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Patna High Court · body

1993 DIGILAW 212 (PAT)

Paneham Lal v. Tejeshwari Lal

1993-05-06

S.N.JHA

body1993
ORDER The husband - petitioner filed suit for dissolution of marriage which was decreed on 5.9.91. The wife - opposite party filed an application' under Order 9 Rule 13 of the Code of Civil Procedure the Code' in short) before the District Judge, Patna, on 5.10.91. In course of time, the miscellaneous case came on the file of Additional Dist riel judge XI, Patna, on transfer. In the meantime, the Family Court having been established with respect to the area in question under the Family Courts Act, 1984 ('the Act' in short) an order of transfer of the miscellaneous case to the Family Court was passed by the Additional District Judge on 7.11.92. The Family Court, accordingly, has issued notice to the petitioner. 2. The petitioner has challenged the jurisdiction of the Family Court to entertain and decide an application under Order 9 Rule 13 of the Code.' Learned counsel referred to the provisions of section 7 of the Act and submitted that the Family Court has jurisdiction only in respect of suits or proceedings of the nature mentioned in Explanation appended to sub-section (1) of that section. According to learned counsel since proceeding under Order 9 Rule 13 does not find mention in any of the clauses of the said Explanation, the Family Court has no jurisdiction to entertain the same and issue notice to the petitioner. Counsel in support of his contention that only the court which had passed the decree has jurisdiction to entertain and decide miscellaneous case under Order 9 Rule 13 placed reliance on 1978 BLJ, 254. 3. The submission, in my view, is wholly misconceived. It is an admitted position that the original suit instituted by the petitioner being one for dissolution of marriage is covered by clause (a) of the Explanation to section 7(1). Section 8 of the Act provides that where a Family Court has been established for an area no district court or any subordinate civil court shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to section 7(1). Clause (c) of section 8 which is relevant for the purpose of the instant case may be quoted in its material part :"(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of sec. Clause (c) of section 8 which is relevant for the purpose of the instant case may be quoted in its material part :"(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of sec. 7 and every proceeding under Chapter ix of the Code of Criminal Procedure, 1973 (2 of 1974) (i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before, any magistrate under the said Code; and (ii) xx xx xx shall stand transferred to such Family Court on the date on which it is established." 4. Counsel for the petitioner did not dispute the proposition that in view of the clear specific provisions of section 8 the suit for dissolution of marriage would have stood transferred to the Family Court. If that be so, it would be difficult to countenance the submission that although the suit for dissolution of marriage brought by the petitioner (had it been pending on 7.1.92 would have stood transferred to the Family Court, the civil court would continue to have jurisdiction to decide miscellaneous case under Order 9 Rule 13 arising out of the same very suit. A miscellaneous application under Order 9 Rule 13 pending on that date is an off-shoot of the suit. A favourable decision in that proceeding would result in restoration of the suit to its original file. The Act confers an exclusive jurisdiction on the Family Courts. The jurisdiction is not to be shared with the ordinary civil courts. The submission of the learned counsel, if accepted, would result in duality of jurisdiction which, in my opinion, would be Contrary to the Scheme and the express provisions of the Act. This application is completely misconceived. It is, accordingly, dismissed.