IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.746 of 2007 USHA DEVI & ANR. Versus MOST. PARWATI DEVI & ORS. ----------- 2. 22.8.2008 Heard counsel for the petitioners and counsel for the opposite parties. In the opinion of this court the impugned order does not suffer from any jurisdictional error, in as much as the court below an appreciation of materials on record has held the matrimonial case to be not barred under any law and consequently has rejected the prayer of the defendants in their application invoking of provisions of Order-VII Rule-11(d) of the C.P.C. Counsel for the petitioners would seriously contend that when the court below in the impugned order has already held the marriage of petitioner no. 1 with Late Nawal Kishore Singh to be void, the main issue has been adjudicated even without leading and appreciation of evidence. He further says that as a matter of fact when the applicant opposite party no. 1 has admitted in paragraph no. 4 of her petition the fact with regard to marriage of the petitioner 2 no. 1 with Late Nawal Kishore singh, the suit must be held to be barred in view of Article 58 of the Limitation Act. Counsel seems to be wrong on both the grounds. Firstly in paragraph no. 4 of the application the marriage of the petitioner with Late Nawal Kishore Singh has not been admitted by the opposite party. What has been actually said therein is that the petitioner came in contact with the husband of opposite party no. 1, who according to her own case in paragraph 2, was married with Nawal Kishore Singh in the year 1954. On that premises relief has been sought by opposite party no. 1 in the matrimonial case that the alleged second marriage of the petitioner with Nand Kishore Singh during subsistence of the first marriage of the opposite party no. 1 be declared as void in view of section 5 of the Hindu Marriage Act. As a matter of fact the relief sought by the applicant opposite party no. 1 in her matrimonial case is that the alleged marriage of the petitioner with her husband Late Nawal Kishore Singh be declared to be void and the three sons of 3 the petitioner be also declared the illegitimate issues from a unholy and illegal relationship between the petitioner and Late Nawal Kishore Singh. The Court below in this regard has also gone into issue of maintainability of matrimonial case and has held the same to be maintainable by recording the following findings. “The learned lawyer appearing for the defendants has submitted that under the provisions of Sec. 11 of the Act only the parties to the marriage by filing a petition can seek a declaration that the marriage solemnized in between the two is void one and in this case the plaintiff no. 1 claiming herself to be the first wife can not seek such declaration as she is a 3rd party to the marriage in between the defendant no. 1 and Late Nawal Kishore Singh but under the provisions of Sec. 7 explanation B” a suit or proceeding for a declaration as to the validity of marriage or as to matrimonial status of any person and u/s 7 E a suit for proceeding for a declaration as to the legitimacy of any person can be instituted in a family court and the present suit has just been filed by the plaintiff no. 1 and 2 for a declaration as to the validity of marriage of defendant no. 1 with Late Nawal Kishore Singh and for further declaration that the 3 sons born to defendant no. 1 from the wedlock of Late Nawal Kishore Singh are ill-legitimate children of Late Nawal Kishore Singh and considering this aspect of the matter and having regard to the provisions of Sec. 4 1(1) explanation B and E I hold that the suit is not barred under the provisions of Sec. 11 of the Hindu Marriage Act. Besides this the suit is also not barred u/s 23(D) of the Hindu Marriage Act as because Sec. 23 prescribes about the decrees to be prepared under the provisions of the Hindu Marriage Act and in sub clause (ID) it is only said that there should not be delay in presentation and filing of a suit u/s 11 of the Act. Besides this a marriage solemnized during the life time of a spouse is a void marriage in a accordance with the provisions of Sec. 5 of the Hindu Marriage Act and when such marriage is void one there is no need for the first wife to get such marriage void and in my mind the present suit has just been instituted to declare the marriage in between the defendant no. 2 with Late Nawal Kishore Singh void one and also that the 3 children born to defendant no. 2 from the vedlock of Late Nawal Kishore Singh the husband of the plaintiff may be declared ill-legitimate children of Nawal Kishore Singh. Therefore, having consideration of the provisions of Sec. 7 and also the specific provisions of Sec. 5 and 11 of the Hindu Marriage Act. I hold that the present suit is not barred either u/s 23(D) of Sec. 11 of the Hindu Marriage Act. Further more when the marriage in between the defendant no. 2 and Late Nawal Kishore Singh during the life time of the first wife was itself void then for seeking a declaration that the marriage is void one no limitation is required.” The aforesaid view of the court below does not suffer from any error. The apprehension of the petitioners however that conclusive 5 findings recorded in the impugned order that marriage of the petitioner with Late Nawal Kishore Singh was void would leave nothing to be decided the suit is also wholly misconceived. The court below for the purpose of examining the case of the petitioner under Order-VII Rule 11(d) of the C.P.C. has only gone into as to what was the case and counter case of the parties and therefore has merely recorded the settled proposition of law. However, if the petitioners are so apprehensive about those findings in the impugned order, it is clarified by the court that as the same is only interim order and has not been passed by way of finally disposing of the matrimonial case, anything said about status of the relationship of the petitioner with Late Nawal Kishore Singh will not be adversely prejudice the petitioners and this issue being the main issue will be gone into and decided in the light of evidence at the time of final disposal of the case. So far question of limitation is concerned, from reading of paragraph 18 it would be clear that the cause of action for 6 the suit has arisen only on 20.4.2006 and therefore the said question of limitation being the mixed question of facts and law can be gone into in the light of the evidence to be led by the parties only at the time of final disposal of the suit. This however cannot be decided as a preliminary issued as has been held by the Apex Court in the case of Lufthansa German Airlines Vs. Vij Sales corporation reported in 1998(8) S.C.C. page 623. That being the position in law, this application is wholly misconceived and is hereby dismissed. (Mihir Kumar Jha,J.) Abhay Kumar