IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.36/2023 Date of Decision: 03rd July 2025. Urmila Devi .....Appellant. Versus Babu Ram …..Respondent. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant : Mr. Romesh Verma, Sr. Advocate, with Mr. Digvijay Singh Bisht and Mr. Sumit Sharma, Advocate. For the Respondent : Mr. Munish Kumar and Mr. Yuyutsu Thakur, Advocates. Bipin Chander Negi, Judge (oral). The present petitioner i.e. plaintiff before the trial Court is aggrieved by the judgment dated 7.6.2023, whereby plaint filed by the present petitioner seeking a declaration to the effect that the petitioner’s marriage with the respondent is null and void with a consequential prayer that the defendant be restrained by way of a decree for permanent prohibitory injunction from claiming to be his wife or to enter in the house of the petitioner has been rejected at the preliminary stage. The reason for the rejection being that there exists a specific remedy under Section 12 of the Hindu Marriage Act 1955 for annulling the marriage by procuring a decree of nullity under the said provision. 2. In other words, it has been held that the petitioner is not entitled to file a civil suit for declaration as has been done in the case at hand. The suit filed has been held to be not maintainable. 3. Heard counsel for the parties. Perused the impugned order. 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 4. Marriage inter se the parties was solemnized on 22.1.2012. The same, it has been averred in the plaint had been solemnized as per the Hindu Rites and Customs. Two children were born out of the wedlock. It is averred in the plaint that on 15.2.2022, when the petitioner procured a copy of the Parivar Register and her marriage registration certificate from the Gram Panchayat of the respondent, it transpired that the respondent is a Muslim by religion. 5. In the aforesaid facts and attending circumstances, it is averred in the plaint that since the respondent is a Muslim and is governed by Muslim law, hence, the marriage inter se the parties is no marriage in the eyes of law as per Section 5 of the Hindu Marriage Act 1955. Therefore, a prayer has been made to declare the marriage inter se the parties null and void. 6. Both the counsels contend that the suit filed by the present petitioner is to be tried by Civil Court, however, the respondent submits that the same should be tried by the Civil Court in the first instance (Civil Judge). 7. Per contra, learned counsel for the petitioner contends that being a Civil Court, the Additional District Judge for whom the suit was filed was competent to hear the case at hand. 8. At the preliminary stage the Court is not called upon to record a finding about truth or otherwise of the allegations made in the plaint. The only question relevant for consideration at such a stage is whether on the basis of the averments made in the plaint and the prayers contained therein, the suit is a suit for annulment of marriage within the meaning of the Hindu Marriage Act or for a declaration under the Specific Relief Act. 3 9. In the instant case although the petitioner inter alia prayed for a declaration that the marriage between the parties was void, the same will not make the plaint ipso facto a petition under the Hindu Marriage Act within the meaning of Section 19 of the said Act. Under Sections 11 and 12 of the Hindu Marriage Act, the circumstances under which a petition can be filed for annulment of marriage on the ground that the same is void are clearly specified. But in the instant case, such declaration that the marriage is void has not been asked for by the plaintiff on any of such grounds on which such an annulment can be obtained under Section 12 or even under Section 11 of the said Act. From the aforementioned, it is evident that the plaint filed in the case at hand is not a petition under the Hindu Marriage Act and/or Special Marriage Act. On the face of the plaint, it really appears to be a suit for declaration as to the status of the parties. 10. Sections 7 and 8 of the Family Courts Act, 1984 which read as follows: "7. Jurisdiction (1) Subject to the other provisions of this Act, a Family Court shall- (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) * * Explanation. The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely- (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; 4 * * * 8. Exclusion of jurisdiction and pending proceedings. Where a Family Court has been established for any area- (a) no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section; 11. It is obvious that a suit or proceeding between parties to a marriage for a decree of nullity or restitution of conjugal rights or judicial separation or dissolution of marriage, all have reference to suits or petitions that are filed under the Hindu Marriage Act and/or Special Marriage Act for the aforesaid reliefs. Section 8(a) of the Family Courts Act excludes the civil court's jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial separation. 12. The Family Court Act excludes the Civil Court’s jurisdiction in a suit filed under the Hindu Marriage Act and/or Special Marriage Act, where suit is to annul or dissolve a marriage or is for Restitution of Conjugal Rights or Judicial separation. Jurisdiction of Civil Court under Section 34 of the Special Relief Act for declaration as to the legal character of an alleged marriage is not barred (See 2017 9 SCC 591 titled as Samar 5 Kumar Roy (dead) through Legal representative (Mother) vs. Jharna Bera). 13 . In view of the aforesaid, present petition is allowed. Impugned judgment dated 7.6.2023 is quashed and the civil suit filed by the plaintiff is held to be maintainable, however, the same is to be filed before the Civil Court of first instance (Civil Judge). Appeal stands disposed of in the aforesaid terms, so also the pending miscellaneous applications, if any. (Bipin Chander Negi) Judge 3rd July 2025 (Tarun)