Research › Search › Judgment

Tripura High Court · body

2022 DIGILAW 139 (TRI)

Debasish Sinha v. Kuheli Sinha

2022-03-17

S.G.CHATTOPADHYAY, S.TALAPATRA

body2022
JUDGMENT S. Talapatra, J. - Heard Mr. D.K. Biswas, learned senior counsel appearing for the appellant and also heard Mr. S. Lodh, learned counsel appearing for the respondent. 2. By means of this appeal, filed under Section 19(1) of the Family Courts Act, 1984, the appellant has challenged the judgment and decree dated 03.07.2018 whereby the suit instituted by him under Section 26 of the Hindu Marriage Act, 1955 read with Section 3(b) and (c) of the Hindu Adoption and Maintenance Act, 1956 and under Section 39 of the Specific Relief Act, 1963 has been dismissed on returning an observation that in the fact and circumstances of this case, at this stage, the petitioner is not entitled to evict the respondent from the suit building/land until and unless the matter of entitlement of maintenance by the respondent is decided between the parties in a suit based on full and complete pleadings relating to the entitlement of maintenance to the respondent. Thereafter it has been also observed that the petitioner is not entitled to get mandatory injunction directing the respondent to leave and vacate the residence in favour of the petitioner as per schedule of the petition and to hand over the said two sons to the petitioner. 3. It may be noted that the appellant and the respondent were the husband and wife till the decree in Title Suit (Divorce) 70 of 2009 was passed on the ground of adultery by dissolving the marriage that subsisted between the parties. The judgment and decree was passed on 27.08.2011. An appeal being appeal No. MAT 08 of 2011 in the High Court of Tripura was preferred from the said judgment and decree. The said appeal was also dismissed affirming the judgment passed by the Family Court in Title Suit (Divorce) 70 of 2009. Thus, the said judgment and decree allowing divorce reached finality without further challenge. It appears from the petition (containing the pleadings filed under Section 26 of the Hindu Marriage Act, read with Section 3(b) of Hindu Adoptions and Maintenance Act, 1956 and under Section 39 of the Specific Relief Act, 1963) that at the time of filing the said petition i.e. on 20.05.2016 both the children who are in the custody of the respondent and the respondent were occupying a room in the house of the appellant herein. To evict the respondent therefrom and to get custody of the children that petition has been filed urging the following reliefs: (i) a declaration of petitioner's right to get the above noted two sons Shri Senhasish Sinha & Shri Debayan Sinha in to petitioner's guardianship and custody and with him; (ii) Mandatory injunction directing this respondent to leave and vacate this involved residence in favour of this petitioner and to hand over the said two sons to this petitioner. 4. Mr. D.K. Biswas, learned senior counsel has at the outset of his submissions has categorically stated that both the sons are born in the wedlock of the appellant and the respondent. Bt efflux of time, both the children have become major, meaning both of them have attained the age of 18 years. As such, the issue of restoring custody has become irrelevant and such relief has also turned out to be infructuous. 5. Mr. Lodh, learned counsel appearing for the respondent has as well acceded to that submission. The other issue that has been fiercely contested by the parties is whether the respondent can continue the occupation in the house of the appellant. 6. The observation of the Judge, Family Court has already been noted by us. We are of the view that such observation was wholly unwarranted inasmuch as the Family Court is not supposed to adjudicate a dispute totally relating to immovable property and not attached to or having any lien in connection with another matrimonial dispute. It is the admitted position that the respondent did not raise any issue of the maintenance out of the said immovable property nor did she claim for residence. 7. Having situated thus, we are of the considered view that the Family Court did not have the jurisdiction to extend, for determination of the dispute of this nature. Section-7 of the Family Courts Act provides that the Family Court shall have and exercise all the jurisdictions 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 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. In the explanation the following has been provided: the suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely (a) a suit or proceedings 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. That apart, the jurisdiction is exercisable by a Magistrate of the First Class under Chapter IX of the Cr.P.C. can also be exercised by the Family Court. Out of the catalogued jurisdictions, the explanation that may be of some relevance namely a suit or proceeding between the parties to a marriage with respect to the properties of the parties or either of them and a suit of the proceeding for an order of injunction of the circumstances arising out of a marital relationship we have already come across that marital relationship between the parties have been long declared non-existent by way of decree of divorce and as such jurisdiction under explanation (c) and (d) cannot also be invoked in the present context. So the test is whether the dispute arising out of the marital relationship or not. The suit is bound to fail in that test. 8. In view of that, we do not find any infirmity, in the judgment and order challenged in this appeal. However subject to what we have observed regarding the observation made by the Judge, Family Court in the said judgment, we must note that if the appellant has a right on the immovable property under dispute has remedy by approaching the Civil Court of the competent jurisdiction. 9. However subject to what we have observed regarding the observation made by the Judge, Family Court in the said judgment, we must note that if the appellant has a right on the immovable property under dispute has remedy by approaching the Civil Court of the competent jurisdiction. 9. In terms of the above, the appeal stands dismissed. Draw the decree accordingly. Send down the LCRs thereafter.