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2008 DIGILAW 858 (GAU)

Nishamoni Kalita v. Sarada Kalita

2008-12-19

I.A.ANSARI

body2008
JUDGMENT Iqbal Ahmed Ansari, J. 1. This revision puts to challenge the order, dated 26.9.2008, passed by the learned Civil Judge No. 3, Kamrup, in Misc. (J) Case No. 54 of 2008, arising out of Title Suit No. 242 of 2007, whereby the learned Court below has rejected the application made, under Section 9 of the Hindu Adoptions and Maintenance Act, 1956 (in short, the Act of 1956) by the present petitioner, claiming maintenance, for herself as well as for her minor child, the ground for rejection being that the application, made under Section 19 of the Act of 1956, is not maintainable inasmuch as it is the Family Court, at Guwahati, which has the jurisdiction to entertain an application under Section 19 of the Act of 1956 and not the Court of Civil Judge, Kamrup, Guwahati. This application, seeking direction for maintenance, had been filed, it may be pointed out, in the suit, which stands instituted by the petitioners, seeking partition of the landed properties, which are said to have been left behind by late Anup Chandra Kalita, father-in-law of the petitioner No. 1 and grand-father of the petitioner No. 2. 2. I have heard Mr. M.K. Choudhury, learned Senior counsel appearing on behalf of the plaintiffs-petitioners. 3. Before entering into the merit of the present revision, which has arisen out of an application made under Article 227 of the Constitution of India, the facts of the case need to be taken note of. The relevant facts are, in brief, set out as under: (i) The petitioner No. 1 is the widow of Late Angshuman Kalita, who died on 10.12.2004. The petitioner No. 2 is the minor son of the petitioner, No. 1. After the death of her husband, the petitioner No. 1 continued to live with her, minor son at her matrimonial home. After the death of her father-in-law on 5.2.2005, the petitioner No. 1 was subjected to cruelty, physically as well as mentally, by her mother-in-law and sisters-in-law. Neither the petitioner No. 1 nor her minor child (i.e., the petitioner No. 2) was given the benefit of, or any share in, the properties left by her father-in-law, though, according to what the petitioners claim, the petitioners are, under the Hindu law, entitled to receive, as legal heirs of deceased Angshuman Kalita, a share in the property, which the father of the said deceased has left behind. With these grievances, the petitioners instituted the suit aforementioned seeking partition of the properties left by deceased Anup Chandra Kalita, father of deceased Angshuman Kalita. (ii) As the petitioners were not provided with proper food and clothing, they filed an application, under Section 19 of the Act of 1956, for direction to the defendants (who included, widow and daughters of the deceased Anup Chandra Kalita), to give maintenance to the petitioner No. 1 as well as her minor child, i.e., petitioner No. 2. This petition having been rejected, as indicated above, on the ground that the application, in question, can be adjudicated upon by the Family Court, at Guwahati, and not by other civil Courts, at Guwahati, the petitioners have, now, filed this application under Article 227 of the Constitution of India. 4. Assailing the impugned order, Mr. Choudhury has submitted that the learned Court below has wrongly held that the application, made under Section 19 of the Act of 1956, was not maintainable on the ground that the Court of the Civil Judge, at Guwahati, does not have the jurisdiction in such matters. In support of his submission that the Civil Court, at Guwahati, has the jurisdiction to entertain, in a case of present nature, an application seeking maintenance under Section 19 of the Act of 1956, Mr. Choudhury submits that the Family Court Act, 1984 (in short, the Act of 1984), deals with the disputes between a man and a woman, who claim to be husband and wife, and, consequently, a Family Court cannot deal with a dispute, which does not arise between a husband and wife. In the present case, points out Mr. Choudhury, the suit for partition has been instituted by the petitioners seeking partition of the properties, which the father-in-law of the petitioner No. 1 had left behind, and, in such a suit, when the petitioners had sought for directions to be given to the defendants, who are in-laws of the plaintiff-petitioner No. 1, it cannot be said that the civil Court, which is in seisin of the suit, is deprived of its jurisdiction to entertain an application under Section 19of the Act of 1956, because of the fact that a Family Court stands established at Guwahati. 5. 5. In the light of the submissions noted above, the questions, which fall for determination, are as under: (i) Whether a Family Court, constituted under the Act of 1984, has no jurisdiction to deal with any dispute other than matrimonial disputes or disputes arising between husband and wife? (ii) If a Family Court already stands established at a given place, whether an ordinary civil Court can grant maintenance on the basis of an application, made, under Section 19 of the Act of 1956, in a suit, instituted by a widow claiming partition of the property left behind by her father-in-law? (iii) Whether a civil Court, other than a Family Court, has the jurisdiction to entertain an application under Section 19 of the Act of 1956, when a Family Court is established, under Section 3 of the Act of 1984, for a given area? (iv) Whether a civil Court, other than the Family Court, at Guwahati, has the Jurisdiction to entertain an application under Section 19 of the Act of 1956? 6. While considering the present revision, what needs to be pointed out, at the very out set, is that the Act of 1984 does not decide only such disputes, which arise between husband and wife, but also disputes, which may arise in a family, consisting of persons besides the husband and wife. What kinds of disputes, a Family Court can exercise jurisdiction upon, are embodied in Section 7, which reads as under: 7. Jurisdiction – (1) Subject to the 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. (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 for the area to which the jurisdiction of the Family Court extends. (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 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). (b) Such other jurisdiction as may be conferred on it by any other enactment. 7. A bare reading of the provisions, contained in Section 7, shows that all the jurisdiction, which are exercisable by any District Court or any subordinate Civil Courts, under any law, for the time being in force, in respect of suits and proceedings, will stand vested, in a Family Court, upon its establishment under Section 3 if the suit or proceeding is of the description, which has been enumerated under the Explanation to Sub-section (1) of Section 7. Clause (f) to the Explanation clearly shows that a suit or a proceeding, for maintenance, falls within the jurisdiction of a Family Court, when such a Court is established under Section 3, because it is the Family Court, which shall be deemed to be the District Court or, as the case may be, such Civil Court, which has to exercise jurisdiction in respect of suits or proceedings for maintenance. In fact, putting to rest all doubts, in this regard, namely, as to whether a District Court and/or an ordinary civil Court can exercise jurisdiction in respect of suits or proceedings of the nature as referred to in the Explanation to Sub-section (1) of Section 7, when a Family Court stands established at a given place, Section 8 lays down that where a Family Court has been established for any area, no District Court or any subordinate Court, referred to in Section 7(1), in relation to such area, shall have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section. 8. Thus, a critical analysis of the relevant provisions contained in the Family Court Act, 1984, makes it amply clear that when a Family Court is established under Section 3, no suit or proceeding for maintenance can be entertained by any District Court or, as the case may be, by any other subordinate Civil Court in relation to the area, which falls within the territorial jurisdiction of the Family Court. Viewed thus, it is clear that the Family Court, at Guwahati, has the exclusive jurisdiction to deal with, amongst other, suits or proceedings for maintenance including an application for maintenance under Section 125 of the Code of Criminal Procedure and neither the District Court nor any other subordinate Civil Court has the jurisdiction to adjudicate upon a suit or proceeding for maintenance. 9. In the backdrop of the position of law as indicated above, when one reverts to the case at hand, what emerges is that the application under Section 19 of the Act of 1956, which the petitioners had filed in the said suit for partition, fell within the exclusive jurisdiction of the Family Court, at Guwahati. 9. In the backdrop of the position of law as indicated above, when one reverts to the case at hand, what emerges is that the application under Section 19 of the Act of 1956, which the petitioners had filed in the said suit for partition, fell within the exclusive jurisdiction of the Family Court, at Guwahati. As a corollary, it follows that the Civil Court, which was in seisin of the partition suit, in the present case, could not have exercised jurisdiction in respect of such an application for maintenance. Merely because of the fact that the said application, under Section 19 of the Act of 1956, had been filed in a partition suit, it will not confer on the Civil Court the jurisdiction to deal with such an application, when exercise of jurisdiction by the Civil Courts, other than the Family Court, stands barred, in this regard, by the statute. 10. What logically follows from the above is that the learned Court below committed no error of law, when it declined to exercise jurisdiction on the application made by the petitioners under Section 19of the Act of 1956. 11. Because of what have been discussed and pointed out above, I do not find that the impugned order suffers from any infirmity, factual or legal. The revision is, therefore, not admitted and shall accordingly stand dismissed. Petition dismissed.