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Report No. 59

2.6. Remedy available to third parties.-

This does not mean that third parties have no remedy at all. They have-but not by a petition under the Hindu Marriage Act.

The Specific Relief Act1, in section 34, provides as follows:

"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:

"Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."

Explanation.-A trustee of property is a 'person interested to deny' a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."

Under section 35 of the Act, the declaration is binding only on the parties etc2.

Banerji in his Tagore Law Lectures on the Law of Specific Relief, observed3:-

"The Indian enactment, in one respect at any rate, has a more extended scope, for it contemplates the settlement, not only of conflicting claims to property but also of disputes as to status."

Holland,4-5 in his 'Elements of Jurisprudence', explaining the meaning of "status" says:-

"The chief varieties of status among natural persons may be referred to the following causes:

(1) Sex, (2) minority, (3) 'patria potestas' and 'manus', (4) coverture, (5) celibacy, (6) mental defect, (7) bodily defect, (8) rank, caste and official position, (9) race and colour, (10) slavery, (11) profession, (12) Civil death, (13) illegitimacy, (14) heresy, (15) foreign nationality and (16) hostile nationality. All of the facts included in this list, which may be extended, have been held, at one time or another, to differentiate the legal position of persons affected by them from that of persons of the normal type."

There can, therefore, be no objection if a third party claiming an interest in the property, sues for a declaration that B was not the lawfully wedded of A. In an English case6, it was specifically held that a declaration may be granted that a marriage has been dissolved. The grant of similar relief was held to be competent in a Calcutta case7.

1. Section 34, Specific Relief Act, 1963.

2. Section 35, Specific Relief Act, 1963.

3. Banerji Law of Specific Relief in British India, (T.L.L. 1906), p. 490, cited in Abdul Karim v. Sarraya Begam, AIR 1945 Lah 266 (270).

4. Holland Elements of Jurisprudence, p. 351, cited in Abdul Karim v. Sarraya Begam, AIR 1945 Lah 266 (270).

5. See also Ramakrishana v. Narayan, AIR 1915 Mad 584.

6. Har Shafei v. Har Shafei, 1953 All ER 783

7. Noor Jehan v. Eugene Tischenko, AIR 1942 Cal 345.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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