JUDGMENT
Gitesh Ranjan Bhattacharjee, J.
1. This appeal is directed against the Judgment and order dated 31.7.87 passed by the learned Judge, 13 Bench, City Civil Court, Calcutta in Title Suit No. 634 of 1985 by which the learned Trial Judge dismissed the appellant-plaintiffs suit for declaration, as not maintainable in law.
2. The appellant-plaintiff is the mother of one late Santosh Kumar Biswas was an employee of Atomic Minerals Division, Department of Atomic Energy under the Government of India. The said Santosh Kr. Biswas died on 1.10.1984 while in service. The respondent-defendant Ila Das claims to be the widow of said Santosh Kr. Biswas. It is the case of the respondent-defendant that Santosh Kr. Biswas married her and the said marriage was solemnized under the Special Marriage Act, 1954 on I lth June, 1981 and the marriage certificate in respect of that marriage was also issued by the concerned Marriage Officer which is annexure-A to the plaint. Challenging the claim of the respondent-defendant Ila Das, the appellant-plaintiff filed the suit in March 1985 for a declaration that the plaintiff is the only legal heir of her deceased son Santosh Kumar Biswas and that the marriage solemnized on 11.6.81 under the Special Marriage Act between Santosh Kumar and the defendant was void abinltio and the certificate of marriage and the entries made in the register kept in the office of the Marriage Officer regarding the said marriage were of no effect and/or nonest and the defendant was not the wife of said Santosh Kr., since deceased. The plaintiff also prayed for further declaration that the defendant had no right title in respect of the estate left by the said deceased Santosh Kumar and also prayed for a permanent injunction restraining the defendant from realising and/or claiming any entitlement, that is, provident Fund, Employees Insurance Scheme, Pension or any benefit from the proforma defendant, Union of India or from anybody arising out of the death of the said Santosh Kumar, and also from claiming or declaring or giving out as the wife of said Santosh Kumar Biswas, since deceased.
3. The defendant filed written statement Inter alia challenging that the suit was not maintainable and the plaintiff had no locus standi to file the suit. She claimed in her written statement that she was legally married wife of late Santosh Kumar Biswas and their marriage was duly solemnized and they led normal conjugal life to the knowledge of every body till the death of Santosh Kumar. The learned court below framed issues and then on the defandant’s application, under Order 14 Rule 2 CPC, took up Issue No. 2 for hearing as a preliminary issue on the question of maintainability of the suit.
4. It may be mentioned here that In the plaint the plaintiff challenged the validity of the marriage of Santosh Kumar and the defendant mainly on two grounds. One of the grounds is that Santosh Kumar, the son of the plaintiff, was impotent on and from 1976 as well as on 11.6.81, that is, the date of marriage and till the date of his death and as such the marriage was void ab-initio. The other ground of the plaintiff assailing the validity of the marriage is that the said marriage was never consummated. It is also the case of the appellant-plaintiff in the plaint that Santosh Kumar never married the defendant and neither the defendant and Santosh Kumar ever lived together as husband and wife any formalities of marriage were observed. The learned court below has held that the plaintiff has no locus standi to bring this suit for declaration and permanent injunction and the suit is not maintainable and accordingly dismissed the suit by disposing of the Issue No. 2 In favour of the defendant. The learned Trial Court, it seems is of the view that the suit for declaration that the marriage is void is not maintainable at the instance of the mother of a deceased spouse in view of the provisions of the Special Marriage Act under which the declaration of nullity of a marriage can be prayed for by a spouse of the marriage.
5. The learned Advocate for the appellant has strongly criticised the Judgment of the learned Trial Court on the ground that the suit was filed by the mother for declaration of nullity of the marriage not under the provisions of Special Marriage Act, 1954 but under the general law of the land in view of the fact that the alleged marriage between Santosh Kumar and the defendant affects the civil right of the plaintiff and as such she is entitled to file and maintain the suit for vindicating her right, title and interest in the estate left by her deceased son, as his heir to the exclusions of the defendant,
6. The learned court below seems to be of the view that since the marriage between the parties was solemnized under the Special Marriage Act, 1954 a decree of nullity in respect of such marriage on the ground that it is void ab-initio can be sought for only by a spouse under Section 24 of the Special Marriage Act and such a decree cannot be sought for by a third party, such as the mother of a spouse, in a civil suit. We are however afraid, such a proposition is neither sound nor legally tenable. Sub-section (1) of Section 24 of the Special Marriage Act, 1954 which deals with void marriages runs thus:-
“24(1). Any marriage solemnized under the Act shall be null and void and may, on a petition presented by either party thereto against the other party, 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 has not been fulfilled; or
(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.”
7. There is no doubt that the relief under Section 24 of the Special Marriage Act, 1954 is available to a spouse of the marriage and a spouse of the marriage can file a suit against the other spouse for a decree of nullity of the marriage on any of the grounds mentioned therein in the appropriate forum in which an action for such relief lies in accordance with the provisions of the said Act and there is no doubt that a third party, that means, a person who is not a party to the marriage cannot file an application for a decree of nullity of marriage under Section 24 of the Special Marriage Act. But that does not mean that a person whose civil right in any sphere-be it in the sphere of property or estate or in the sphere of status of a civil nature, is affected or likely to be affected by any purported marriage of certain other persons cannot challenge that marriage in a properly constituted suit for obtaining a declaration that the marriage is null and void so that by such declaration his own civil right regarding property or status is vindicated and protected. Such a suit for protecting his own interest can be brought by a person in the ordinary Civil Court in view of the Section 9 of the Civil Procedure Code and there is nothing in the Special Marriage Act, 1954 which could oust such jurisdiction of the Civil Court for entertaining such suit.
8. The learned Advocate for the respondent-defendant referred to two decisions in support of his contention that the suit in the instant case is not maintainable, one being Gurucharan Kaur v. Ram Chand, and the other, Sheela Wati v. Ram Nandani, . Both these decisions are single Bench decisions. In Gurucharan Kaur v. Ram Chand (supra) it was held that the wife was not entitled to get a decree of nullity where the death of the husband occurred during the pendency of appeal. That was however a case where the wife filed a petition under Section 11 of the Hindu. Marriage Act claiming decree of nullity of marriage. In the present case however the suit has been filed not by a party to the marriage under the concerned marriage Act but by the mother of a spouse to protect her own right, title and interest through Civil Court. In the other decision Sheela Wati v. Ram Nandani (supra) it was held that a marriage though null and void for contravening any of the conditions prescribed by clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act, 1955 has yet to be regarded as a subsisting fact and it cannot be said to be wholly nonest in law, or a nullity so long as it is not declared to be null and void by a decree of nullity of the District Court on a petition presented by either party thereto against the other party to the marriage and no third person can treat the marriage to be void or have it adjudicated to be null and void in any other suit or proceeding unless it/has already been declared to be so by a decree of nullity of a District Court in accordance with the procedure prescribed by and under the Act. It may however be mentioned here that the said Single Bench decision of the Allahabad High Court in Sheela Wati v. Ram Nandani on that point was overruled by a Division Bench of the said court in Ram Pyari v. Dharam Das, , where it has been held that a marriage in contravention of Section 5(i) read with Section 11 of the Hindu Marriage Act being void, the question as to the validity of such void marriage can be gone into at the instance of a third aggrieved party even after the death of one of the spouses to the marriage. It was also held therein that any one affected by the marriage performed in contravention of clauses (i), (Iv) and (v) of Section 5 of the Hindu Marriage Act can bring civil suit for declaring such marriage void. We are in respectful agreement with the view expressed in the matter in the said Division Bench decision of the Allahabad High Court in Ram Pyari v. Dharam Das (supra).
9. In support of his argument that a person whose right, title or Interest in any properly or estate or whose civil status is in any way affected or threatened or is likely to be effected or threatened by a void marriage of certain other persons can challenge that marriage by a civil suit, the learned Advocate for the appellant has relied upon the following decisions, namely, Shankar Sekhar Basuv. Dipika Roy, , Rajeshbai v. Shantabai, , Noor Jehan v. Eugene Tiscenke and Ganga Bai v. Vijay Kumar, . In the said Supreme Court decision in Ganga Bai v. Vijay Kumar it has been held that there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one’s peril, bring a suit of one’s choice and that a suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. As we have already recorded, a suit by the mother of a spouse for declaring the marriage null and void for vindicating her own right, title and interest in the property or estate of the deceased spouse is permissible in view of Section 9 of the Civil Procedure Code and there is nothing in the concerned Marriage Act, namely, the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954 to bar such suit or to oust the jurisdiction of the Civil Court to entertain such suit. Therefore the learned Trial Court was not justified in holding that the appellant-plaintiff had no locus standi to file the suit in the Civil Court for appropriate relief. If the purported marriage between her son and the defendant-respondent is not declared to be null and void, in that event the respondent-defendant as the widow of the appellant-plaintiffs son will be entitled to claim a share in the estate of the deceased thereby affecting the extent of the right, title and interest of the plaintiff as the mother of the deceased spouse in such estate. Therefore for protecting her own interest the plaintiff is definitely entitled to file a suit in the Civil Court and also to pray for a declaration that the purported marriage between her deceased son and the defendant is null and void, because unless that declaration is made the cloud cast on the extent of her right, title and interest in the estate of the deceased son will not be cleared. Consequently, we hold that the appellant-plaintiff indeed has locus standi to file the suit as framed. But that does not necessarily settle the question about the maintainability of the suit as framed.
10. Granting therefore that the appellant-plaintiff has locus standt to file the suit, we will now examine whether the suit as framed is maintainable. It has been argued by the learned Advocate for the appellant plaintiff in this connection that without taking evidence in the case the learned court below was not justified in dismissing the suit on the ground of maintainability. In going to test the validity of the said proposition we will now examine whether the suit as framed is maintainable at all and if we find that the suit as framed is per se not maintainable, in that case there is no question of inviting evidence. It is true that in paragraph 12 of the plaint the plaintiff has stated that Santosh Kumar never married the defendant and no formalities of marriage were observed. But at the same time it is an evident fact that a marriage between Santosh Kumar and the defendant was solemnized under the Special Marriage Act, 1954 and a certificate to that effect was also granted by the Marriage Officer and the plaintiff has prayed for declaring that the marriage is void ab Initio and that marriage certificate has no effect. The concerned marriage certificate also has been annexed to the plaint itself as annexure-A. This marriage certificate was purportingly issued under Section 13 of the Special Marriage Act, 1954. Sub-section (2) of Section 13 of the Special Marriage Act, 1954 runs thus:-
“(2) on a certificates being entered in -the marriage Certificates Book by the Marriage officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of the witness have been complied with.”
11. Therefore when the Act says that the marriage certificate shall be deemed to be conclusive evidence of the fact that a marriage under the Act has been solemnized, there is no scope for any one to challenge, argue of contend or to lead evidence to show that no such marriage was solemnized, become the statutory provision of the Act makes the marriage certificate itself a conclusive proof of the solemnization of the marriage thereby leaving no scope for leading rebuttal evidence in this regard. It is not the case of the appellant-palintiff that this marriage certificate is a forged or manufactured document. In the circumstances, In view of the existence of the said marriage certificate and of the provisions of Section 13(2) of the Special Marriage Act, 1954 the solemnization of the marriage is not open to be challenged and that being so there is no question of leading any rebuttal evidence in this regard.
12. As we have seen, the appellant-plaintiff has challenged the validity of the marriage on two grounds, namely, that Santosh Kumar, the deceased son of the plaintiff and deceased husband of the respondent-defendant was impotent on the date of the marriage and till his death, and that the marriage was not consummated. Evidently the marriage was solemnized under the Special Marriage Act, 1954. Therefore the question of validity of this marriage will have to be tested on the anvil of the provisions of the said Act. Under the said Act non-consummation of the marriage, by itself, does not make the marriage void ab inltio (vide, Section 24). Section 25 of the Special Marriage Act specifies the grounds on which a marriage becomes voidable. One of the grounds on which a marriage becomes voidable under said Section 25 and may therefore be annulled by a decree of nullity under the said section is that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage. Therefore under the Special Marriage Act non consummation of marriage in specified circumstance, at best makes the marriage voidable, obviously at the option of the aggrieved spouse, and a third person like the mother of a spouse cannot assail the marriage on the ground that the marriage has not been consummated. Therefore the ground taken by the appellant-plaintiff in the plaint that the marriage between her son and the respondent-defendant is void because the marriage has not been consummated is not at all a. valid ground in law for declaring the marriage void ab tnltio and therefore the suit brought by the appellant-palintiff for declaring that the marriage is void ab initlo on the ground that the marriage was not consummated, even assuming that the marriage in fact was not consummated, is not maintainable in law. 1 ”
13. The only other ground on which the appellant-palintiff has challenged the marriage is that the deceased was impotent on the date of the marriage and continued to remain so till his death. In view of Section 24(1) any marriage solemnized under the Act is null and void if any of the conditions in clauses (a),'(b), (c) and (d) of Section 4 has not been fulfilled. These conditions of Section 4 are quoted below:-
“(a) neither party has a spouse living;
(b) neither party-
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity or epilepsy;
(c) the male has completed the age of twenty-one years and the female the age of eighteen years;
(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom a governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.”
14. In view of Section 24, a marriage under the Special Marriage Act, 1954 in violation of any of the aforesaid conditions is null and void, void ab initio and therefore any third person who is affected in respect of his civil rights by any such marriage purportingly solemnised under the Special Marriage Act but in violation of any of the aforesaid conditions can challenge that marriage for protecting his or her interest by filing a suit and in that case, if the court Is satisfied that the purported marriage under the said Act has been solemnised in violation of any of these conditions the court may declare the marriage null and void in a properly constituted suit at the instance of a third person who is or is likely to be affected In respect of his or her civil rights by such purported marriage. In the present case however the appellant-plaintiff has not challenged the purported marriage on the ground that there has been a violation of any of the aforesaid condition of Section 4 of the Act. It is submitted by the learned Advocate for the appellant-plaintiff that the marriage in this case has been challenged on the ground that the deceased was impotent at the time of the marriage and till his death. A close reading of Section 24 will however show that while the aforesaid conditions specified in clauses (a), (b), (c) and (d) of Section 4 of the Special Marriage Act as referred to in clause (i) of Sub-section (1) of Section 24 are general conditions relating to the validity of marriage, clause (ii) of Sub-section (1) of Section 24 of the Special Marriage Act does not refer to any general condition regarding the validity of the marriage but provides a purely personalised ground of invalidity of marriage available to a spouse alone and to none else. The requirement of the personalised ground is that ‘the respondent was impotent at the time of the marriage and at the time of the institution of the suit’ Unlike the general condition mentioned in clauses (a),(b),(c) and (d) of Section 4, the personalised ground of Impotency, from the very language used in clause (ii) of Section 24(1) makes it clear that the same is available to a spouse only against the respondent who was impotent at the time of the marriage and at the time of the institution of the suit. Obviously the suit mentioned therein, as will appear from the very language of Section 24 quoted earlier, is the suit brought by a spouse against the other spouse suffering from impotency. Therefore in our view the ground of Impotency as mentioned in clause (ii) of Section 24(1) is not available, for challenging the marriage, to a third person who is not a party to the marriage and therefore the present suit at the instance of the mother of the deceased challenging the validity of the marriage on the ground of impotency of the deceased son Is not maintainable. Secondly clause (ii) of Section 24(1), by reason of its own language, is available only against a party to the marriage who is impotent and who has been made the respondent in the concerned proceeding. The requirement of the said clause that the spouse concerned must be the respondent and must be impotent at the time of the marriage as well as at the time of the institution of the suit clearly indicates that the suit must be brought by one spouse against the other. However in this case even long before the filing of the present suit the spouse concerned had expiresd and therefore the requirement of clause (ii) of Section 24(1) that the person concerned must be impotent at the date of the suit could not have been fulfilled even if it could be assumed for the sake of argument that the suit referred to In the said clause (if) might be a suit brought by a third person also. In any view of the matter therefore clause (ii) of Section 24(1) is not available to the appellant-plaintiff both in law and on facts as well. We are however of the opinion, in view of the language of Section 24, that the ground of impolency for getting a declaration that the marriage is void (for the continued impotency of the spouse from the date of marriage till the date of filing of the suit), is a purely personalised ground available to the aggrieved spouse alone and not to any third party, and such ground is also not available against any person except the Impotent spouse who must be respondent in the suit. That being so the ground of impotency of the deceased is not available to the mother of the deceased for getting a declaration in a suit brought by her that the marriage is void on such ground. We therefore find that the suit as framed is not maintainable. There is therefore no question of leading evidence.
15. Although we find that the appellant-plaintiff had locus standi to file the suit for reasons we have elaborately discussed above, we cannot grant any relief to her because we also find, for reasons discussed, that the suit as framed is not maintainable. There is therefore no scope of interfering with the impugned order of dismissal of the suit as ultimately passed by the learned Trial Court on the ground of non-maintainability. The appeal therefore fails. We are however making It clear that the dismissal of the suit or the dismissal of this appeal will not In any way affect the right, title or interest of the appellant-plaintiff which she may have in the estate of the deceased under the law inspite of the validity of the marriage between the deceased and defendant, and her right to enforce the same In accordance with the law will not be in any way affected or prejudiced by the dismissal of the suit on the appeal. The appeal however is dismissed cost.
N.N. Bhattacharjee, J.
16. I agree.