A.S. Bopanna, J.The appellants are before this Court assailing the judgment and decree dated 9.12.2010 passed in R.A. No. 13/2010.

2. The lower appellate Court by the said judgment has allowed the appeal and set aside the judgment and decree dated 6.1.2000 passed in O.S. No. 41/2009, thereby decreeing the suit as prayed. By the said decree, marriage amongst the appellants dated 18.11.2008 is declared as void and not in accordance with law.

3. The first appellant herein was defendant No. 1, while the second appellant was defendant No. 5 to the suit. The plaintiff i.e., the first respondent herein is the mother of the second appellant. The position is also that the first appellant is the son of the sister of the first respondent. It is in that view, the plaintiff had contended in the suit that the marriage dated 18.12.2008 performed amongst the first and second appellants is void, as the marriage is performed between the persons who are within the prohibited degrees of relationship. The trial Court, after taking note of the entire conspectus of the matter, has arrived at the conclusion that the declaration thereof cannot be granted at the instance of the plaintiff and therefore, dismissed the suit. The lower appellate Court, has however, taken a divergent view on that aspect and on considering that the plaintiff is none other than the mother of the 5th defendant, has considered her to be the interested person to seek such declaration and has therefore allowed the appeal and decreed the suit.

4. While taking note of the contentions, this Court at the first instance, had framed the following substantial questions of law on 24.5.2011 and had admitted the appeal:

(i) Whether the first appellate Court is correct in law in applying the provisions of Hindu Marriage Act, 1955 when the appellants are Schedule Tribes as specified in Clause 25 of Article 366 of the Constitution of India

(ii) Whether the first appellate Court committed an illegality in not considering the custom and practice prevailing in Schedule Tribe community of the appellants permitting a marriage under a prohibitory decree

However, having taken note of the contentions that were put forth before the Courts below and the divergent opinions expressed by the Courts below with regard to the maintainability of the suit at the instance of the plaintiff, the following substantial question of law would have to be considered at the outset and only thereafter if it is held that the suit is maintainable, the questions as framed earlier would arise for consideration. The primary substantial question of law would therefore be the following:

"Whether the declaration as sought by the plaintiff could be granted in a suit, wherein the plaintiff is not one of the parties to the marriage and does not satisfy the requirement of Section 11 of the Hindu Marriage Act, 1955"

5. While considering the substantial question of law that has been framed presently, it would have to be noticed that the relationship between the parties is not seriously in dispute in the suit. Therefore, in such circumstance, even if the marriage performed between the first and fifth defendants on 18.12.2008 being related is kept in view, when one of them had not subsequently filed a petition seeking declaration of such marriage as void, could the plaintiff have filed a suit seeking declaration of their marriage as void, which would seriously affect not only their status as husband and wife, but would also tell upon the status of the offspring of such marriage. While considering the question as to whether the declaration as sought by the plaintiff is to be granted, the trial Court while answering issues 3 and 4 framed in the suit has adverted in detail to this aspect of the matter. The provision as contained in Section 5 of the Hindu Marriage Act has been referred to in detail and in that light has taken note of the provision contained in Section 11 of the Hindu Marriage Act. Though the plaintiff had relied on the decision reported in Smt. Ram Pyari Vs. Dharam Das and Others, , the trial Court had distinguished the same and had arrived at a conclusion that the decree sought at the instance of the plaintiff is to be refused and accordingly, the suit was dismissed. The lower appellate Court while considering the correctness or otherwise of the findings rendered by the trial Court on issues 3 and 4 has in fact arrived at the conclusion that the manner in which the judgment as cited was distinguished by the trial Court was not justified and in that light referring to the decision in the case of Smt. Ganga Bai Vs. Vijay Kumar and Others, , has reversed the finding of the Court below.

6. At the outset, the decision as relied upon by the lower appellate Court could not have been made applicable to the instant facts of the case. The decision of the Honble Supreme Court therein is with regard to the inherent right in every person to bring a suit of civil nature, which was considered in the facts that were arising therein, when the right relating to the immovable property and the mortgage created therein was in issue. In the instant facts though by Section 5 the marriages that would be considered as void has been provided for, vide Section 11 of the Act, the manner in which the declaration of such marriages to be void and the persons who may seek for such declaration has been explicitly indicated. It would be appropriate to extract Section 11 of the Hindu Marriage Act for better appreciation:

11. Void marriages - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto (against the other party), 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 perusal of the provision extracted above would indicate that a declaration of a marriage as null and void is to be made on a petition presented by either party thereof against the other party. In the instant case, the parties to the marriage namely the first and fifth defendants had not sought for such declaration, but on the other hand, they have jointly filed the instant appeal seeking that the judgment passed by the lower appellate Court be set aside. Therefore, in the instant case, the suit as instituted by the plaintiff, though she is the mother of the fifth defendant, it does not qualify to be a petition as provided under Section 11 of the Hindu Marriage Act and as such, the suit seeking declaration of marriage amongst the first and fifth defendants as void cannot be granted at the instance of the plaintiff herein. In that view, the additional question of law raised is answered in favour of the appellants. The judgment and decree dated 9.12.2010 passed in R.A. No. 13/2010 is set aside. The judgment dated 6.1.2000 passed in O.S. No. 41/2009 is restored. In view of the above conclusion, the questions of law raised on 24.5.2011 is not necessary to be answered.

7. In terms of the above, appeal is allowed. Parties to bear their own costs.