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2021 DIGILAW 371 (UTT)

REKHA NEGI v. DIMPLE NEGI

2021-07-26

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan) Aggrieved by the order dated 06.07.2021, passed by the learned Principal Judge, Family Court, Dehradun in Original Suit No.456 of 2021, whereby the learned Family Court has dismissed their application under Order VII Rule 10 & 10-A of C.P.C., the defendants-appellants are before this Court in the present appeal. 2. Briefly, the facts of the case are, that the plaintiffs respondents, Smt. Dimple Negi, and Km. Pari Negi, had filed a civil suit before the Family Court for seeking a declaration that the plaintiffs are the legal heirs of Late Mr. Vishamber Singh, that they have right and interest in the movable and immovable properties of Mr. Vishamber Singh after his death. They had also sought a declaration that they are entitled to the death benefits which would be released by the Oil and Natural Gas Corporation (for short “the ONGC"), defendant No.4. They had further sought a permanent injunction in their favour against defendant Nos.1 to 3, who according to the plaintiffs were the first wife of Late Mr. Vishamber Singh, and his two children from the first wife. 3. According to plaintiff No.1, she met Mr. Vishamber Singh through Facebook. They fell in love with each other. Heinformed her that his first wife had expired, and his two children were staying with their grandparents. Therefore, he is looking for a companion for himself. The plaintiff No.1, and Mr. Vishamber Singh got married on 15.10.2016 at Gurudwara Shri Guru Singh Sabha, situated at Mahinder Park, Delhi. At the time of marriage, while the plaintiff No.1 was residing in Delhi, Mr. Vishamber Singh was residing in Dehradun, and working with the ONGC. After the marriage, Mr. Vishamber Singh brought the plaintiff No.1 to his house situated at Yamnotri Enclave Store, Phase-II, Chanderbani Road, near Kothari General Store, Dehradun. During the marriage, on 19.09.2018, the plaintiff No.1, and Mr. Vishamber Singh were blessed with a daughter. A few years after their marriage, and after the birth of their daughter, Mr. Vishamber Singh informed the plaintiff No.1 that he had lied about his first wife (defendant No.1 in the Civil Suit). It is not that she had died, but he had taken divorce from her. He further informed the plaintiff No.1 that he had already settled the permanent alimony with his first wife. During the COVID- 19 pandemic, unfortunately, Mr. Vishamber Singh informed the plaintiff No.1 that he had lied about his first wife (defendant No.1 in the Civil Suit). It is not that she had died, but he had taken divorce from her. He further informed the plaintiff No.1 that he had already settled the permanent alimony with his first wife. During the COVID- 19 pandemic, unfortunately, Mr. Vishamber Singh died on 12.05.2021. After his death, the plaintiffs approached the ONGC for completing the formalities pertaining to the death benefits. However, the plaintiff No.1 was shocked to know that the name of Mr. Vishamber Singh's first wife, i.e. thename of the defendant No.1, Smt. Rekha Negi, continued to be recorded in the official record of the ONGC. 4. The plaintiff No.1 further claimed that, immediately, after the death of Mr. Vishamber Singh, on 26.05.2021, the defendant Nos.1 and 2 came to her house, and told her to immediately vacate the house, failing which she would face dire consequences. Moreover, subsequently, on 27.05.2021, she has learnt that the defendant No.1 is planning to sell the house. When she questioned the defendant Nos.1 and 2 as to why they are planning to sell the house, she was again threatened by defendant No.2. Consequently, in order to save her life and property, the plaintiff filed a complaint before the Senior Superintendent of Police, Dehradun. But, so far, no action has been taken by the police. 5. The plaintiff further claimed that on 30.05.2021, defendant Nos.1 and 2 came with anti-social people, and forcefully tried to evict the plaintiffs from the ground floor of her house. Further, their illegally entered the first floor of the said property. Ever since then, the defendants Nos.1 to 3 are staying on the first floor. They continued to threaten the plaintiff. Therefore, the plaintiffs filed the suit for declaration and permanent injunction. Along with the suit, the plaintiffs filed an application for temporary injunction. 6. The defendants had filed an application under Order VII, Rule 10 & 10-A of C.P.C., wherein they claimed that the suit was neither between the parties married to each other, nor between any property involving the parties who are/were married to each other. Furthermore, the suit was not filed for declaration of a matrimonial status. Therefore, according to the defendants-appellants, the suit was not maintainable. Hence, the plaint deserved to be returned to the plaintiffs. 7. Furthermore, the suit was not filed for declaration of a matrimonial status. Therefore, according to the defendants-appellants, the suit was not maintainable. Hence, the plaint deserved to be returned to the plaintiffs. 7. However, by order dated 06.07.2021, the learned Principal Judge, Family Court has dismissed the application filed by the defendants-appellants. The learned Family Courthas concluded that the suit is, indeed, maintainable under Section 7 of the Family Courts Act, 1984. Hence, the present appeal before this Court. 8. Mr. Neeraj Garg, the learned counsel for the appellants has pleaded that, firstly, the suit does not deal with two parties who are married to each other. Secondly, it does not deal with a property of two parties who are married to each other. In fact, the suit is for declaration and permanent injunction against the first wife of Late Mr. Vishamber Singh, and his two children from the first marriage. Therefore, the suit is a civil suit simpliciter for declaration and permanent injunction. Hence, the learned Family Court would not have the jurisdiction to try the same. Thirdly, the present case is completely covered by the judgment of the Hon'ble Supreme Court in the case of R. Kasturi & others vs. M. Kasturi & others, ( AIR 2018 SC 786 ). However, the learned Family Court has ignored the said judgment. Fourthly, the issues raised by the plaintiffs require exhaustive and elaborate evidence within the parameters of the Indian Evidence Act. Since, the learned Family Court is not required to strictly adhere to the Indian Evidence Act, it may lead to grave injustice to the defendants-appellants. Therefore, the impugned order deserves to be set-aside by this Court. 9. Heard the learned counsel for the appellant, and perused the impugned order. 10. Section 7 of the Family Courts Act is 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, 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 of proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit of proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit of 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". 11. The Explanation defines the jurisdiction of the Family Court. According to clause (a) of Section 7(1) of the Family Courts Act, a suit is maintainable where the parties are married to each other, but are seeking decree of nullity of marriage, or restitution of conjugal rights, or judicial separation, or dissolution of marriage. Thus, under clause (a), it is imperative that both the parties be married to each other. But according to clause (b), it is not essential that the parties be married to each other. For clause (b) permits a suit to be filed for a declaration as to the validity of a marriage, or as to the matrimonial status of any person. Therefore, a suit can be filed by a woman seeking a declaration of her matrimonial status with the living or a dead husband. 12. For clause (b) permits a suit to be filed for a declaration as to the validity of a marriage, or as to the matrimonial status of any person. Therefore, a suit can be filed by a woman seeking a declaration of her matrimonial status with the living or a dead husband. 12. In the present case, the plaintiff is seeking a declaration that she be declared as a legally wedded wife of Late Mr. Vishamber Singh. After all, the plaintiff has sought a declaration that the plaintiffs be declared as legal heirs of Late Mr. Vishamber Singh. Plaintiff No.1 can be declared as a legal heir of Late Mr. Vishamber Singh, if and only if, her matrimonial status is determined and declared by the learned Family Court. 13. Moreover, under clause (e), a suit can be filed for declaration with regard to the legitimacy of any person. The plaintiffs have filed the present suit for declaring the legitimacy of plaintiff no.2. After all, the plaintiff No.2 can claim to be a legal heir of Late Mr. Vishamber Singh only if she is declared to be his legitimate daughter. Therefore, even under clause (e) of Section 7(1) of the Family Courts Act Explanation, the suit would be maintainable. 14. Moreover, clause (d) of Section 7(1) of the Family Courts Act speaks about a suit for seeking an injunction in circumstances arising out of matrimonial relationship. Since the property in dispute belonged to the alleged late husband of plaintiff No.1, since the plaintiffs are seeking an injunction against the defendants-appellants, the Suit is equally maintainable under clause (d) of Section 7(1) Explanation of the Family Courts Act. After all, even clause (d) does not us the words “parties to a marriage". 15. Moreover, Section 8 of the Family Courts Act clearly provides that where a Family Court has been established for any area, no district court, or any subordinate civil court would have the jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation of Section 7(1) of the Family Courts Act. Therefore, the learned Family Court was justified in concluding that a Suit is, indeed, maintainable under Section 7(1) Explanation of the Family Courts Act. 16. As far as the case of R. Kasturi & others (supra) is concerned, the case is distinguishable on factual matrix itself. Therefore, the learned Family Court was justified in concluding that a Suit is, indeed, maintainable under Section 7(1) Explanation of the Family Courts Act. 16. As far as the case of R. Kasturi & others (supra) is concerned, the case is distinguishable on factual matrix itself. In the said case, the Hon'ble Supreme Court has held that there is no family dispute between the plaintiffs and the defendants. The dispute between the parties is purely a civil dispute and has no bearing on any dispute within a family which needs to be resolved by a special procedure as provided under the Family Courts Act. Since the case of R. Kasturi & others (supra) is distinguishable on the basis of its facts, the said case does not come to the rescue of the defendants-appellants. 17. For the reasons stated above, this Court does not find any merit in the present appeal. It is, hereby, dismissed.