BINAPANI HATUI Vs. ASOK KUMAR HATUI

JUDGEMENT

(1.) This revisional application is heard as a contested application. The learned counsel for the plaintiff opposite party has entered Appearance and has contested the application by filing affidavit-in-opposition.

(2.) The revisional application is directed against Order No. 18, dated 14-9-87 passed by the learned Assistant District Judge, Third Court, Howrah in Title Suit No. 67 of 1987. By the impugned order the learned Assistant District Judge has allowed an application for injunction under Or. 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure made by the plaintiff opposite party for restraining the petitioner, who is defendant No. 1 in the said Title Suit, from proceeding further with the Misc. Case pending in the Court of the learned Sub-divisional Judicial Magistrate, Serampur for maintenance of the defendant and her minor child, the petitioner No. 2 in this revisional application.

(3.) It appears from the plaint of the said suit that the plaintiff opposite party filed a suit for declaration that the marriage solemnized between the plaintiff opposite party and the defendant petitioner Sm. Binapani Hatui under the Hindu Marriage Act was null and void because the said defendant petitioner was pregnant by some other person at the time of the marriage. It appears to us that any marriage solemnized after the commencement of the Hindu Marriage Act is not null and void on the ground that the wife was at the time of marriage pregnant by some other person but such marriage shall be voidable and it may be annulled by a decree of nullity under Section 12 of the Hindu Marriage Act. The learned Counsel for the defendant-petitioner is justified in his contention that for annulling a marriage on such ground, an application is to be made under the provisions of the Hindu Marriage Act before the appropriate forum and a declaratory suit cannot be instituted. In any event, no declaration can be made in the suit that such marriage was null and void from the beginning. He has, therefore, rightly contended that the application for injunction should not have been entertained m a suit which on the face of it appears to be misconceived.