IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 82 OF 2006 Sou.Sindhu Ramchandra Sonawane ..... ...... Appellant. V/s Ramchandra Bhimaji Sonawane ..... ..... Respondent. Mr.Uday Warunjikar, Adv. for the appellant. Mr.S.S.Kulkarni, Adv. for the respondent. CORAM: A.P.DESHPANDE AND R.V.MORE, JJ. 19th March, 2010. PC: By consent of the learned counsel for the respective parties appeal is taken up for final hearing. Heard. The present appellant is the wife whereas respondent is the husband. The appellant instituted a suit for declaration simpliciter and sought a declaration that the plaintiff’s marriage with the defendant performed on 6.6.1954 is legal and valid and it be so declared. Prayer clause (b) is on the same lines and it goes to seek a declaration that the plaintiff is the lawfully married wife of the defendant and has all the rights of a lawfully wedded wife. The suit came to be dismissed. Hence this appeal. The Family Court has dismissed the petition on two grounds viz; that instead of seeking any further relief the plaintiff has only sought declaration simpliciter and thus the Family Court in view of provision of section 34 of the Specific Relief Act has held that such a declaration cannot 1 be granted. The other ground on which the suit is dismissed is bar of limitation. The appellant pleaded in the plaint that within a period of one month after the marriage the respondent denied matrimonial rights and status and on that count the trial Court has held that the suit is barred by limitation. In this appeal learned counsel for the respondent has attacked the maintainability of the suit on one more ground and the same is the decision rendered in earlier suit filed by the present appellant and the findings recorded therein operate as res judicata. It will not be out of place to mention that regular civil suit No.2184/90 was instituted by the present appellant and her son Sanjay borne out of the present appellant’s relation with the respondent. The plaint in the earlier suit has not been filed on record. However the judgment in the said suit dated 31.1.94 is filed on record. Perusal of issue No.1 reveals that this very issue which falls for consideration in the present appeal was framed in the earlier suit and answered in negative. We choose to reproduce the said issue framed in the earlier suit and findings of the court there against: “Does the plaintiff prove that she is legally wedded wife of the defendant No.2 and she is entitled to the benefits of the Provident Fund and family pension after the retirement of defendant No.2? ....No.” Two questions fall for determination in this Appeal :- (1) Whether the finding recorded in the earlier suit operate as res judicata and (2) Whether the trial court is judtified in refusing 2 discretionary relief of declaration simpliciter u/S.2.34 of Specific Relief Act. 2. The judgment and decree passed in regular civil suit No. 2184/90 dated 31.1.1994 has attained finality as it was never called in question by filing an appeal. The very relief which was denied in the earlier suit is claimed in the present suit. If the declaration sought by the present appellant-plaintiff in the present suit is granted the situation that would be obtained is that there would be two conflicting declarations made in two different suits filed by the present appellant and the said situation can never be obtained moreso, in exercise of judicial discretion. Needless to mention that section 34 of Specific Relief Act provides for discretionary relief. We do not see any illegality or impropriety committed by the Family Court in refusing to grant a declaration as sought for by the appellant-plaintiff. The only declaration that is sought without claiming any further relief is in regard to legality of the matrimonial status of the present appellant. It does appear from the record that based on the said status present appellant wanted to stake a claim to immovable property. We have perused the judgment and decree passed by the Family Court. The same does not call for any interference. 3. Learned counsel for the appellant submits that in the facts of the present case the respondent husband has admitted that the appellant-plaintiff is lawfully wedded wife of the respondent and hence on mere admission a decree could have been passed under Order 12 Rule 6 of the Code of Civil Procedure. It is seen from the record that the respondent did admit that the petitioner so also one Yamunabai both are his legally wedded wives. Be that as it may, 3 the said admission does not advance the case of the appellant any further for the impediment referred to herein above in the form of res judicata and bar of section 34 of Specific Relief Act. According to the learned counsel for the respondent Yamunabai is not joined as party to the present suit and hence any declaration, if made, in favour of the appellant would tend to adversely affect the rights of Yamunabai who also claims to be the wife of the respondent. Hence no declaration can be granted in favour of the appellant as the same would be in breach of principles of natural justice. 4. In the result, there being no substance in the appeal same deserves to be dismissed and we accordingly proceed to dismiss the same. 4