• LAWGIC STRATUM

Daughter has every locus to question the validity of her Father’s Second Marriage

Author: Sushna Santra



Prologue:


The Bombay High Court in its latest judgement put aside Family Court order and directed to listen and judge a case filed by daughter of an industrialist who questioned the validity of her father's second marriage.The court commanded that the daughter haslocus to question the validity of her father's second marriage.


A bench of justice R.D. Dhanukha and V.G. Bishta forementioned that the Family Court was wrong when deciding that the daughter was barred from questioning her father's marriage. The bench interpreted clause (b) to explanation of section 7 of Family Court Act, 1984.[1]It was stated,"Having regard to the Objects and Reasons of the Act vis-a-vis literal construction of Clause (b) under Explanation, in our thought of read, the appellant has each locus to usher in question the validity of marriage of her father with the respondent and as also respondent's status."


Agreeing with senior counsel Vineet Naik and Adv. Sherry Bodhanawalla the bench pronounced that solely family court has the jurisdiction to decide on validity of marriage and hence the rule barring multiplicity of suit was not applicable.


Story Line:


The daughter alleged that it had been in 2016 that she came to knowthat the second wife was already married and not divorced from her first husband, which she allegedly suppressed. Thedefendant on the other hand, opposed such allegations and claimed that she was divorced in 1984 through talaqnama and hence her marriage with the second husband was valid.


The daughter filed an appeal in 2019 in High Courtagainst Family Court's rejection of her plea to declare the marriage invalid. The defendant counsel Deepti Panda with K.Chandrarana vehemently argued that no third party has right to question validity of a marriage.


The Family Court had rejected the petition stating that the appellant had filed suits against the respondent before the High Court in earlier instances. Applying Order II Rule 2 of Code of Civil Procedure the Family Court opined that the appellant had relinquished her right to claim the relief of nullity of marriage as against the respondent when she filed her suits in the High Court. Therefore, she could not claim the relief before the Family Court, it had been dominated. [2]


Appellant’s Contention:


The appellant asserted that the divorce documents served by the respondent were uncertain. She in addition contended that the respondent took undue advantage of her father's mental ailments and married him and then unduly influenced him with the motive of siphoning his properties.


Respondent’s Contention:


Opposing the petition and grounds of appeal the respondent asserted that the appellant did not possess the right (locus standi)[3] to question the father's second marriage. It was conjointly aforesaid that the petitioner did not file the case in 2015 when her father died therefore has not filed the case within the prescribed time under the Limitation Act, 1963.


Epilogue:


After analysis of section 7 the court took specific notice to clause (a) and (b) wherever it is mentioned The suits and proceedings observed in this sub-section are suits and proceedings of the subsequent 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 orbecause the case could also be, annulling the marriage) or restitution of conjugal rights or legal separation or dissolution of marriage.


b) a suit or proceeding for a declaration on the validity of a marriage or as to the matrimonial status of any person;

The Court remarked that clause (b) is "widely couched" and said the daughter has the locus to move the petition.


The High Court mentioned that since the daughter asserted that she learnt about the second wife's fraudulent conduct in February 2016 and she filed the case in 2019 there was no delay in filing the petition. After all such observations, the High Court directed the Family Court to decide her plea within six months.


References:

[1] 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) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.


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; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; [2] Order II of Code of Civil Procedure 1908 "Suit to include the whole claim “Rule 2: Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

[3]The right or capacity to bring an action or to appear in a court.

[4] Daughter can question validity of dad’s 2nd marriage-Bombay HC, TIMES OF INDIA (Updated March 19, 2021) https://timesofindia.indiatimes.com/city/mumbai/hc-daughter-can-question-validity-of-dads-2nd-marriage-in-mumbai/articleshow/81577333.cms

[5] Varsha, Daughter can question validity of Father’s second marriage-Bombay HC, B&B ASSOCIATES LLP, (March 19, 2021) https://bnblegal.com/news/daughter-can-question-validity-of-fathers-second-marriage-bombay-high-court/


Edited by Gemma Maria Suzzana. A, Associate editor, Lawgic Stratum.


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