K V UMA MAHESWARA RAO Vs. GANDAM SUJATHA

JUDGEMENT

(1.) The petitioner is alleged to have married the respondent in 1993. The petitioner filed RCS No. 160 of 1994 on the file of the Vth Senior Divisional Civil Judge, Bharuch, Gujarat State, against the respondent for declaration that there was no marriage between them, on 4-4-94. Thereafter, on 25-6-94 the respondent filed O.P.No.24/94 on the file of the Additional Subordinate Judge, Srikakulam, for restitution of conjugal rights, under Hindu Marriage Act. The petitioner filed I.A.No. 173 of 1994 in O.P. 24/94 under Sec. 10 of Code of Civil Procedure (for short, 'the Code') for stay of trial of O.P. No. 24/94, pending the trial in RCS No. 160 of 1994, on the ground that the suit was instituted earlier to the O.P. and the matter in O.P.No. 24/94 is directly and substantially in issue in the suit and the trial of the O.P. should therefore be stayed. The learned Subordinate Judge dismissed the I.A.No. 173/94 on the ground that Sec. 10 of the Code is not attracted to the facts of the case, inasmuch as the decree under Secs. 9 and 13 of Hindu Marriage Act is not a decree within the meaning of Sec.2(2) of the Code and the Civil Court has no jurisdiction to entertain the matter arising under the Hundu Marrriage Act, which has to be decided by the Special Judge constituted under the Hindu Marriage Act. Questioning the said order this C.R.P. has been filed.

(2.) It is contended by the counsel for the petitioner that the matters in both the proceedings directly and substantially in issue, are the same and under Sec. 10 of the Code the subsequent matter i.e., O.P.No. 24/94 has to be stayed and mat the consideration whether the subsequent proceeding was a civil proceeding in a Civil Courtr or not, was not germane for the exercise of power under Sec. 10 of the Code.

(3.) The issue to be decided in RCS No. 160 of 1994 filed by the petitioner is whether there was valid marriage between the parties or not. In O.P.No. 24/94 filed by the respondent wife for restitution of conjugal rights, the plea of the petitioner husband is that there was no marriage between them and no decree can be granted in the said O.P. It is therefore, seen that in both the matters the issue is validity of marriage which is directly and substantially in issue. Section 10 of the Code reads as follows: