may be

solemnised if at the time of the marriage, neither party has a spouse living. That

the notice of the intended marriage was not transmitted and affixed in the Office of

the Marriage Officer at Tinsukia as required under Section 6 of the Act. 1954. That

the so called marriage between the defendant and the proforma defendant

registered on 22.02.13 is null and void and non-est in the eye of law and that the

defendant has no right and authority to claim herself as the wife of the proforma

defendant and that the defendant has no right to transgress into her married life.

That the defendant visits the plaintiff’s office and abuses her with vulgar words in

front of her colleagues demanding money. That the defendant frequently sends

vulgar sms to her on her cell number 9401215663 from cell phone numbers

8753826578 and 8753826098. That the defendant also sends lascivious sms to her

minor son on her cell number 8876137953. That on 03.05.2013, the defendant


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visited her office chamber and demanded a sum of rupees Ten Lakhs and on asking

the reason, the defendant replied that she had got her marriage registered with the

proforma defendant and that if the plaintiff failed to make payment, then the

defendant would not only abduct her son Rituraj Konwar from school but also take

steps to send the proforma defendant to jail. That on 16.05.2013, the defendant

visited her office with two male persons and threatened to arrange the money by

next day or otherwise she would kidnap her son and finish their life. That being

compelled, she filed an FIR before the O/C, Tinsukia P.S. on 17.05.2013, which was

registered as Tinsukia P.S. Case No. 313/2013 U/S. 387/ 294 IPC. Hence, she has

been compelled to file the instant suit against the defendant.

3. The plaintiff has therefore prayed for the following reliefs:-

i. Declaration that the marriage entered on 22.02.13 before the

Marriage Officer, Dibrugarh between the defendant and the proforma

defendant is illegal, null and void;

ii. Declaration that the defendant has no right and authority to expose,

claim and / or demand herself to be the wife of the proforma

defendant by virtue of the marriage registered on 22.02.13 before

the Marriage Officer, Dibrugarh;

iii. Declaration that the defendant has no right and authority to interfere

and disturb the personal, social and official day to day life of the

plaintiff as well as the defendant has no right to transgress in any

manner into the marital life of the plaintiff;

iv. Grant of permanent/ perpetual injunction restraining the defendant

from interfering and disturbing the personal, social and official day to

day life of the plaintiff as well as restraining the defendant from

entering and transgressing in any manner into the marital life of the

plaintiff ;

v. Cost of the suit;

vi. Any other relief or reliefs to which the plaintiff is found to be entitled

under law, equity and justice.


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4. Defendant’s Version :- The defendant contested the suit by filing her

written statement whereas proforma defendant failed to appear inspite of service of

summons and so the suit proceeded ex-parte against proforma defendant vide

order of this Court dated 17.06.13. Defendant filed her written statement wherein

she has specifically denied the averments of the plaintiff made out in the plaint. The

defendant has stated, inter alia, that the suit is not maintainable in law as well as in

facts; and that the plaintiffs have no right or locus standi to sue; that the suit is

defective for non-joinder and mis-joinder of necessary parties; that the plaint is not

supported by proper verification and affidavit; that the suit is barred under the law

of Limitation and Prescription U/S. 9 CPC, estoppels, waiver, acquiescence and

other provisions of the time being in force; that the suit is liable to be dismissed for

want of jurisdiction; that the suit is not properly valued; that the suit is defective ,

improper and lacks material particulars; that the plaintiff has no relationship with

the proforma defendant and that no cause of action has arisen. She has stated that

the suit is defective for mis-joinder of Sri Arun Chandra Konwar as proforma

defendant, the State of Assam, the Deputy Commissioner cum District Registrar,

Dibrugarh, the Marriage Officer, Dibrugarh, Smti. Prahelika Baglari and other

concerned authorities. That the Deputy Commissioner cum District Registrar,

Dibrugarh is the appellate authority and forum for filing appeal for cancellation of

the registered Deed, document, marriage certificate as per the Indian Registration

Act and other provisions of law for the time being in force. That since there is an

appellate forum and prescribed procedure, the subject matter of the suit can be

adjudicated under the Indian Registration Act and other provisions of law and hence

the suit does not come under the purview of the Civil Procedure Code. She further

stated that her husband, namely, Sri Ranjit Baglari died on 18.03.2005 leaving

behind herself and her daughter, Smti. Prahelika Baglari and that after his death,

she resided at her parental house at Gethupathar Gaon, Dehing Kinar, P.S.

Naharkatia. That on 01.01.2011, she went to the office of the Divisional Railway

Manager, Tinsukia Division for submission of an application form for seeking

employment and at that time, the proforma defendant, who was serving as

Personal Officer, N.F. Railways came in close intimacy with her and in doing so

induced her to enter into marriage with him by telling her that his wife had died

long back. That he also made clear that he would adopt her daughter after


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marrying her and also assured her that he would manage everything to get the job

which she had applied for and in that belief, she agreed to his proposal. That the

proforma defendant also took her to Guwahati, Sibasagar, etc. for her employment.

That on 22.02.2013, he married her under the provisions of the Special Marriage

Act, 1954 before the Marriage Officer at Dibrugarh after due notice and filling up all

required forms. That thereafter, the proforma defendant also adopted her daughter

as his own daughter by observing all religious formalities and also by executing a

Deed of Adoption. That since after her marriage with the proforma defendant, they

started to reside as husband and wife at Gethupathar, Dehing Kinar. That after a

few weeks of their marriage, he started to demand various cash and kind including

Rs.5,00,000/- from her and also demanded to transfer her father’s landed property

in his name. That on her refusal, he started to torture her both physically and

mentally and tried to her murder her for want of dowry. That finally on 11.05.2013,

he left her at Gethupather Gaon for not fulfilling his dowry demands and told her

that he would teach her a good lesson by filing a false case. That thereafter he

started to threaten her in person and over her mobile phone and told her that his

wife is still alive and that he married her by making false statement and declaration.

That by doing so, he has played fun with her chastity and life. That on 05.06.2013

at around 8 am, the proforma defendant, the plaintiff and some other associates

came to her house with a vehicle bearing Registration No. AS-23-C-5026 and

threatened her with dire consequences and tried to drag her with oblique motives

to their vehicle. That four number of cases are pending between them, which are:-

i. T.S. 18/13 (instant case)

ii. Tinsukia P.S. Case No. 313/13 (GR Case No. 762/13) U/S. 387/ 294

IPC [Smti. Alakananda Devi Konwar vs Smti. Trishna Baruah]

iii. Naharkatia P.S. Case No. 36/2013 (GR Case No. 1702/2013) U/S.

498(A) IPC [Smti. Trishna Baruah @ Konwar vs (1). Sri Arun Konwar

(2). Smti. Alakananda Devi Konwar]

iv. Case No. 84M/ 2013 under DV Act [Smti. Trishna Baruah @ Konwar

vs (1). Sri Arun Kr. Konwar (2). Smti. Alakananda Devi Konwar].

5. That she and the proforma defendant are legally married husband and wife

and that that their marriage was duly performed before the Marriage Officer,

Dibrugarh and that they led a conjugal married life at Naharkatia within Dibrugarh


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District and that their marriage cannot be questioned in this Court. She, therefore,

prayed that the suit be dismissed with costs to meet the ends of justice.

6. Issues :- In consideration of the pleadings of both the parties to the suit

and having heard the Learned Counsels of both sides, the following issues were

framed by my Learned predecessor on 26.08.2013 for determination in this suit: -

1. Whether there is a cause of action in this suit?

2. Whether the suit is maintainable?

3. Whether the marriage dated 22.02.2013 between the defendant and

proforma defendant registered before the Marriage Officer, Dibrugarh is

illegal, null and void?

4. Whether the defendant has any right or authority to interfere in the

personal, social and official life of the plaintiff by way of claiming herself

as a wife of proforma defendant ?

5. Whether the defendant is required to be restrained permanently from

transgressing into the personal, social, official and marital life of the

plaintiff?

6. Whether the Plaintiff is entitled to get the decree as prayed for?

7. What are the other relief (/s) the parties are entitled to?

7. In the instant suit, the plaintiff has examined Five (5) number of witnesses

and exhibited nine (9) number of documents. The defendant, on the other hand,

did not adduce any evidence in support of his case. Although the defendant were

afforded opportunity to cross-examine the plaintiff witnesses, yet they failed to

appear for cross-examination and hence the entire evidence of the plaintiff side

remained unrebutted.


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DISCUSSION, DECISION AND REASONS THEREOF:-

8. I have heard the arguments advanced by the Learned Counsels of both

parties at length and thereafter this Court has arrived at the following decisions,

which are discussed hereafter with their respective reasons :-

Issue No.(1):

9. This issue relates to whether there is a cause of action for the suit. This is a

suit filed by the plaintiff for declaration that the marriage entered into between the

defendant, Smti. Trishna Baruah and the proforma defendant, Sri Arun Chandra

Konwar is illegal, null and void; that the defendant has no authority or right to

expose, claim or demand to be the wife of proforma defendant; that the defendant

has no right and authority to interfere and disturb the personal, social and official

life of the plaintiff as well as transgress into her marital life; for permanent

injunction, etc. On the other hand, the defendant has denied all these claims and

has, on the other hand, asserted that she was infact lured by the proforma

defendant to get married to him on the pretext that his wife was dead and that

soon after their marriage when they started to co-habit, the proforma defendant

started to torture her for demand of dowry and also left her and thereafter the

proforma defendant alongwith the plaintiff was harassing her and that she was the

legally married wife of the proforma defendant.

10. Now, a cause of action is nothing but a bundle of facts which a party asserts

to prove a case before he can succeed and which the other party denies. That upon

the perusal of the pleadings, it reveals that there is a cause of action of the suit in

as much the pleadings contain the facts constituting the cause of action of the suit

which is alleged by the plaintiff in her plaint and accordingly denied by the

defendant in her written statement. As there is an assertion and denial of the

various facts with regard to the suit premises, this clearly discloses a dispute which

is triable by this Court. Hence, I am of the opinion that there certainly arises a

cause of action and accordingly Issue no. (1) is decided in the affirmative and in

favour of the plaintiff.


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Issue No. (2):

11. This issue relates to whether the suit is maintainable or not. One of the facts

that the defendant has raised in the instant suit during argument stage is that this

Court does not have any jurisdiction to try this suit and have stated that the Court

of Hon’ble District Judge has the exclusive jurisdiction to try the instant suit as the

Special Marriage Act specifically states so. On the other hand, Learned Counsel for

the plaintiff has argued that if the reliefs claimed in the suit are not reliefs which

can be obtained under the various provisions of the Special Marriage Act, then the

suit can be filed before the Court of Munsiff. However, before we venture to discuss

and decide the matter of maintainability of this suit, it is to be remembered that the

Court of Munsiff can in not count entertain a suit for annulment of marriage on the

grounds specified under the Special Marriage Act.

12. In the instant case, it is seen that the plaintiff has prayed that the marriage

solemnised between the defendant and the proforma defendant is a nullity being

void ab-initio, and she has also prayed for permanent injunction against the

defendant. Now, if seen as such, the plaintiff is seeking a declaration that the

marriage performed between the defendant and the proforma defendant was no

marriage and the consequential reliefs which she has sought in the nature of a

permanent injunction, thus are not reliefs which can be sought under the Special

Marriage Act. Now, if the suit falls under the purview of Section 24 or Section 31 of

the Special Marriage Act, then this Court shall clearly have no jurisdiction but if the

prayer of the plaintiff is merely a declaration that the marriage was no marriage,

then the suit being only for declaratory relief, is maintainable in the Court of

Munsiff, as contemplated under Section 34 of the Specific Relief Act. Hence, if the

instant suit is found to be merely a declaratory suit, this Court as such, shall have

the jurisdiction to try this suit with regard to the prayer of the plaintiff. In such a

case, we are required to see whether the said prayer comes under the purview of

the provisions of the Special Marriage Act or whether the same is merely a

declaration so as to be within the ambit of this Court.


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13. Now, if we carefully peruse the prayer part of the plaintiff, we find that the

plaintiff seeks a declaration for annulment of the marriage performed between the

defendant and the proforma defendant on the ground that the same is not made

under the provision of law as the plaintiff is the living wife of the proforma

defendant and that in her lifetime, proforma defendant had married the defendant.

The fact of marriage performed between the defendant and the proforma

defendant is also not denied by the defendant, who has clearly stated that she was

married to the proforma defendant on 22.02.13. Under such a circumstance, any

declaration seeking cancellation of the said marriage, being not in accordance with

the provision of law would imply nullification of the marriage. Thus, the prayer is

seen to made seeking annulment of the marriage itself on the ground that the

marriage is a nullity. Therefore, a declaration for cancellation or annulment of the

marriage clearly falls under the purview of Section 24 (1)(i) of the Special Marriage

Act and as such, the Hon’ble District Court shall have the exclusive jurisdiction as

per Section 31 of the Act. Thus, the said declaration being covered by the Special

Marriage Act, the jurisdiction of this Court to try this matter is clearly barred and so

this suit is found not to be maintainable in this Court.

Hence, in view of the above discussions and observations, this Court

is of the opinion that this Court has no jurisdiction to try this suit and so as this suit

is not maintainable, accordingly Issue no. (2) is decided in the negative and

against the plaintiff.

Issue No. (3), (4), (5), (6) and (7):

14. In view of the foregoing discussions and observations, more particularly

Issue No. (2), where it has been observed that this Court has no jurisdiction to try

the instant suit and the suit being not maintainable in this Court, this Court is of the

considered opinion that this Court also has no jurisdiction to decide the issues,

more particularly issue no (3) to (7). Therefore, it can be concluded that the

plaintiff is not entitled to get the decree or any relief suit. Accordingly, Issue No (3),

(4), (5), (6) and (7) are decided in the negative and against the plaintiff.


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ORDER

The suit of the plaintiff is dismissed on contest without costs.

Prepare decree accordingly.

Given under my hand and seal of this Court on the 23rd day of

December, 2015.

Smti Karuna Devi,

Munsiff No. 2, Tinsukia.


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APPENDIX

Plaintiff’s witnesses:

1. PW-1 : Smti. Alakananda Devi Konwar

2. PW-2 : Sri Sanjoy Chowdhury

3. PW-3 : Sri Dipankar Paul

4. PW-4 : Smti. Kamala Ngate

5. PW-5 : Sri Pulin Das

Plaintiff’s Exhibits :

1. Exhibit 1 : Marriage Certificate

2. Exhibit 2 : Certified Copy of P.S. Case No. 313/2013

Defence Witness : Nil

Defence evidence : Nil

Smti Karuna Devi,

Munsiff No.2, Tinsukia

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