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2017 DIGILAW 340 (CHH)

Ramdhan Ram @ Garra, S/o. Shyamdhari v. Laxmaniya, W/o. Ramdhan Ram

2017-07-20

SANJAY K.AGRAWAL

body2017
ORDER : 1. The respondent/plaintiff instituted a suit for declaration and for grant of maintenance against the petitioner/defendant seeking relief that plaintiff No.1 (Laxmaniya) is the wife of defendant-Ramdhan Ram and plaintiff No.2 is the daughter of defendant. In that suit, the present defendant filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 for rejection of plaint on the ground that such a suit for declaration is barred by law and therefore not maintainable and liable to be rejected. 2. The trial court by its impugned order rejected the said application finding no merit, feeling aggrieved against that order this writ petition under Article 227 of the Constitution of India has been filed. 3. Mr. Sunil Tripathi, learned counsel for the petitioner/defendant, would submit that the learned Principal Judge, Family Court has committed jurisdictional error in rejecting the application as the suit framed and filed is not cognizable by Family Court in view of provision contained in Section 7 Explanation (e) of the Family Courts Act, 1984 (hereinafter called as ‘Act of 1984’) and relied upon the decision of the Supreme Court in the matter of Renubala Moharana and another v. Mina Mohanty and others, (2004) 4 SCC 215 . 4. Mr. Nishi Kant Sinha, learned counsel appearing for the respondent/plaintiff, would, however, support the impugned order. 5. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the record with utmost circumspection. 6. In order to appreciate the point raised at the Bar, it would be appropriate to notice Sections 7, 8 and 20 of the Act of 1984. 7. Section 7 of the Act of 1984 deals with the jurisdiction of the Family Courts, which reads as follows:- “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. Section 8 of the Act deals with the exclusion of jurisdiction, which reads as follows:- “8. Exclusion of jurisdiction and pending proceedings. Section 8 of the Act deals with the exclusion of jurisdiction, which reads as follows:- “8. Exclusion of jurisdiction and pending proceedings. — Where a Family Court has been established for any area — (a) no District Court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section; (b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)— (i) which is pending immediately before the establishment of such Family Court before any District Court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.” 9. By virtue of Explanation (b) to Section 7(1) of the Act of 1984, a suit or proceeding for declaration as to the validity of marriage or as to matrimonial status of any person is maintainable as that suit is covered by Section 7(1) Explanation (b) of the Act of 1984. In the present case, following reliefs have been claimed by the respondent/plaintiff in the plaint filed before the Family Court which state as under:- ^^¼d½ ;g ?kksf”kr fd;k tk; fd oknh Øekad 1 izfroknh dh iRuh gS vkSj okfnuh Øekad 2 oS/kkfud iq=h gSA ¼[k½ oknhx.k izfroknh ls okn izLrqr fnukad ls izR;sd dks :i;s 3000@& ,oa 3000@& :i;s Hkj.k&iks”k.k ds fy, ikus ds vf/kdkjh gSA ¼x½ oknhx.k dks izfroknh ls lEiw.kZ okn O;; fnyk;k tkosA ¼?k½ vU; izfrdj tks ekuuh; U;k;ky; mfpr ,oa vko';d le>s oknhx.k dks izfroknh ls fnyk;k tkosA^^ 10. The relief No. (b) claimed in the plaint would clearly show that the respondents/plaintiffs have claimed declaration regarding the matrimonial status of plaintiff No.1 that she is wife of the defendant and as such the relief claimed by the plaintiffs is squarely covered by Explanation (b) to Section 7(1) of the Act of 1984. 11. Very recently, the Supreme Court in the matter of Balram Yadav v. Fulmainya Yadav, (2016) 13 SCC 308 dealing with Section 7(1) Explanation (b) of the Act of 1984 held as under:- “7. Under Section 7(1) Explanation (b), a suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the civil courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws.” 12. The relief claimed by plaintiff No.2 that she is daughter of the defendant out of wedlock of plaintiff No.1 with the defendant can incidentally be gone into while adjudicating the matrimonial status of plaintiff No.1 and the defendant. 13. The judgment cited by Mr. Tripathi in the case of Renubala (supra) is clearly not applicable to the present case, that case relates to Section 7(1) Explanation (e) & (g) whereas in the instant case Section 7(1) Explanation (b) is applicable and attracted therefore Renubala (supra) is not helpful to the petitioner/defendant. 14. In light of the above-stated legal analysis, it cannot be held that the Family Court has no jurisdiction to the try the suit filed by the respondents/plaintiffs. The learned Family Court is absolutely justified in rejecting the application filed by the petitioner/defendant. 15. In net result, the writ petition deserves to be and is accordingly dismissed leaving the parties to bear their own costs.