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2010 DIGILAW 583 (GUJ)

Dipika Amrutbhai Patel v. Vishwam Parmanand Patel

2010-12-10

A.L.DAVE, V.M.SAHAI

body2010
JUDGMENT 1. MR.JUSTICE A.L.DAVE J. Admitted. Learned advocate Ms. Trusha Patel waives service of notice of admission on behalf of the respondent. 2. THE appellant was the plaintiff before the Family Court, Surat, in Family Suit No.198/2010 filed under Sections 7 and 8 of the Family Courts Act with other provisions, and had sought the reliefs, which can be translated in English language as under:- declare that Deed of Divorce executed between the parties to the Suit on 19.2.2009 and registered on 5.3.2009 with the Office of Sub-Registrar, Ahmedabad at serial No.2176 in Book No.4, is as per the prevalent custom of the community of the parties and is legal and valid, and declare further that by virtue of the said Deed, the parties have ceased to be the husband and wife. The respondent herein (original defendant) filed reply affidavit at Exh.10 supporting the claim. 3. THE Family Court, Surat, however, observed that there is no provision in the Hindu Marriage Act for giving such declaration in respect of a deed of divorce. When it was contended that the Suit is under Section 7(1)(b) of the Family Courts Act, 1984, the Court observed thus:- 16. Plaintiff's advocate has argued that as per Sec.7(1)(b) of the Family Courts Act, 1984, the party can file a suit for declaration about the matrimonial status of any person. But, considering the plaint, nothing appears that plaintiff has claimed the relief of declaration about her matrimonial status. Nothing appears from the plaint that plaintiff has claimed the relief of declaration that relation of husband and wife between the parties is not existent. Plaintiff's main relief is for the declaration that the Deed dated 5.03.2009, executed as per the custom prevalent in the community of the parties, is legal and valid. So, the main relief is not in the nature of declaration about the matrimonial status of the parties. Ultimately, the Suit came to be dismissed. Hence, this appeal. 4. LEARNED advocates for the parties have submitted before us that the parties to the litigation are Kadva Patidar and customary divorce is prevalent in the community. The Family Court has not examined this aspect by holding that it has no jurisdiction to grant declaration in respect of marital status of parties, either under the Hindu Marriage Act or under the Family Courts Act. The Family Court has not examined this aspect by holding that it has no jurisdiction to grant declaration in respect of marital status of parties, either under the Hindu Marriage Act or under the Family Courts Act. This is a clear error on the part of the Family Court, Surat, which may result in wasting lives of two young individuals, if the appeal is not taken up for final hearing. They requested that the appeal may be taken up for final hearing, as only a narrow issue is involved. In our view, the request is justified and, therefore, we take up this appeal for final hearing at the admission stage itself. Upon going through the plaint, we find that the Suit was filed under Sections 7 and 8 of the Family Courts Act, Section 3 of the Hindu Marriage Act and Sections 31, 32, 34 and 35 of the Specific Reliefs Act, seeking a declaration that the divorce by a registered customary divorce-deed was legal and valid and further a declaration that the parties have ceased to be the husband and wife. Meaning thereby, a declaration on marital status of the parties was sought. 5. SECTION 7 of the Family Courts Act, 1984 provides that subject to the provisions of the Act, Family Court shall 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. 7.1 The Explanation states that the suits and proceedings referred to in the said sub-section are suits and proceedings of the nature, which would include a suit or proceeding for a declaration as to the validity of a marriage or as to matrimonial status of any person. 6. IN our view, if the reliefs sought in the suit are seen, they squarely fall within the above description viz., declaration as to the validity of a marriage when the party states that customary divorce taken by the parties by executing a deed be declared to be valid. It decides the validity of the matrimonial relationship and the declaration that the parties are no more husband and wife, would be on their matrimonial status. It decides the validity of the matrimonial relationship and the declaration that the parties are no more husband and wife, would be on their matrimonial status. The Family Court, therefore, has committed an error in coming to the conclusion that it had no jurisdiction to grant the reliefs sought in the plaint. 7. THERE is no point in remanding the matter to the Trial Court for deciding it afresh, as it would be again a time consuming process. 8. THERE is no dispute between the parties that they belong to 'Kadva Patidar' community. It is a well settled proposition of law that customary divorce is prevalent in this community and, therefore, the document of divorce executed by the parties and registered with the Sub-Registrar, Ahmedabad, is a valid document of divorce and would validly snap the relationship of husband and wife between the parties. The said document was executed on 19.2.2009 and registered on 5.3.2009. The Suit was filed on 7.5.2010. The marriage was solemnized on 9.5.2004. In any event, the parties have lived separately, at least, for a period of more than one year because it is nobody's case that after execution of the Divorce-Deed, they have ever lived together. If we would examine from any angle their relationship, marital life between the spouse stands snapped. The moment we conclude that the Divorce-Deed is a valid document of divorce between the parties, their relationship snaps and they cease to be husband and wife. The Suit, therefore, ought to have been decreed. It is now, therefore, held by us that the Deed of Divorce registered on 5.3.2009 with the Sub-Registrar, Ahmedabad, at serial No. 2176 in Book No.4, is a valid document of divorce and it legally snaps the relationship between the parties, that of husband and wife. It is, therefore, declared that they cease to be husband and wife. 9. THE appeal stands allowed accordingly. No costs. 10. IN view of final disposal of the main appeal, this civil application does not survive and stands disposed of accordingly.