1 2025:CGHC:3077 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 268 of 2020 1. Samiran Das S/o Late Kalachand Das, Aged About 45 Years Emp, Code C- 3780/ Hem Operator Grade-2 Mining N.M.D.C. Ltd. Bacheli Complex, Tahsil Bacheli, District- Dantewada, Chhattisgarh. R/o New Type-3, Triple Story, Near N.M.D.C. Gas Godown, Bacheli, Tahsil Bacheli, District- Dantewada, Chhattisgarh., District : Dantewada, Chhattisgarh 2. Smt. K. Venkttama Das W/o Samiram Das Aged About 35 Years R/o New Type-3, Triple Story, Near N.M.D.C. Gas Godown, Bacheli, Tahsil Bacheli, District- Dantewada, Chhattisgarh., District : Dantewada, Chhattisgarh ... Petitioner(s) versus Smt. Kavita Das W/o Samiran Das Aged About 43 Years R/o Occupation Teacher, D.A.V. School, R/o Purana Market Bacheli, Post - Bacheli, Tahsil - Bacheli, District- Dantewada, Chhattisgarh., District : Dantewada, Chhattisgarh ... Respondent(s) For Petitioners : Mr. Sandeep Patel, Advocate on behalf of Mr. Manoj Paranjpe, Advocate For Respondent : Mr. Shrawan Agrawal, Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 17/01/2025 1. By way of this petition, the petitioners have sought the following relief(s):- 1. That, this Hon’ble Court may kindly be pleased to quash the order dated 06.02.2020 passed by the Additional District Judge (FTC) South Bastar, 2 Dantewada passed in Civil Suit No. 2-A/2019 in the matter of “Smt. Kavita Das v. Samiran Das & others” and the application preferred by the petitioners mat kindly be allowed. 2. That, this Hon’ble Court may kindly be pleased to grant any other relief, which it deems fit and proper. 2. Learned counsel for the petitioners submits that the marriage between petitioner No. 1 and the respondent was solemnized on 06.05.2004 and it was dissolved by a decree of divorce vide judgment and decree dated 18.11.2016 by the learned Additional District Judge (FTC), Dantewada. Thereafter, petitioner No. 1 performed marriage with petitioner No. 2. He further submits that the respondent filed a suit to declare the marriage between the petitioners as void; the petitioners filed their reply and thereafter, an application under Order 40 Rule 2(b) of CPC was moved to decide the issue of bar to the suit created by law as a preliminary issue. He contends that a preliminary issue was proposed as to whether the petition filed by the respondent/plaintiff under Section 11 of the Hindu Marriage Act, 1955 is maintainable. He further contends that the learned Court below rejected the application vide order dated 06.02.2020. He referred to Section 11 of the Act, 1955 which deals with void marriages. He argues that such petition can be presented by any of the parties to the marriage only and as the marriage between petitioner No. 1 and the respondent was dissolved by a decree of divorce dated 18.11.2016, she had no right to file a petition seeking to declare the marriage between petitioners No. 1 and 2 as null and void. 3. On the other hand, learned counsel appearing on behalf of the 3 respondent submits that the respondent preferred an appeal against the decree of dissolution of marriage and the same is still pending. He further submits that Section 15 of the Act, 1955 deals with when divorced persons may marry again, therefore, the petition filed by the respondent was maintainable. 4. I have heard learned counsel for the parties and perused the documents placed on the record. 5. Section 11 of the Act, 1955 reads as under:- 11. Void Marriages.-- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. From a bare reading of this section, it is crystal clear that the petition to declare a marriage void can be filed by either of the parties to the marriage. In the present case, a petition under Section 11 of the Act, 1955 has been filed by the divorced wife. It is also not in dispute that the decree of divorce was passed on 18.11.2016 and thereafter the respondent has preferred an appeal before this Court challenging therein the decree passed against her with regard to dissolution of marriage. Learned court below has rejected the application moved by petitioners to decide the issue of bar to the suit created by law as a preliminary issue on the ground that the issue with regard to the cause of action is a mixed question of law and facts and it cannot be decided as a preliminary issue. 6. Taking into consideration the above-discussed facts and provisions of law, in the opinion of this Court, the learned court below committed an error of law in rejecting the application moved by the petitioners under 4 Order 14 Rule 2(b) of CPC, therefore, the order dated 06.02.2020 passed by the Additional District Judge (FTC) South Bastar, Dantewada in Civil Suit No. 2-A/2019 is hereby quashed and the learned Court below is directed to decide the issue with regard to the bar to the suit created by law as a preliminary issue. 7. Accordingly, the petition stands allowed. 8. All pending applications shall stand disposed of. Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya