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Sm. Lagna Bhattacharjee Vs. Shyamal Bhattacharjee - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 57 of 1973
Judge
Reported inAIR1975Cal6
ActsSpecial Marriage Act, 1954 - Sections 18, 24 and 42
AppellantSm. Lagna Bhattacharjee
RespondentShyamal Bhattacharjee
Appellant AdvocateManindra Nath Ghosh, ;Kanan Kumar Ghosh and ;Dilip Kumar Seth, Advs.
Respondent AdvocateSatyendra Prasad Sen, Amicus Curiae
DispositionAppeal dismissed
Excerpt:
- .....under hindu form and rites. they thereafter registered their marriage under chapter iii of the special marriage act, 1954, which contains the provisions of sec. 15 onwards.3. the court below dismissed the wife's application made under section 25 of the said special marriage act of 1954 for the annulment of the hindu marriage by a decree of nullity,.4. the only question that calls for consideration is whether a marriage celebrated in other forms but registered under chapter iii of the special marriage act, 1954 can be declared a nullity under the provisions of the special marriage act. 1954 under section 25 because of the effect of registration of such marriage read with section 18 of the act which says inter alia that the marriage shall 'be deemed to be solemnized under this act'.....
Judgment:

Laik, J.

1. My learned brother has dealt with the case fully. I agree that the appeal should be dismissed.

2. A Bhattachariee Brahmin couple, celebrated their marriage under Hindu form and rites. They thereafter registered their marriage under Chapter III of the Special Marriage Act, 1954, which contains the provisions of Sec. 15 onwards.

3. The Court below dismissed the wife's application made under Section 25 of the said Special Marriage Act of 1954 for the annulment of the Hindu marriage by a decree of nullity,.

4. The only question that calls for consideration is whether a marriage celebrated in other forms but registered under Chapter III of the Special Marriage Act, 1954 can be declared a nullity under the provisions of the Special Marriage Act. 1954 under Section 25 because of the effect of registration of such marriage read with Section 18 of the Act which says inter alia that the marriage shall 'be deemed to be solemnized under this Act' referring thereby to the Special Marriage Act, 1954. According to the appellant, by the said deeming provision. the whole of the Special Marriage Act is made applicable even to all other forms of marriage and all the marriages celebrated in other forms, are thus to be deemed to be marriages solemnized under the Special Marriage Act, 1954.

5. We are told that there is no decision on the point.

6. The whole Act of 1954 has been very carefully considered by us specially all the sections in Chapter III, IV. V and VI thereof. The grounds of nullity in the Special Marriage Act are not exactly the same under the Hindu Marriage Act or under some other Acts. The deeming provision has been introduced in the Special Marriage Act for a special purpose. Specially Sections 19, 21, 24 and 42 of the Special Marriage Act, 1954, go against the main contention. In short, I may conclude that if this argument is accepted there would be severance of the members in the Hindu family where marriages were performed under Hindu rites succession to property would differ amongst the members and many other absurd results would occur. The repealing section is of no help to the appellant.

7. My answer therefore is--

Marriages celebrated in other forms of Marriage cannot be declared null or void under the provisions of the Special Marriage Act, 1954 though the marriages celebrated in other forms have been registered under the Special Marriage Act, 1954. Only remedy that is available to a spouse that the registration under the Special Marriage Act. 1954 might be declared to be of no effect if sufficient grounds exist therefor. The marriages celebrated in other forms would continue unless they are declared null and void under the provisions available under those forms of marriage and under the respective Marriage Acts.

N.C. Mukherji, J.

8. This appeal arises out of a suit brought by the wife under Section 25(1)(a) of the Special Marriage Act, 1954 which was dismissed by the learned Additional District Judge, 7th Court, Alipore.

9. The appellant's case is that she was married with the respondent on the 6th, day of May. 1969, according to Hindu rites from the house of her maternal uncle at Kasba, On June 13. 1969 she and the respondent registered the marriage according to the provisions of the Special Marriage Act, 1954. It is alleged by her that owing to the wilful and continued refusal of the respondent the marriage has not been consummated. She has accordingly brought the suit for annulment of the marriage by a decree of nullity.

10. The respondent did not appear and contest the suit though duly summoned. The learned Additional District Judge held that the petitioner's marriage with the respondent which was celebrated in other form cannot be annulled by a decree of nullity under Section 25(1) of the Special Marriage Act.

11. Being aggrieved by the aforesaid judgment and decree the wife has come up before this Court in appeal. In this Court also no one appeared on behalf of the husband respondent and Mr. Satyendra Nath Sen was requested by us to appear as amicus curiae and was so good to agree.

12. Mr. Manindra Nath Ghosh appearing on behalf of the appellant contends that the learned Judge was wrong to hold that the petitioner was not entitled to get any relief under the Special Marriage Act as the marriage between the parties was previously performed according to Hindu rites. Mr. Ghosh submits that Chapter III of the Special Marriage Act deals with registration of marriages celebrated in other forms. Section 18 under this Chapter lays down that 'where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter (Chapter III), the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act'. Mr. Ghosh contends that as soon as the marriage is registered under this Act, such a marriage as well as a marriage which is solemnized according to the provisions of this Act, stand on the same footing and as such all the reliefs which a party to a marriage solemnized under the Act can claim in a court of law can also be claimed by a party to a marriage celebrated in other forms and registered under the Special Marriage Act.

13. Ms. Satyendra Prosad Sen fully agrees with the submissions made by Mr. Ghosh and goes a step further when he submits that ate soon as the marriage is registered under the provisions of the Special Marriage Act and that marriage is deemed to be a marriage under the said Act. the previous marriage loses its existence and it becomes a marriage under the Special Marriage Act and all the provisions of the Act would apply to such a marriage. We are unable to agree with the submissions made by Mr. Ghos and Mr. Sen because there is a clear distinction between a marriage solemnized under the Special Marriage Act and a marriage deemed to be solemnized under the said Act Section 25 lays down the grounds on which any marriage solemniz ed under this Act may be annulled by a decree of nullity. This section does not lay down that a party to a marriage celebrated in other form and registered under this Act can have the marriage annulled by a decree of nullity. Similarly Section 24 which deals with void marriages lays down that any marriage solemnized under this Act shall be null and void and may be declared by a decree of nullity on certain conditions enumerated in the section. As has already been indicated Section 18 provides that 'a marriage celebrated in other form and registered under the Special Marriage Act will be deemed to be a marriage solemnized under the said Act and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents'. It is thus seen that it is only for the purpose of sanctioning legitimacy to certain class of children that a marriage celebrated in other form and registered under the Special Marriage Act shall be deemed to be a marriage solemnized under the said Act and for no other purpose. Section 24 again makes a clear distinction between a marriage solemnized under this Act and a marriage deemed to be solemnized under this Act within the meaning of Section 18. Section 24 Sub-clause (1) lays down that '(i) Any marriage solemnized under this Act shall be null and void and may be so declared by a decree of nullity if -- (i) any of the conditions specified in Clauses (a), (b), (c) and (d) of Section 4 had not been fulfilled, or (ii) the respondent was impotent at the tune of the marriage and at the time of the institution of the suit'. Sub-section (2) of this section reads as follows: 'Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any conditions specified in Clauses (a) to (e) of Section 15'. Thus it is seen that it is very clear that the provisions of Section 24(1) do not apply to a marriage deemed to be solemnized under the Act within the meaning of Section 18 but for non-fulfilment of conditions specified in Clauses (a) to (e) of Section 15, only the registration of such marriage under Chapter III may be declared to be of no effect and nothing more. This section nor any other provision contained in this Act can even touch the marriage which has been celebrated in other form. This point in our opinion, has again been set at rest by a specific provision namely Section 42 of the Special Marriage Act. This is a saving clause and the Section reads as follows:

'Nothing contained in this Act shall affect the validity of any marriage not solemnized under its provisions; nor shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage'.

This section means to say that this Act has no effect on the validity of marriage solemnized otherwise than under the provisions of the Act. As has already been indicated. the only effect of registration is to give legitimacy to a certain class of children. Moreover the parties often like to have the marriage registered under this Act for having a good evidence of the marriage. A marriage celebrated in other form can simply be registered under the provisions of the Special Marriage Act and that registration can again be declared to be of no effect for non-fulfilment of certain conditions.

14. The petitioner's definite case being that the marriage between them was celebrated earlier according to Hindu rites and the parties simply registered the marriage according to the provisions of the Special Marriage Act, the learned Judge was quite right to hold that the provisions of Section 25 are not available to the petitioner.

15. In the result, the appeal is dismissed on contest. The judgment and decree passed by the learned Additional District Judge are hereby confirmed. There will be, however, no order for costs.


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