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2017 DIGILAW 712 (JHR)

Gudia Devi @ Guriya Devi v. Santosh Kumar Gupta

2017-04-19

H.C.MISHRA, S.N.PATHAK

body2017
ORDER : Heard learned counsel for the appellant and the learned counsel for the respondent Nos. 2 & 3, who are the father-in-law and mother-in-law of the appellant. Respondent No. 1 is the husband of the appellant and he has not appeared in spite of valid service of notice. 2. The appellant is aggrieved by the order dated 28.8.2015 passed by the learned Principal Judge, Family Court, Deoghar, in Civil Miscellaneous Case No. 1 of 2015, whereby the suit filed by the petitioner appellant under Section 7(I) Explanation (c) & (d) of the Family Courts Act, for grant of injunction, restraining the opposite parties respondents from ousting or dispossessing the petitioner appellant and her children from the scheduled property, and for restraining the opposite parties respondents from selling or alienating the schedule property, was dismissed by the Family Court below, holding that the property in question is exclusively in possession of the mother-in-law, hence the suit filed by the petitioner was not maintainable. 3. The facts of this case lie in a short compass. The petitioner appellant is the daughter-in-law of the respondent Nos. 2 and 3, being the legally married wife of their son, the respondent No.1. It is the claim of the appellant that their residence is situated in Holding No.156 within Ward No.15 of Deoghar Municipal Corporation, fully described in the schedule to the petition, and in that very house, the applicant is still residing, which is her matrimonial home. She has alleged that she was being subjected to cruelty and harassment by the opposite parties, but out of the wedlock, two daughters and one son were born. The cruel treatment to her continued and the opposite parties tried to oust her from the matrimonial home in which she is living with her children and for that, on 16.7.2015 at about 6:00 P.M., the opposite parties along with some anti social elements forced the petitioner to vacate the matrimonial house. The petitioner however, did not succumb to the pressure of the anti social elements and the opposite parties gave one week time to the petitioner for vacating the matrimonial house, otherwise she may be done to death. The petitioner however, did not succumb to the pressure of the anti social elements and the opposite parties gave one week time to the petitioner for vacating the matrimonial house, otherwise she may be done to death. It is stated by the petitioner appellant the said matrimonial house was, though purchased in the name of her mother-in-law, but it was purchased out of the money given out of the Hindu Undivided Family (HUF) property, by the grand father-in-law of the petitioner appellant, and as such, it is not the exclusive property of the mother-in-law, though the property stands in the name of the mother-in-law. 4. With these averments, the petitioner appellant filed the suit in the Family Court below, praying for an injunction for restraining the opposite parties either from ousting or dispossessing the petitioner appellant and her children from the schedule property or from selling or alienating the schedule property to a third party, declaring the same to be the matrimonial home of the petitioner. 5. The Family Court below dismissed the suit, stating that since the property belonged to the mother-in-law, it is not the subject matter between the husband and wife and accordingly, the suit was not maintainable. 6. It may be stated that during the pendency of this appeal, an I.A. No. 1224 of 2017 was filed by the appellant, stating that the suit property has been sold by the mother-in-law on 25.1.2017, which fact is not disputed by the respondents. By order dated 15.2.2017, passed in this appeal, an ad-interim order was passed that in the meantime the appellant shall not be ousted from the disputed property. 7. Learned counsel for the appellant has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch as, the fact whether the suit property exclusively belonged to the mother-in-law or it is the property purchased out of the HUF and thus, the matrimonial home of the petitioner, could only be decided on the basis of the evidence adduced in the Court below and accordingly, the suit could not have been dismissed on the ground of maintainability as has been done by the Court below. It is submitted that if the suit property is a HUF property, the same shall be the matrimonial home of the petitioner appellant, and in that case, the suit shall certainly be maintainable under Section 7(I) Explanation (c) & (d) of the Family Courts Act. 8. In support of his contention, learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in K.A. Abdul Jaleel Vs. T.A. Shahida, reported in 2003 (4) SCC 166 , wherein where, the suit property was purchased in the name of the husband, but it was claimed to be purchased out of the cash given in the marriage gifts of the wife. The dispute with regard to the said property was brought in the Family Court and by Judgment dated 22.7.1998, the suit was decreed in favour of the respondent wife, arriving at a finding that she was the owner of the schedule property. That finding was challenged by the husband before the High Court which was dismissed and the matter ultimately went to the Hon'ble, Supreme Court of India, which laid down the laws as follows :- "10. The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the statement of objects and reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts matters relating to the property of the spouses or either of them. Section 7 of the Act provides for the jurisdiction of the Family Court in respect of suits and proceedings as referred to in the Explanation appended thereto. Explanation (c) appended to Section 7 refers to a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. 11. The fact of the matter, as noticed here-in-before, clearly shows that the dispute between the parties to the marriage arose out of the properties claimed by one spouse against the other. -------------. The wording “ disputes relating to marriage and family affairs and for matters connected therewith” in the view of this Court must be given a broad construction. 11. The fact of the matter, as noticed here-in-before, clearly shows that the dispute between the parties to the marriage arose out of the properties claimed by one spouse against the other. -------------. The wording “ disputes relating to marriage and family affairs and for matters connected therewith” in the view of this Court must be given a broad construction. The Statement of objects and reasons as referred to here-in-before, would clearly go to show 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. 12.….................................. 13. The Family Court was set up for settlement of family disputes. 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. The said Act was enacted despite the fact that Order 32-A of the Code of Civil Procedure was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976, which could not bring about any desired result. 14. It is now a well settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up." (Emphasis supplied). 9. Learned counsel has also placed reliance upon an unreported decision dated 17.02.2011 of the Hon'ble Bombay High Court, in W.P No.7146 of 2010 (Ajay Kumar Madanlal Bajla Vs. Mrs. Neha Vishal Bajla & Ors.) wherein where, it was claimed that the suit property which is a flat at Mumbai in which the wife was living, was purchased out of the HUF property, it was found that the Family Court had the jurisdiction to entertain the suit. 10. Learned counsel accordingly, submitted that in view of Section 7(1) Explanations (c) & (d) of the Family Courts Act, the suit was quite maintainable in the Court below. 10. Learned counsel accordingly, submitted that in view of Section 7(1) Explanations (c) & (d) of the Family Courts Act, the suit was quite maintainable in the Court below. It is admitted by learned counsel that onus lied upon the petitioner appellant to prove that the suit property was purchased out of the HUF property, given by the grandfather-in-law of the petitioner appellant and it is submitted that the opportunity to prove that fact ought to have been given by the Family Court below. 11. Learned counsel for the opposite parties Nos. 2 & 3, on the other hand, has submitted that there is no illegality in the impugned order passed by the Court below, as admittedly, it is a property dispute between the mother-in-law and the daughter-in-law and accordingly, the suit was not maintainable in the Family Court. It is submitted by the learned counsel for the respondents 2 & 3 that the suit property was purchased by the mother-in-law out of her own earnings and accordingly, no injunction could be passed against the suit property, which is in the name of mother-in-law. Learned counsel has submitted that the property in the name of mother-in-law can neither be a subject matter of attachment, nor during the life time of the husband his personal liability to maintain his wife can be directed to be enforced against such property. In support of his contention, learned counsel for respondent Nos. 2 and 3 has placed reliance upon the decision of the Supreme Court in Vimalben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel & Ors., reported in 2008 (3) JCR 14 (SC) : AIR 2008 SC 2675 and in S.R. Batra & Anr. Vs. Smt. Taruna Batra, reported in AIR 2007 SC 1118. 12. Placing reliance on these decisions, learned counsel for respondent Nos. 2 and 3 submitted that the liability of maintaining the daughter-in-law cannot be fastened upon the mother-in-law, and the property of mother-in-law cannot be attached or subjected to any injunction, and accordingly, the Family Court below has rightly dismissed the suit as not maintainable. 13. Having heard learned counsels for both the sides and upon going through the record, we find that the case of the petitioner appellant is that after the marriage, she was living in the matrimonial home, which is the suit property. 13. Having heard learned counsels for both the sides and upon going through the record, we find that the case of the petitioner appellant is that after the marriage, she was living in the matrimonial home, which is the suit property. It is an admitted fact that the suit property is in the name of the mother-in-law. The dispute between the parties is whether the suit property is the exclusive property of the mother-in-law, or whether the same had been purchased out of the money given out from the HUF property by the grandfather-in-law of the petitioner appellant. If the petitioner appellant succeeds in proving the fact that the suit property was purchased out of the HUF property, we are of the considered view that the petitioner appellant shall have a case to be considered by the Family Court below, as in that case the appellant shall certainly have a right and interest in the suit property by virtue of her marriage in the family, and the suit filed by the petitioner could not have been dismissed on the ground of maintainability. Indeed, in case, the petitioner fails to prove the fact that the schedule property was purchased out of the HUF property, then, the necessary corollary would be that the suit property is the exclusive property of the mother-in-law and in that case, the petitioner appellant had no case at all against the mother-in-law during the life time of her husband. However, the fact remains that the fact whether the suit property was purchased out of the HUF property, is a question of fact, which required to be proved by petitioner appellant in the Court below and for that, appropriate opportunity ought to have been given by the Family Court below to the petitioner to substantiate her case on this point. 14. This being the position, we are of the considered view that the impugned order passed by the Court below dismissing the suit on the point of maintainability, without deciding source of the suit property, is absolutely illegal and cannot be sustained in the eyes of law. 15. 14. This being the position, we are of the considered view that the impugned order passed by the Court below dismissing the suit on the point of maintainability, without deciding source of the suit property, is absolutely illegal and cannot be sustained in the eyes of law. 15. We accordingly, set aside the order dated 28.8.2015 passed by the learned Principle Judge, Family Court, Deoghar, in Civil Miscellaneous Case No. 1 of 2015, and remand the matter back to the Court below to decide the question indicated above in accordance with law and to pass appropriate orders in accordance with law. 16. The ad-interim order dated 15.2.2017, passed in this appeal, protecting the appellant from being ousted from the disputed property, shall continue for a period of one month from today, for giving an opportunity to the appellant to move the Court below in the meantime, seeking appropriate injunction from the Court below. 17. This appeal is accordingly, allowed with the directions as above. Let the Lower Court Record be sent back forthwith a copy of this judgment.