B VENKAMMA Vs. B KOMARAMMA

JUDGEMENT

(1.) This is an unusual writ petition seeking a declaration that the alleged second marriage of respondent No.1 with one Bolli Pochaiah is null and void and no legal rights accrue to her by virtue of such marriage as the said marriage was contracted during the subsistence of an earlier marriage between the said Pochaiah and the first petitioner herein. It is alleged that the first petitioner is the lawfully wedded wife of late B. Pochaiah with whom she was married in the year 1955 and that the first petitioner has two sons and three daughters born to her by the said Pochaiah who died on 5-5-1995. It is further alleged that during the subsistence of the first marriage Pochaiah married the first respondent herein in the year 1972 after the Hindu Marriage Act came into force and that the second marriage is null and void ab initio. It is claimed that no question of bar of limitation arises as the second marriage is in law void ab initio.

(2.) The inspiration for filing this writ petition seems to have come from the recent judgment of the Supreme Court in Smt. Sarla Mudgal, President, Kalyani and others vs. Union of India wherein, it is claimed, the Supreme Court granted a similar declaration in writ petitions filed under Article 32 of the Constitution. I am afraid the petitioners cannot get any assistance from the said judgment and reliance on the same is misplaced. In that case the Supreme Court considered the question whether the second marriage of a Hindu husband after conversion to Islam without having his first marriage dissolved under law, would be invalid. The Supreme Court held that such a second marriage would be void in terms of the provisions of Section 4941.P.C. and the apostate husband would be guilty of the offence under Section 494 I.P.C. It is pertinent to note that the Supreme Court, after answering the said question of law, directed the petitioners in those cases to seek any relief which may be available to them under law in appropriate proceedings. The said judgment, therefore, is of no avail to the petitioners.

(3.) A proceeding under Article 226 of the Constitution is primarily meant for the enforcement of a legal right and for securing appropriate relief flowing therefrom. It is not akin to a declaratory suit. Even under Section 34 of the Specific Relief Act, which enables a person to institute a suit for declaration as to status or right, it is provided that the Court shall not make any such declaration where the plaintiff being able to seek further relief than mere declaration of title omits to do so. Therefore, the general rule is that a mere declaration is not a relief which can be appropriately granted in a writ petition. However, this may not be an inflexible rule and there might be some exceptions where fundamental rights are violated.