# Smt. Varsha Sharma @ Suman v. Ajay Sharma & Anr

- **Citation:** (2025) 9 ILRA 283
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-04
- **Case number:** First Appeal No. 812 of 2022
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-varsha-sharma-suman-v-ajay-sharma-anr-53909
- **Pages:** 7

## Headnote

284 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for Consideration
Issue pertains to whether the trial court, having
held that it lacked jurisdiction to entertain the
plaintiff's suit seeking a declaration of her
matrimonial status as the second legal wife of
late Mukesh Sharma, erred in law in dismissing
the suit outright instead of returning the plaint
under O. 7 R. 10 of Code of Civil Procedure,
1908, for presentation before competent Family
Court as mandated u/s 7 of Family Courts Act,

## Text

9 All. Smt. Varsha Sharma @ Suman Vs. Ajay Sharma & Anr.
283

"14. After going through the
factual as well as legal aspect of the
matter, it is clear that case of the appellant
is
also
covered
with
the
aforesaid
judgements passed by various High
Courts. The proviso to Section 14 (1) of the
Act, 1955 is an exception to the necessity
for expiration of a period of one year since
the date of marriage to enable a party to
file a petition for divorce. Once an
application under Section 14 (1) of the Act,
1955 is filed before the court, certainly the
court has to see whether there is
exceptional hardship to the petitioner or
exceptional depravity on the part of the
respondent. In the present case, it is borne
out of the record that criminal cases have
been filed by the respondent and there is no
chance
that
marriage
will
subsist.
Therefore, the proviso to Section 14(1) of
the Act, 1955 is to be invoked, so that the
parties may get divorce and lead their
peaceful life. Both the parties have
mutually filed the divorce petition along
with an application under Section 14(1) of
the
Act,
1955,
therefore,
the
said
application is ought to be allowed."

(emphasis supplied)

5. We have no hesitation to say that
where the parties have agreed to jointly
petition for divorce by mutual consent
within a short while of the marriage, taken
place on 3rd March, 2025, neither party has
claimed exceptional depravity. We go
further to say that their conduct of being
able to agree with each other to jointly
petition for divorce by mutual consent
militates against any or both of them
alleging exceptional hardship. Intention of
the legislature is clear inasmuch as, the
marriage must be given a chance. Of all the
provisions in the Act for separation of the
parties, they are subject to section 14.
There can be cases of exceptional hardship
and depravity, where one spouse is trying
to
take
advantage
of
the
marriage
happened. Here, both parties have joined
and they have said in their joint petition,
they are living separately. On query Mr.
Gupta submits, the parties stand separated
from 21st March, 2025. It follows, they
stayed together for less than 20 days.

6. We see that in Angad Soni (supra)
coordinate
Bench
did
not
take
an
independent view but found the case
covered by judgements passed by various
High Courts. On facts and in the
circumstances of present case, we have
taken a view.

7. We do not find reason to interfere
with impugned judgement. It is confirmed.
The appeal is dismissed. We still hope
parties, in the time required before they can
file for divorce by mutual consent, will get
back together.

8. The appeal is disposed of.
----------
(2025) 9 ILRA 283
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 812 of 2022

Smt. Varsha Sharma @ Suman ...Appellant
Versus
Ajay Sharma & Anr. ...Respondents

Counsel for the Appellant:
Durga Prasad Tiwari, Sunil Kumar Shukla

Counsel for the Respondents:
Vidit Narayan Mishra
284 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for Consideration
Issue pertains to whether the trial court, having
held that it lacked jurisdiction to entertain the
plaintiff's suit seeking a declaration of her
matrimonial status as the second legal wife of
late Mukesh Sharma, erred in law in dismissing
the suit outright instead of returning the plaint
under O. 7 R. 10 of Code of Civil Procedure,
1908, for presentation before competent Family
Court as mandated u/s 7 of Family Courts Act,
1984.

Headnotes
Family Courts Act, 1984 - s. 7 - Code of
Civil Procedure, 1908 - O. 7 R. 10 -
Plaintiff - appellant, instituted Original
Suit No. 668 of 2015 before Court of
Additional Civil Judge (Senior Division),
Gautam Budh Nagar, seeking declaration
that she be recognized as second legally
wedded wife of late Mukesh Sharma, who
had earlier been married to one Rekha
Sharma and, after her demise, had allegedly
solemnized
marriage
with
plaintiff
on
12.03.2011 according to Hindu rites and
rituals - It was averred that couple lived
together until Mukesh Sharma's death on
21.03.2014,
leaving
behind
substantial
movable and immovable assets valued at
approximately Rs.30 crores, in which she
claimed a one-third share along with
defendants, his children from first marriage
- Defendants, however, denied the marital
relationship, asserting that plaintiff was
merely a maid employed in household and
had fabricated documents to usurp the
estate - Trial court, upon considering
pleadings and evidence, dismissed the suit
on 17.09.2022 holding that relief sought for
declaration of matrimonial status fell within
exclusive jurisdiction of Family Court u/s 7
of Family Courts Act, 1984 - Aggrieved
thereby, plaintiff preferred instant First
Appeal challenging the legality of dismissal
on the ground that trial court, having found
want of jurisdiction, ought to have returned
the plaint under O. 7 R. 10 CPC for
presentation
before
competent
Family
Court.

Held: It is apparent from the law laid down by
the Apex Court in Balram Yadav (infra) that
relief of declaration of validity of marriage or
matrimonial status of any person can only be
granted by Family court, as such, trial court
lacked jurisdiction to decide the suit and in view
of this, trial court has not committed any
illegality in coming to conclusion that it lacked
jurisdiction to decide the plaintiff's suit - The
law declared by Apex Court in EXL Careers &
Another (infra) makes it clear that where a
court lacks jurisdiction, the plaint must be
returned
under
O.
7
R.
10
CPC
for
presentation before competent court - In the
instant case, despite holding that it lacked
jurisdiction, trial court erroneously dismissed
the suit instead of returning the plaint - An
appellate or revisional court, upon setting
aside the decree, may also direct that the
plaint be returned for presentation before
court of competent jurisdiction - Thus, appeal
is partly allowed, trial court's judgment and
decree dated 17.09.2022, to the extent it
rejects the entire suit, is set aside - However,
the finding that suit is not maintainable for
want of jurisdiction is upheld. [Paras 18 to 21]
(E-13)

Case Law Cited
Balram Yadav v. Fulmaniya Yadav, (2016) 13
SCC 308; EXL Careers & Another v. Frankfinn
Aviation Services Private Limited, (2020) 12
SCC 667 ( By 3 Judges) - referred to

List of Acts
Family
Courts
Act,
1984;
Code
of
Civil
Procedure, 1908

List of Keywords
First Appeal u/s 96 C.P.C.; Second legal wife;
Matrimonial status; Maintainability of suit;
Family Court; Constituted under Family Courts
Act, 1984; Suit for declaration of matrimonial
status; Movable and immovable property; Joint
Bank Accounts; Lack of jurisdiction; Competent
court of jurisdiction; O. VII R. 10 C.P.C.; Return
of plaint; Presentation before competent court;
No illegality committed by trial court; Set aside
impugned judgment and decree; Partly allowed;
Finding upheld.

Case Arising From
APPELLATE JURISDICTION: First AppeaL No. -
812 of 2022
From
the
Judgment
and
Decree
dated
17.09.2022 passed by the Court of Additional
9 All. Smt. Varsha Sharma @ Suman Vs. Ajay Sharma & Anr.
285
Civil Judge (S.D.) Gautam Budh Nagar in O.S.
No.668 of 2015.

Appearances for Parties
Advs. for the Appellant:
Durga Prasad Tiwari, Sunil Kumar Shukla

Adv. for the Respondent:
Vidit Narayan Mishra

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant appeal under Section 96
C.P.C. has been filed by the plaintiffappellant Smt. Varsha Sharma @ Suman
against the judgment and decree dated
17.09.2022
passed
by
the
court
of
Additional Civil Judge (S.D.) Gautam
Budh Nagar in O.S. No.668 of 2015, Smt.
Varsha Sharma @ Suman Vs. Ajay Sharma
& others, whereby the plaintiff's suit for
declaration that she is the second legal wife
of late Mukesh Sharma, has been dismissed
by the trial court on the ground that the suit
is not maintainable because the plaintiff is
seeking declaration of her matrimonial
status, which can only be granted by a
Family court, constituted under the Family
Courts Act, 1984.

2. Brief factual matrix is that the
plaintiff-appellant filed a suit with the
averments that her husband Mukesh
Sharma was earlier married to a woman
named Rekha, and from that wedlock, the
defendants were born. Thereafter, Smt.
Rekha died, after which the plaintiffappellant and Mukesh Sharma willingly
solemnized marriage, according to Hindu
rites and rituals on 12.03.2011 and
thereafter, lived together. No child was
born from this wedlock. Unfortunately, her
husband Mukesh Sharma expired on
21.03.2014, leaving behind movable and
immovable property of approximately
Rs.30 crores in which, she and the
defendants had equal 1/3rd share. It is the
case of the plaintiff that in order to usurp
the property of her late husband, the
defendants has refused to accept her as the
legal wife of Mukesh Sharma. The plaintiff
further averred that during her lifetime,
Mukesh Sharma had acknowledged her to
be his legal wife and had accordingly,
opened joint bank accounts in different
banks, in which defendant No.1 Ajay
Sharma was also made nominee.

3. It was further submitted that in
Aadhaar card and other documents, she was
shown to be the legally wedded wife of
Mukesh Sharma. The plaintiff submitted
that since, the heirs of late Mukesh Sharma
have refused to accept her as the legally
wedded wife of the deceased, as such, there
is no other alternative, but to seek
declaration from this Court regarding her
matrimonial
status.
With
these
submissions, it was prayed that:-

(i) By a decree of declaration
granted in favour of the plaintiff, against
the defendants, she be declared the second
legal wife of late Mukesh Sharma;

(ii) The cost of the suit be also
awarded to the plaintiff against the
defendants;

(iii) Any other relief, which the
Court, deems fit and appropriate may also
be granted to the plaintiff, against the
defendants.

4. The defendant No.1 Ajay Sharma
filed his written statement in the trial court,
in which he denied the plaint allegations
and submitted that the plaintiff is a
fraudulent woman, who worked as a maid
in his house situated in Baraula, for which
she was paid salary. The plaintiff has not
286 INDIAN LAW REPORTS ALLAHABAD SERIES
filed any documents to prove that she is the
legally wedded wife of late Mukesh
Sharma. The plaintiff wants to usurp the
movable and immovable property of the
deceased, who is not the legally wedded
wife of his father. It was further averred
that he has lodged several criminal cases
against the plaintiff. The plaintiff has
forged and fabricated several documents.
The plaintiff never remained the legally
wedded wife of his father. With these
submissions, it was prayed that the suit be
dismissed with special cost.

5. On the basis of the pleadings of the
parties, the trial court framed the following
issues:-

(i) Whether the plaintiff is the
legal wife of late Mukesh Sharma, after the
death of his first wife Rekha Sharma?

(ii) Whether the suit is not
maintainable?

(iii)
Whether
the
suit
is
undervalued?

(iv) Whether the court fees paid is
insufficient?

(v) Whether the plaintiff is
entitled to get any other relief?

6. In the trial court, the plaintiff
examined Varsha Sharma as PW-1 and
Pramod
Kumar
as
PW-2
and
the
defendant
No.1
Ajay
Sharma
was
examined as DW-1 and Om Prakash as
DW-2. Besides the above oral evidence,
documentary evidence in the form of
photo copies of PAN card, Family
register, passport of late Mukesh Sharma,
certificate issued by Gram Pradhan, bank
account statements, photo copy of voter
list, photo copy of FIR in criminal cases,
photo copy of insurance policies, etc.
were submitted before the trial court.

7. During trial, defendant No.2
Ankita Sharma died on 01.10.2015.

8. The trial court while disposing the
issue no.1 & 2 concluded that since the
plaintiff has asserted that she is the legal
wife of late Mukesh Sharma, as such, a
declaration is required regarding her
matrimonial status, which can only be
granted by the Family court. The trial
court came to the conclusion that only the
Family court is competent to grant the
desired relief to the plaintiff.

9. In view of this, issue no.2
regarding the maintainability of the suit
was decided against the plaintiff, in
favour of the defendants. The trial court
came to the conclusion that the plaintiff
cannot be granted any relief by this court
and as such, the plaintiff's suit was
dismissed, aggrieved against which, the
plaintiff-appellant has filed the instant
appeal.

10. Learned counsel for the appellant
submitted that the trial court has legally
erred by dismissing the suit on the issue of
lack of jurisdiction. Learned counsel for the
appellant further submitted that if, the trial
court was of the opinion that the suit is not
legally maintainable, then simply, the plaint
should have been returned to the plaintiff,
for presentation to the competent court of
jurisdiction under Order 7 Rule 10 CPC.
He further submitted that the trial court
could not have examined the merits of the
case. With these submissions, it was prayed
that the impugned judgment and decree of
the trial court be set aside, and the trial
court be ordered to return the plaint to the
9 All. Smt. Varsha Sharma @ Suman Vs. Ajay Sharma & Anr.
287
plaintiff, for presentation to the competent
court of jurisdiction.

11. Per contra, learned counsel for the
respondent submitted that the trial court has
not committed any legal error in dismissing
the
suit
because
the
declaration
of
matrimonial status can only be granted by
the Family court, constituted under the
Family Courts Act, 1984. With these
submissions, it was prayed that the appeal
is meritless and is liable to be dismissed.

12. I have heard learned counsel for
the parties and perused the record.

13. It is apparent that the plaintiff is
claiming herself to be the second legal wife
of late Mukesh Sharma. It is the plaintiff's
case that after the death of Mukesh
Sharmaâ€TMs first wife Rekha Sharma, she
had solemnized marriage on 12.03.2011
with Mukesh Sharma according to Hindu
rites and rituals and thereafter, they lived
together. The plaintiff submitted that the
legal heirs of late Mukesh Sharma are not
accepting her as the legally wedded wife of
late Mukesh Sharma, as such, the plaintiff
has sought declaration from the court that
she be declared the second legal wife of
late Mukesh Sharma.

14. Section 7 of the Family Courts
Act, 1984 reads as under:-

"7.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;

(c) a suit or proceeding between
the parties to a marriage with respect to
the property of the parties or of either of
them;

(d) a suit or proceeding for an
order or injunction in circumstance arising
out of a marital relationship;

(e) a suit or proceeding for a
declaration as to the legitimacy of any
person;

(f) a suit or proceeding for
maintenance;

(g) a suit or proceeding in
relation to the guardianship of the
person or the custody of, or access to,
any minor.
288 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Subject to the other provisions
of this Act, a Family Court shall also have
and exercise-

(a) the jurisdiction exercisable by
a Magistrate of the First Class under
Chapter
IX
(relating
to
order
for
maintenance of wife, children and parents)
of the Code of Criminal Procedure, 1973 (2
of 1974); and

(b) such other jurisdiction as may
be conferred on it by any other enactment."

15. The Apex Court in the case of
Balram Yadav vs. Fulmaniya Yadav
(2016) 13 SCC 308, while discussing the
jurisdiction of the Family courts, held as
under:-

"7.
Under
Section
7(1)
Explanation (b), a suit or a proceeding for
a declaration as to the validity of both
marriage and matrimonial status of a
person is within the exclusive jurisdiction
of the Family Court, since under Section 8,
all those jurisdictions covered under
Section 7 are excluded from the purview of
the jurisdiction of the civil courts. In case,
there is a dispute on the matrimonial status
of any person, a declaration in that regard
has to be sought only before the Family
Court. It makes no difference as to whether
it is an affirmative relief or a negative
relief. What is important is the declaration
regarding the matrimonial status. Section
20 also endorses the view which we have
taken, since the Family Courts Act, 1984,
has an overriding effect on other laws."

16. Order 7 Rule 10 C.P.C., reads as
follows:-

"10. Return of plaint- (1) Subject
to the provisions of rule 10A, the plaint
shall at any stage of the suit be returned to
be presented to the Court in which the suit
should have been instituted.

Explanation- For the removal of
doubts, it is hereby declared that a Court of
appeal or revision may direct, after setting
aside the decree passed in a suit, the return
of the plaint under this sub-rule.

(2)
Procedure
on
returning
plaint- On returning a plaint, the Judge
shall endorse thereon the date of its
presentation and return, the name of the
party presenting it, and a brief statement of
the reasons for returning it."

17. The Apex Court in the case of
EXL Careers & Another vs. Frankfinn
Aviation Services Private Limited, (2020)
12 SCC 667 ( By 3 Judges) held as under:-

"15.Modern Construction [ONGC v.
Modern Construction & Co., (2014) 1 SCC
648], referred to the consistent position in law by
reference to Ramdutt Ramkissen Dass v. E.D.
Sassoon & Co.[ 1929 SCC OnLine PC 3 :
(1928-29) 56 IA 128 : AIR 1929 PC 103] , Amar
Chand Inani v. Union of India (1973)1SCC115,
Hanamanthappa
v.
Chandrashekharappa
(1997) 9 SCC 688, Harshad Chimanlal Modi
[Harshad Chimanlal Modi (2) v. DLF Universal
Ltd., (2006) 1 SCC 364] and after also noticing
Joginder Tuli [Joginder Tuli v. S.L. Bhatia,
(1997) 1 SCC 502], arrived at the conclusion as
follows: (Modern Construction case , SCC p.
654, para 17).

"17. Thus, in view of the above,
the law on the issue can be summarised to
the effect that if the court where the suit is
instituted, is of the view that it has no
jurisdiction, the plaint is to be returned in
view of the provisions of Order 7 Rule 10 CPC
and the plaintiff can present it before the court
9 All. Mayank Ojha (Minor) Thru Here Natural Guardian Mother Shashi Vs. State of U.P. & Ors. 289
having competent jurisdiction. In such a factual
matrix, the plaintiff is entitled to exclude the
period during which he prosecuted the case
before the court having no jurisdiction in view
of the provisions of Section 14 of the Limitation
Act, and may also seek adjustment of court fee
paid in that court. However, after presentation
before the court of competent jurisdiction, the
plaint is to be considered as a fresh plaint and
the trial is to be conducted de novo even if it
stood concluded before the court having no
competence to try the same"

"Joginder Tuli [Joginder Tuli v. S.L.
Bhatia, (1997) 1 SCC 502] was also noticed in
Harshad Chimanlal Modi (2) [Harshad
Chimanlal Modi (2) v. DLF Universal Ltd.,
(2006) 1 SCC 364] but distinguished on its own
facts."

18. It is apparent from the law laid down
by the Apex Court in Balram Yadav(supra)
that the relief of declaration of validity of
marriage or the matrimonial status of any
person can only be granted by the Family court,
as such, the trial court lacked jurisdiction to
decide the suit and in view of this, the trial court
has not committed any illegality in coming to
the conclusion that it lacked jurisdiction to
decide the plaintiff's suit.

19. It is also apparent from the law laid
down by the Apex Court in EXL Careers &
Another(supra) that where the court lacked
jurisdiction, then plaint has to be returned in
view of the provisions of Order 7 Rule 10 CPC,
to enable the plaintiff to present it before the
court having competent jurisdiction. In the
instant case, after concluding that it lacked
jurisdiction, the trial court has erred in
dismissing the suit and, in not returning the
plaint to the plaintiff, for presentation to the
competent court of jurisdiction, and this
illegality committed by the trial court, needs to
be rectified in this appeal.

20. It is also apparent that the court of
appeal or revision may also direct, after setting
aside the decree passed in a suit, the return of
the plaint for presenting it before the court of
competent jurisdiction.

21. Accordingly, the appeal is
partly
allowed.
The
impugned
judgment and decree of the trial court
dated 17.09.2022, in so far, as the
rejection of the whole suit is concerned,
is set aside. The finding of the trial
court that the suit is not maintainable
for lack of jurisdiction, is upheld.

22. The trial court is directed to return the
original plaint to the plaintiff in accordance with
the provisions of Order 7 Rule 10 CPC, for
presentation before the court of competent
jurisdiction.

23.
However,
in
the
facts
and
circumstances of the case, there shall be no
order as to costs.

24. Office is directed to prepare the decree
accordingly.

25. Office is also directed to send back the
original trial court record.
----------
(2025) 9 ILRA 289
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.09.2025

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Habeas Corpus Writ Petition No. 308 of 2025

Mayank Ojha (Minor) Thru Here Natural
Guardian Mother Shashi ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents