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Andhra High Court · body

2010 DIGILAW 555 (AP)

G. Pentamma v. G. Anjali

2010-07-02

SANJAY KUMAR

body2010
JUDGMENT : 1. The jurisdiction of the Family Court, Hyderabad, in entertaining O.P.No.387 of 2005 under Section 7(1) Explanation (c) of the Family Courts Act, 1984 is under challenge. 2. O.P.No.387 of 2005 was filed by the first respondent herein against her husband, the second respondent herein, and her sisters-in-law, the petitioners herein, seeking a declaration that she was the joint owner of the petition schedule property along with her husband and to consequently declare the sale deed bearing document No.1193 of 1998 dated 15.05.1998 as invalid and not binding on her. By the said sale deed, the second respondent sold the petition schedule property, being the house bearing M.No.10-3-199, Humayunnagar, Hyderabad, to his three sisters, the petitioners herein. It was the case of the first respondent before the Family Court that she had contributed a half share towards the construction of the petition schedule house and was therefore entitled to be declared as joint owner along with her husband. She further alleged that the sale made by her husband in favour of his sisters was motivated by malice only to deprive her of her share and was therefore not binding on her. 3. While so, the petitioners herein filed I.A.No.796 of 2005 in O.P.No.387 of 2005 under Order VII, Rule 11 of the Code of Civil Procedure seeking rejection of the O.P. in limine. The Family Court by its order dated 24.04.2006 dismissed the I.A. holding that it had jurisdiction to entertain the O.P. as per Section 7(1) Explanation (c) of the Family Courts Act, 1984 (for short, ‘the Act of 1984’) as the O.P. was filed in respect of the house property of the husband and his sisters had been impleaded as they purchased the house. Aggrieved by the dismissal of their application, the sisters filed the present Civil Revision Petition. 4. Though various grounds were urged in the application filed under Order VII, Rule 11 of the Code of Civil Procedure seeking rejection of the O.P., the Family Court only examined the aspect of its jurisdiction under the subject provision. Section 7 of the Act of 1984 to the extent it is relevant reads as under: “7. 4. Though various grounds were urged in the application filed under Order VII, Rule 11 of the Code of Civil Procedure seeking rejection of the O.P., the Family Court only examined the aspect of its jurisdiction under the subject provision. Section 7 of the Act of 1984 to the extent it is relevant 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) … (b) … (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) … (e) … (f) … (g) … Section 8 of the Act of 1984 makes it clear that after the establishment of the Family Court in an area, the district court/ subordinate court in relation to such area would cease to have or exercise jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to Section 7(1). The issue for consideration is whether O.P.No.387 of 2005, wherein the wife challenges the alienation of the house property made by the husband in favour of his sisters long prior to its institution can be said to fall within the ambit of Explanation (c) to Section 7 (1) of the Act of 1984. As pointed out by a Division Bench of this Court in R.DURGA PRASAD v. UNION OF INDIA ( 1998 (1) ALT 652 (DB)), while interpreting the statute, the specific provisions of the statute are to be read and understood and have to be interpreted in consistence with the language and intention of the said legal provisions. As pointed out by a Division Bench of this Court in R.DURGA PRASAD v. UNION OF INDIA ( 1998 (1) ALT 652 (DB)), while interpreting the statute, the specific provisions of the statute are to be read and understood and have to be interpreted in consistence with the language and intention of the said legal provisions. If the language and intention of the legal provisions are clear and unambiguous, then, there is no need to take the aid of the preamble or Statement of Objects and Reasons. It was further pointed out therein that it is always the express legal provisions which operate and the adjudication has to be made only basing upon the said express provisions of the statute unguided by the nature of the caption of the Act or Statement of Objects and Reasons or even the Preamble thereto. Pertinent to note, the Division Bench was dealing with interpretation of the provisions of the Act of 1984. Therefore, the answer as to whether the present suit falls within the ambit of Section 7 (1) Explanation (c) would have to be culled out from the express language of the provision itself and no tortuous hermeneutic exercise is called for. A bare perusal of Explanation (c) indicates that a suit or proceeding between the husband and wife with respect to their property or the property of either of them is covered thereunder. In the present case, the property, being the petition schedule house, stood in the name of the husband though the wife claims that she contributed a half share towards its construction. This house was sold in the year 1998 by the husband to his sisters, the petitioners herein. It is manifest from the record that the husband sought a divorce only in the year 2002, i.e., long after the execution of the sale deed. Thus, by the time the wife instituted the subject suit the petition schedule property had long ceased to be the property of the husband. The question is whether property of the spouses or either of them as mentioned in Explanation (c) can be held to include property which had belonged to them earlier and which ceased to be theirs by the time the suit was instituted. The answer, in my considered view, must be in the negative. The question is whether property of the spouses or either of them as mentioned in Explanation (c) can be held to include property which had belonged to them earlier and which ceased to be theirs by the time the suit was instituted. The answer, in my considered view, must be in the negative. The clear language of the provision lends itself to only one interpretation - that the property should belong to the spouses or either of them as on the date of institution of the suit. It is not for this Court to legislate and add something extra to the provision thereby bringing within its ambit not only the property possessed as on the date of the suit but also the properties owned by the spouses or either of them in the past and alienated/disposed of prior to the institution of the suit. The jurisdiction of the Family Court under Section 7 of the Act of 1984 fell for consideration earlier. In SMT.IZZAT SULTANA v. SABIR BIN YASRAB ( 1995 (3) ALT 430 ), a learned Judge of this Court held that the mere fact that the wife was claiming exclusive rights over a part of the premises along with her children, did not bring the dispute within the fold of the provision as the suit was not confined to the wife and husband. In MRS.MARIAMMA NINAN @ MARIAMMA P. THOMAS v. MR.K.K.NINAN ( 1997 (2) ALT 268 (DB)), a Division Bench of this Court held that a wife could maintain a petition before the Family Court for partition and separate possession of the husband’s property for the construction of which she had contributed. It is not clear however whether the partition was restricted to the spouses alone or other members of the family were also involved. In P.SRIHARI v. P.SUKUNDA ( 2001 (2) ALD 72 (DB)), a Division Bench of this Court disagreed with the view taken in SMT.IZZAT SULTANA3 and affirmed MRS.MARIAMMA NINAN4. The observations of the Division Bench in this regard may be noted: “5. In view of the above, the essential ingredient should be a dispute between the husband and the wife and the said dispute can be with regard to their marital status, divorce, restitution of conjugal rights, judicial separation, child custody, maintenance, as also property sharing. But, in no event, the Family Court can have jurisdiction if the above dispute is absent. In view of the above, the essential ingredient should be a dispute between the husband and the wife and the said dispute can be with regard to their marital status, divorce, restitution of conjugal rights, judicial separation, child custody, maintenance, as also property sharing. But, in no event, the Family Court can have jurisdiction if the above dispute is absent. By no stretch of imagination, can the Family Court assume jurisdiction, if there is a dispute between the brothers, sisters, mothers, fathers etc., concerning property and the case on hand being one such, the Family Court had clearly no jurisdiction. 6. For the reasons mentioned above, the judgment rendered by the learned single Judge in Smt. Izzat Sultana’s case (supra) cannot be said to have laid down correct law. Hence, it is overruled and the view taken by the Division Bench in Mrs. Mariamma’s case (supra) is followed.” The Division Bench was dealing with a case where sisters had filed a suit before the Family Court against the brothers seeking partition of the property. The Division Bench held that the Family Court had no jurisdiction to entertain such a suit and directed its presentation before the regular Civil Court. In K.A.ABDUL JALEEL v. T.A.SHAHIDA ( (2003) 4 SCC 166 ), the Supreme Court was dealing with the question whether a suit under Section 7(1) Explanation (c) of the Act of 1984 could be instituted before the Family Court only if the marriage was subsisting. The Supreme Court answered in the negative stating that even divorced spouses could approach the Family Court by way of a suit as long as it fell within the ambit of the Explanation to Section 7 of the Act of 1984. It was held that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean the properties claimed by the parties thereto as a spouse of the other; irrespective of the claim whether the property is claimed during the subsistence of a marriage or otherwise. It was pointed out that the Family Court was set up for settlement of family disputes and the reason for enactment of the said Act was to set up a Court which would deal with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. It was pointed out that the Family Court was set up for settlement of family disputes and the reason for enactment of the said Act was to set up a Court which would deal with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. A Division Bench of the Karnataka High Court in GENU @ GANU v. JALABAI (ILR 2009 Kar 612) was dealing with a case where the first wife and her children sued the husband, the second wife and her children for partition and separate possession of the husband’s properties. Observing that if the property in dispute did not exclusively belong to the parties to the marriage or either of them, the Division Bench held that a suit for partition involving the rights of others was not maintainable before the Family Court. The observations of the Division Bench in this regard are of guidance: “16. Clause(c) of Explanation to Section 7 specifically deals with property disputes. The dispute should be relating to “property of the parties” or of “either of them”. For the Family Court to exercise its jurisdiction two conditions must be satisfied. Firstly, the said dispute should be between the parties to the marriage only; and secondly, the dispute should be in respect of the property of the parties or either of them. Both these conditions must be satisfied before the Family Court can take cognizance of a suit or proceedings under the Act, in respect of property disputes. Therefore, it is clear that the Family Court has no jurisdiction to entertain and try a suit or proceeding claiming a property by persons other than the parties to the marriage. Further, the property in dispute should belong exclusively to the parties or either of them. If persons other than the parties to the marriage have an interest in the said dispute, the Family Court has no jurisdiction to adjudicate the dispute. In other words, the parties to the marriage cannot claim right in a property, in which third parties also have interest, before the Family Court.” (Emphasis added) A learned Judge of the Kerala High Court on the other hand took a different view in SHYNI v. GEORGE ( AIR 1997 Ker 231 ). The learned Judge observed: “5. In other words, the parties to the marriage cannot claim right in a property, in which third parties also have interest, before the Family Court.” (Emphasis added) A learned Judge of the Kerala High Court on the other hand took a different view in SHYNI v. GEORGE ( AIR 1997 Ker 231 ). The learned Judge observed: “5. On the scheme of the Act and considering the conferment of jurisdiction on the Family Court, it is clear that a suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them comes within the purview of the Family Court. When a wife sues her husband for recovery of her property or which she claims to be her property, obviously the suit could be tried and disposed of only by the Family Court and when in such a suit the wife is, obliged to add a close relative of their husband or even a stranger on the allegation that the husband had made over the property to that close relative or stranger, it will be too much to hold that the jurisdiction of the Family Court is ousted to deal with the claim of the plaintiff in view of the mere presence of the stranger or the close relative of the husband. In such a situation, the close relative of the husband or the stranger could only be the agent of the husband or a confidant of the husband holding the property claimed by the wife on behalf of the husband. It is not possible to accept the argument that in such a circumstance also the wife would be obliged to file the suit against the stranger in an ordinary Civil Court even while she is forced to maintain her suit against the husband in the Family Court. Would it make any difference if in a given case, the property of the wife was entrusted not merely to the husband but also to a close relative of the husband, in this case, the father-in-law? Would it make any difference if in a given case, the property of the wife was entrusted not merely to the husband but also to a close relative of the husband, in this case, the father-in-law? I think that it will be the very negation of the scheme of the Family Court Act and the attempt made by that Act to constitute a Special Civil Court for the purpose of dealing with all matrimonial disputes including dispute about property to hold that the wife would not be entitled to maintain a suit for recovery of her property against the father-in-law in the Family Court. If it were merely a suit against the father-in-law it is quite clear that the suit could be instituted only in the ordinary Civil Court. Equally, if it is merely a suit against the husband for recovery of property, the same could only be maintained in the Family Court. In a case where the claims have to be combined or the same has to be made against both the husband and the father-in-law as in the present case, could it be said that the jurisdiction of the Family Court would stand ousted? My answer is an emphatic no.” However reference was also made by the learned Judge to the earlier Judgment of Kerala High Court in KRISHNAN NAMBOODIRI v. THANKAMANI ((1994) 1 Ker.LT 607) wherein it was held that if the subject matter of the suit belonged not only to the parties to the marriage but also others, the jurisdiction of the Civil Court to entertain such suit is not ousted. The learned Judge affirmed this view by stating that a suit in which a party to the marriage claimed a share in a property not only belonging to the husband but also various other members of the family, would be totally different from a case where the wife filed a suit for recovery of her exclusive property against her husband and someone else who is holding the property on her behalf or who is holding it in trust for her, like the father-in-law in that case. Therefore the observations made in the earlier paragraph extracted above would have to be read in the light of the concurrence expressed thereafter by the learned Judge with the ratio laid down in KRISHNAN NAMBOODIRI9. Therefore the observations made in the earlier paragraph extracted above would have to be read in the light of the concurrence expressed thereafter by the learned Judge with the ratio laid down in KRISHNAN NAMBOODIRI9. Similarly in DEVAKI ANTHARJANAM v. NARAYANAN NAMBOODIRI (AIR 2007 Kerala 38), the Kerala High Court held that a suit for partition in which not only the husband and wife but their children were also parties did not fall within the exclusive jurisdiction of the Family Court. The provisions of the Act of 1984 indicate that the procedure to be followed by the Family Court and the rights of a party before it are very much different from those obtaining before the ordinary Civil Court. Right of representation through a legal practitioner is restricted before the Family Court. The Family Court is empowered to devise its own procedure which may not be in keeping with the one an ordinary Civil Court adopts. These factors, as pointed out by the Delhi High Court in MANITA KHURANA v. INDRA KHURANA (AIR 2010 DELHI 69) would have to be taken into consideration for arriving at a conclusion as to whether a dispute not expressly covered by Section 7 can be held to be so falling within the jurisdiction of the Family Court on the basis of purposive interpretation. The Delhi High Court was dealing with a suit instituted by a mother-in-law against her daughter-in-law for eviction and held that the same did not arise out of the marital relationship. It was held that the claim of a third party to a marriage even if she be the mother of one of the spouses cannot be adjudicated before the Family Court to the prejudice as to procedure, appeal, limitation, of such third party. Viewed thus, it cannot be denied that the petitioners would be placed at a disadvantage if they have to face the subject suit proceedings before the Family Court. It is thus not for this Court to distort the express language of the provision in the name of purposive construction and thereby bring within its ambit matters which do not naturally fall thereunder. It is thus not for this Court to distort the express language of the provision in the name of purposive construction and thereby bring within its ambit matters which do not naturally fall thereunder. Though the aforestated cases did not turn upon the particular issue arising presently, the observations therein apropos the jurisdiction of the Family Court support my view that the language used in Explanation (c) to Section 7(1) of the Act of 1984 limits the exclusive jurisdiction of the Family Court to suits pertaining to the properties of the spouses or either of them as on the date of the institution of the suit and the same cannot be enlarged to include properties which had been held by the spouses or either of them prior to the institution of the suit. If the same were allowed it would result in past alienations made by the spouses or either of them being subjected to challenge under Explanation (c) to Section 7(1) only before the Family Court to the detriment of those alienees who are not parties to the matrimonial relationship. That is not a ‘family dispute’ which can be said to fall within the ambit of the provision. The lower Court was therefore in error in holding that it had jurisdiction merely because the property had once been owned by the husband and his sisters, having purchased the property, were necessary parties. The Civil Revision Petition is accordingly allowed setting aside the order dated 24.04.2006 passed by the Family Court, Hyderabad, in I.A. No.796 of 2005 in O.P.No.387 of 2005, holding that the Family Court, Hyderabad, has no jurisdiction to entertain the subject O.P. The Family Court shall accordingly return the petition and the same may be presented by the first respondent wife before the regular Civil Court having territorial and pecuniary jurisdiction. It is left open to the petitioners herein to pursue such remedies in their defence as they deem fit before the regular Civil Court. No costs.