BHAGWAN GANSHAMDAS MANSUKHANI Vs. CHARLOTTE ZING

JUDGEMENT

(1.) This is an application for an injunction restraining the Defendant from representing or pretending that she is the wife of the Plaintiff and also for an injunction restraining the. Defendant from proceeding with a matrimonial Suit No. 20 of 1957 of this Court instituted by the Defendant against the Plaintiff for the dissolution of an alleged marriage between the Plaintiff and the Defendant.

(2.) The Petitioner is a Captain in the Aeronautical Service and is employed as a pilot in Indian Airlines Corporation, "Faraday House", Calcutta. He is a Hindu, Indian National and of Indian Domicile and professes the Hindu faith. On 4th May, 1948 the Petitioner was lawfully married to one Sheila McKeen also professing the Hindu faith at the residence of the Petitioner at No. 24A, Stephen Court in accordance with Hindu rights and ceremonies. By a decree passed by the District Judge of the 24-Parganas, Alipore, the marriage of the Plaintiff with the said Sheila McKeen was dissolved under the Indian Hindu Marriage Act (Act XXV of 1955) on the 16th June, 1966, Believing that the said decree for dissolution had no extra territorial effect as to the limitation of time in which the Plaintiff could remarry, the Petitioner and the Defendant went through the form and ceremony of a valid marriage before the Registrar of Marriages at the Kacheri in Colombo in Ceylon on 12th September, 1956. In April 6, 1957, the Defendant took legal advice and informed the Plaintiff that the form and ceremony of marriage gone through by them in Ceylon was of no effect and that the said marriage was null and void. But notwithstanding the fact that the. marriage solemnised in Ceylon is a nullity and the Defendant is not the lawfully wedded wife of the Plaintiff, the Defendant is representing herself to be the wife of the Plaintiff and instituted a suit in this Court being Matrimonial Suit No. 20 of 1957 against the Plaintiff praying inter alia for the dissolution of the marriage. It is alleged that by reason thereof the status of the Plaintiff has been affected prejudicially, and irreparable injury and harm will result to the Petitioner (Plaintiff) if the Defendant be permitted to continue to represent herself to be the wife of the Plaintiff. The case of the Petitioner further is that as it is not possible for the Petitioner to obtain a decree of nullity of marriage under any of the Marriage or Divorce Acts, In the matrimonial jurisdiction of the Indian or Ceylon Courts, the Petitioner has filed the present suit in which this application is made for a declaration that the marriage solemnised between the Plaintiff and the Defendant in Ceylon is null and void and for an injunction restraining the Defendant from representing herself to be the lawfully wedded wife of the Plaintiff, or from proceeding with the Matrimonial Suit No. 20 of 1957 filed in this Court.

(3.) Mr. T.K. Basu, the learned Counsel for the Defendant, has raised a preliminary objection to the jurisdiction of this Court to entertain the present suit in which this application for injunction is made. It is submitted that this Court in the exercise of its Ordinary Original Civil Jurisdiction cannot entertain a suit of a matrimonial nature for a decree for nullity of marriage inasmuch as the Indian Divorce Act (Act IV of 1869) bars the institution of suits of matrimonial nature in the Ordinary Original Civil Jurisdiction of this Court. Reliance is placed on Section 4 of the Indian Divorce Act and Section 18 of the said Act. Section 4 is as follows: