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Rajasthan High Court · body

2016 DIGILAW 92 (RAJ)

Gautam Chand v. Kanchan Devi

2016-01-13

BELA M.TRIVEDI

body2016
ORDER Bela M. Trivedi, J. The present petition has been filed under Article 227 of the Constitution of India challenging the order dated 29.5.14 passed by the Addl. District & Sessions Judge, Kishangarh, District Ajmer (hereinafter referred to as 'the trial court') in Civil Suit No. 108/11, whereby the trial court has dismissed the application of the petitioners-defendants seeking rejection of the plaint under Order 7, Rule 11 of CPC. 2. In the instant case, it appears that the respondent Nos. 1 to 4-plaintiffs have filed the suit under Section 18 of the Hindu Adoption & and Maintenance Act, 1956 against the present petitioners and the other respondent Nos. 5 to 7-defendants seeking permanent injunction, maintenance and for implementation of the family settlement which had taken place amongst the family members of the petitioners. It has been alleged by the respondents-plaintiffs in the plaint that the petitioner No. 1-defendant No. 1 happens to be the husband of the respondent No. 1 and father of the respondent Nos. 2 to 4 (original plaintiffs). The other defendants are the relatives of the petitioner No.1-defendant No. 1. The respondents-plaintiffs have prayed for the injunction in respect of the property which was an ancestral property and in respect of which the family settlement had taken place on 27.3.07 (Annex.2). It has been alleged interalia by the respondents-plaintiffs that the petitioner No.1 was ill treating the respondent No. 1 and therefore she along with her children was staying separately and had right to claim maintenance from the petitioners-defendants. The respondents-plaintiffs have prayed for three reliefs in the suit interalia; (1) for permanent injunction in respect of the suit property belonging to the petitioners-defendants, (2) seeking payment of maintenance of Rs.20,000/- per month from the defendants and (3) seeking implementation of the family settlement dated 27.3.07. The petitioners-defendants therefore filed an application seeking rejection of the plaint under Order 7, Rule 11 of CPC contending interalia that in view of the provisions contained in Section 7 of the Family Courts Act, 1984, the plaint was liable to be rejected. The said application has been dismissed by the trial court, hence the present petition has been filed. 3. Though it has been contended by the learned counsel Mr. The said application has been dismissed by the trial court, hence the present petition has been filed. 3. Though it has been contended by the learned counsel Mr. Vipin Sharma for the respondents-plaintiffs that the petitioners could have filed revision under Section 115 of CPC, and the present petition would not be maintainable, the court is of the opinion that availability of alternative remedy itself would not be a bar against filing of the petition under Article 227 of the Constitution of India. The counsel for the respondents-plaintiffs has also drawn the attention of the court to the provisions contained in Section 18 of the Hindu Adoption and Maintenance Act to submit that the suit having been filed under the said Act, which is a special Act, the provisions contained in the Family Courts Act would not be applicable. However the court does not find substance in the said submission also. As per Section 20, of the Family Courts Act, the provisions of the said Act have effect over the other laws for the time being in force. Hence, the provisions of the Family Courts Act have overriding effect over the provisions contained in other Acts including the Hindu Adoption and Maintenance Act. 4. So far as the jurisdiction of the Family Courts Act is concerned, the relevant Section 7 thereof 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 subsection 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) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) ..... (f) a suit or proceeding for maintenance" 5. (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) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) ..... (f) a suit or proceeding for maintenance" 5. It is also pertinent to note that as per Section 8 thereof, where a Family Court has been established for any area, no district court or any subordinate civil court referred to in sub- section 1 of Section 7 shall have jurisdiction in respect of the suit or the proceeding of the nature referred to in the Explanation to that sub-section. 6. In view of the said provisions, the suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them, and a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship and suit or proceeding for maintenance have to be filed in the family court as contemplated therein. There being prayers in the suit for maintenance and injunction in respect of the suit property belonging to the petitioner No. 1 and other petitioners, the said prayers would clearly fall within the purview of the said provisions contained in Section 7 However, so far as the prayer sought in the suit with regard to implementation of the family settlement is concerned, it is the civil Court and not the Family Court which would have the jurisdiction. 7. Under the circumstances, the court is of the opinion that the suit filed by the respondents-plaintiffs with the prayer for implementation of the family settlement i.e. with regard to prayer (c) of the plaint may continue with the trial court, however for the other prayers of injunction and maintenance as contained in prayers (a) and (b), the trial court would not have the jurisdiction and the respondents-plaintiffs would be at liberty to file separate proceedings before the concerned family court having jurisdiction. 8. In that view of the matter, the impugned order passed by the trial court is set aside and the petition stands allowed to the aforesaid extent. By this order, the stay application stands dismissed.