- (1.) JUDGEMENT This is a plaintiffs second appeal from the order of the District Judge, Moradabad, dated 16th Oct. 1962, confirming the dismissal of her suit.
(2.) SMT . Krishneshwari Varshney had filed the suit giving rise to this appeal and claimed the following reliefs : (A) It be declared that the plaintiff is the lawfully wedded wife of defendant No. 1. (B) The defendant No. 1 be permanently restrained from contracting any subsequent marriage during the subsistence of the plaintiffs marriage and other defendants be restrained from bringing about and participating in the second contemplated marriage of defendant No. 1 with defendant No. 5. (C) That the defendant No. 1 be ordered to perform conjugal and marital rights as a husband of the plaintiff and in case of refusal a decree for restitution of conjugal rights be passed against him. (D) That the costs of the suit be taxed against the defendants. (E) That any other relief, which may be beneficial to the plaintiff over and above the reliefs claimed as deemed just and equitable be granted. The suit was valued at Rs. 5,000/- for declaration of relief A at Rs. 250/- regarding permanent injunction and Rs. 250/- for the relief of restitution or conjugal rights. The suit was filed in the Court of the Civil Judge, Moradabad. The contesting defendant-respondent by paragraph 10 of his written statement challenged the jurisdiction of the Civil Judge and averred that the suit being one for restitution conjugal rights ought to have been filed before the District Judge under the Hindu Marriage Act, (25 of 1955) (hereinafter referred to as the Act), issues were struck, but neither the plaintiff nor the defendant pressed for an issue on the question of the jurisdiction of the civil Court to try this suit. Both parties led evidence and after a protracted trial the Civil Judge dismissed the plaintiffs son holding that there was a love affair between the plaintiff and the defendant No. 1 but the factum of marriage had not been satisfactorily proved.
(3.) ON appeal therefrom, the District Judge confirmed the finding of the Civil Judge, and as such the finding that no marriage had taken place was clearly one of fact and binding on this Court in second appeal.;