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2006 DIGILAW 634 (KAR)

N. NARASIMHIAH v. B. S. VIMALA

2006-08-03

D.V.SHYLENDRA KUMAR

body2006
( 1 ) WRIT Petition No. 10166/2006 is by the 1st defendant in O. S. No. 239/ 2002 and writ petition No. 10119/2006 is by the sole defendant in O. S. No. 264/2002 on the file of the Court of I Addl. Family Court at Bangalore. ( 2 ) WHILE O. S. No. 239/2002 is instituted by the sole plaintiff in the suit seeking for a relief of permanent injunction against the defendants from interfering with the plaintiffs possession and enjoyment of the suit schedule property and for other consequential relief. O. S. No. 264/2002 is by one Smt. Vimala/plaintiff who is also the plaintiff in O. S. No. 239/2002, along with her son, who is the 2nd plaintiff in O. S. No. 264/2002, impleading the common defendant, who is said to be the husband of the 1st plaintiff and the suit is for the relief of partition of plaint schedule properties and for their share, on the premise that the 1st plaintiff is the wife and the 2nd plaintiff is the son of the defendant. ( 3 ) THE Family Court it appears had taken up both the suits together and it further transpires a common issue had been framed as the defendant/petitioner in W. P. No. 10119/2006, who had been pleaded to be the husband had disputed the marriage and on such premise prayed for further relief and further had raised a preliminary objection; that the suits were not maintainable under Section 7 of the Family Courts act and this issue having been answered in favour of the plaintiffs in terms of the impugned order passed in common in the two suits, the two writ petitions are directed against the said order. ( 4 ) HEARD Sri R. Vijaya Kumar, learned counsel for the petitioner in W. P. No. 10119/ 2006 and Sri. Narasimha Murthy, learned counsel for the petitioner in W. P. No. 10166/ 2006 as also Sri. Prem Kumar, learned counsel appearing for the respondents in both the petitions. ( 5 ) THE only question raised is as to whether the Family Court was justified recording a finding that the suits were maintainable before the Family Court, particularly in the light of the objections raised by the defendant/defendants in the two suits. Prem Kumar, learned counsel appearing for the respondents in both the petitions. ( 5 ) THE only question raised is as to whether the Family Court was justified recording a finding that the suits were maintainable before the Family Court, particularly in the light of the objections raised by the defendant/defendants in the two suits. ( 6 ) SUBMISSION of the learned counsel for the petitioners, is that the defendants in the suit having disputed the acceptance of very matrimonial relationship and the jurisdiction of the Family Court being only when a dispute is amongst the family members and the defendants having taken up the stand that the plaintiffs are strangers to the defendant, the Family court does not get jurisdiction and therefore if at all the suits could have been tried by only Civil Courts, other than Family Court and as the suit is filed before the Family Court, it was not tenable and on such premise the Family Court should have issued an appropriate order/ direction and as the Family Court has failed to do so, these writ petitions are filed. ( 7 ) IN this regard learned counsel for the petitioners have drawn my attention to the provisions of Section 7 of the Family Courts act, 1984. Section 7 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 circumstances 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. (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. " ( 8 ) IT is not in dispute that the plaintiff has averred in the plaint that the plaintiff in O. S. No. 239/2002 is the wife of the 2nd defendant in that suit (petitioner in W. P. No. 10166/06) and likewise in the other suit also. The plaint proceeds on the premise that there exists such a relationship. If such a relationship is pleaded and if a relief which is within one or the other sub-clauses figuring in the explanation to sub-section (1)of Section 7 is the subject-matter of the suit, the suit is definitely maintainable before the family Court which has jurisdiction. It is a different aspect that the defendant is disputing the relationship itself, on such a disputed aspect Court will have to frame an issue but it does not take the said suit out of the jurisdiction of the Family Court. It is a different aspect that the defendant is disputing the relationship itself, on such a disputed aspect Court will have to frame an issue but it does not take the said suit out of the jurisdiction of the Family Court. ( 9 ) PRIMA facie it appears the Family Court has jurisdiction and therefore, I am of the view there is no need or necessity for interfering in a matter of this nature in Article 227 jurisdiction at this stage. Accordingly these petitions are dismissed. Petitions dismissed.