G.C. Mathur, J. - (1.) RESPONDENT Smt. Lakshmi Devi filed a suit on 20 -5 -196 in the court of Munsif Khalilabad at Basti, against the Appellants. The Plaintiff is the wife of Appellant No. 1 Dr. Jokhan Pd. Shukla. The relief which she asked for in the plaint was for a permanent injunction restraining her husband Appellant No. 1, and Ram Daur Appellant No. 2 from performing the marriage of Appellant No. 1 with Appellant No. 3 Km. Kusum. On the application of the Plaintiff the Munsif granted an interim injunction restraining the performance of the marriage but in spite of this injunction the marriage was performed between Appellant No. 1 and Appellant No. 3 on 23 -5 -1969. Thereupon, the Plaintiff amended her plaint and in place of the relief of permanent injunction sought the relief of declaration of the marriage between Appellant No. 1 and Appellant No. 3 as void. The trial court framed the following issues: (1) Whether the Defendant No. 1 has remarried Defendant No. 3 during the continuance of his valid marriage with the Plaintiff? If so its effect? (2) Whether the suit is not maintainable? (3) Whether the court -fee paid is not sufficient? (4) To what relief, if any, is the Plaintiff entitled?
(2.) THE trial court held on issue No. 1 that the Defendant No. 1 had married Defendant No. 3 on 23 -5 -1969 and that the marriage was void in view of the provisions of Section 5(1) of the Hindu Marriage Act. On issue No. 2 the trial Court held that the suit did not lie in the court of the Munsif. It was of opinion that the declaration sought was a declaration Under Section 11 of the Hindu Marriage Act and that a suit for such a declaration, on account of the provisions of Section 19 of the Act lay in the court of the Distt. Judge. The trial court accordingly dismissed the suit. Against the decree of the trial court the Plaintiff preferred an appeal. The Civil and Sessions Judge allowed the appeal, set aside the decree of the Munsif and decreed the Plaintiffs suit. He concurred with the findings of the Munsif that the marriage between Defendants 1 and 3 was performed on 23 -5 -1969 and that the marriage was void. He further held that the suit was cognizable by the Munsif and that the Munsif had jurisdiction to try the same. Against the decree of the lower appellate court this Second Appeal has been filed. The concurrent finding of fact of the courts below that the marriage between Defendant No. 1 and Defendant No. 3 was performed on 23 -5 -1969 is a pure finding of fact which is not vitiated by any error of law. This finding is binding in Second Appeal. The only question which arises for consideration is whether the suit was maintainable in the court of Munsif or not. Section 19 of the Hindu Marriage Act provides: Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together. This section makes it clear that all petitions under the Act lie in the district court. 'Distt. court' is defined in Section 3(b) thus: 3. (b) 'Distt. court' means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Govt. by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act. Admittedly the court of the Munsif is not a "distt. court" as defined in Section 3(b). Therefore, if the present suit is a petition under any of the provisions of this Act then it could only be filed in the district court and not in the court of the Munsif.
(3.) IT is urged by learned Counsel for the Appellants that the suit was competent Under Section 11 of the Act. Section 11 provides: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, 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. A plain reading of this section shows that a petition for declaring a marriage solemnized after the commencement of this Act to be null and void, can be filed by "either party thereto". The expression "either party thereto" clearly means either party to the marriage sought to be declared null and void. A petition Under Section 11 is maintainable only at the instance of one of the parties to the marriage which is sought to be declared null and void. A petition by a person who is not a party to the marriage sought to be declared null and void, will not lie Under Section 11. The second marriage was between Dr. Jokhan Pd. Shukla Defendant No. 1 and Km. Kusum Defendant No. 3. The Plaintiff Smt. Lakshmi Devi, who was admittedly the first wife of Defendant No. 1 was not a party to the second marriage. She could not have, therefore, filed a petition Under Section 11 of the Act. The suit filed by her for declaration of the marriage between Defendants 1 and 3 to be null and void, is not covered by the provisions of Section 11 of the Act and cannot be treated as a petition under that provision. That being so, the ordinary remedy of the Plaintiff under the civil law of filing a suit for declaration of the second marriage as null and void, cannot be held to be barred by Section 19 of the Act, which prescribes a special forum for petitions under the Act. In Lakshmiammal v. Ramaswami Naicker , AIR I960 Mad. 6 a learned single Judge of the Madras High Court has taken the same view. It has been held in this case that the first wife cannot apply Under Section 11 for declaring the marriage of the second wife as void and that the first wife can file a suit under the ordinary law for a declaration that the marriage of her husband with the second wife is illegal and void under the Hindu Marriage Act. The Civil and Sessions Judge has rightly held that the Munsif had jurisdiction to entertain the suit.;