The High Court allowed a Civil Revision Petition, holding that a civil court lacked jurisdiction to entertain a maintenance suit between spouses because Section 7 of the Family Courts Act vests such jurisdiction exclusively in Family Courts.
The order dated 25.04.2019 allowing interim maintenance was set aside; the Civil Revision Petition was allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P.No.2328 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.12.2022
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.No.2328 of 2019 and C.M.P.No.15182 of 2019
I.S.Selvagandhi
... Petitioner
Vs.
K.G.Umasankari ... Respondent
Prayer :- Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order dated 25.04.2019 passed by the learned II Additional District and Sessions Judge at Salem in I.A.No.182 of 2018 in O.S.No.162 of 2018 and allow the revision.
For Petitioner : Mr.M.Mohammed Riyaz
For Respondent : Mr.L.Mouli
ORDER
The Civil Revision Petition has been filed as against the fair and
decreetal order dated 25.04.2019, passed by the learned II Additional District and Sessions Judge, Salem, in I.A.No.182 of 2018 in O.S.No.162 of 2018, thereby allowing the petition seeking interim maintenance under
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Section 24 of the Hindu Marriage Act r/w. Section 151 of C.P.C.
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suit itself is not maintenance before the civil Court and the civil Court has no
jurisdiction to entertain the suit for seeking maintenance in favour of the petitioner and there is no cause of action for filing the suit itself. There was a family dispute between the petitioner and the respondent due to which she was driven out from the matrimonial home. She could not able to maintain herself and therefore, she filed suit seeking maintenance.
3.1. He vehemently contended that Section 7 of the Family Courts Act is very clear that any dispute between the husband and wife and prayer for declaration as to the validity of a marriage, suit between the parties to a marriage with respect to the property of the parties, suit arising out of marital relationship, suit for declaration as to the legitimacy of any person, suit for maintenance, suit relates to the guardianship of the person or the custody of any minor, the Family Courts got jurisdiction and no civil Court has jurisdiction to try the suit. He also pointed out that under Section 8 of the Family Courts Act, 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
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referred to in the explanation to that sub-section. Therefore, the trial Court has no jurisdiction to entertain the suit that too claiming maintenance.
3.2. He further submitted that while pending the suit, the petitioner filed petition for divorce on the ground of cruelty in H.M.O.P.No.426 of 2019 on the file of the Family Court, Salem. While pending the divorce petition, the respondent filed petition in I.A.No.2 of 2022 seeking interim maintenance of Rs.50,000/- per month till disposal of the divorce petition and it is pending for enquriy after filing the counter. Therefore, he prayed to allow the present Civil Revision Petition.
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the Court, the instant order shall stands automatically cancelled. However, the said compromise memo was not acted upon between the parties. He further submitted that already the petition filed by the petitioner for divorce is pending before the Family Court, Salem. Therefore, he prayed to transfer the present suit to the Family Court, Salem and try along with the petition for divorce.
the petitioner and Mr.L.Mouli, learned counsel appearing for the respondent.
wife and they married on 19.08.1988 and gave birth to a male child. Now their son got marry and living separately. Hence, the respondent could not maintain herself and filed the suit for maintenance under Order VII Rule 1 to VI of Civil Procedure Code, before the learned District Judge, Salem, with the following prayers :-
(i) directing the defendant to pay a sum of Rs.12,00,000/- per annum from January, 2017 to December,
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2017 and pay the same continuously till the life time of the plaintiff to the plaintiff.
(ii) create a charge over the properties detailed hereunder under the A schedule for the due paryment of the said maintenance amount by the defendant to the plaintiff till her life time.
(iii) pass an order of permanent injunction that the plaintiff should not be evicted from the property detailed under the “B” Schedule of the plaint during the subsistence of the marriage between the plaintiff and the defendant, against the defendant, his relatives, men, agents and staff and any one claiming under him.
(iv) directing the defendant to pay off the jewel loan payable to the Indian Bank, Sivadhapuram for the jewel loans obtained by him by asking the plaintiff to pledge her jewels, directing her son to pledge the gold jewels of the plaintiff as per the directions of the defendant and the defendant himself had obtained jewel loan by pledging the gold jewels of the plaintiff, all with the Indian Bank, Sivadhapuram, Salem, which are detailed under the “C” Schedule of the plaintiff by redeeming them and to hand them over to the plaintiff, within the time fixed by this Hon'ble Court, by way of a mandatory injunction.
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(v) directing the defendant to repay the Micro loan account in the name of the plaintiff borrowed by the defendant and utilized by him for his business purpose under Micro Loan account No.6421427656 with Indian Bank, Sivadhapuram on 28.03.2016 by way of a mandator injunction with the time fixed by this Hon'ble Court.
(vi) award costs of the suit.”
While pending the suit, the respondent also filed a petition in I.A.No.182 of 2018 under Section 24 of the Hindu Marriage Act and Section 151 of C.P.C., and the same is allowed, as against which the present Civil Revision Petition.
the suit filed by the respondent seeking maintenance before the civil Court is maintainable or not? (ii) whether the civil Court got jurisdiction to entertain the maintenance petition arising out of family dispute?
“7. Jurisdiction :- (1) Subject to the other provisions of
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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;
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(d) a suit or proceeding for an order or injunction in circumstance 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.”
Accordingly, the Family Court has jurisdiction to entertain the above maintenance suit arising out of family dispute.
the Family Court Act as follows :-
“ 8. Exclusion of jurisdiction and pending proceedings.
Where a Family Court has been established for any area,— (a)
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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;”
Thus it is clear that after the Family Court has been established, no other Courts referred to in sub-Section (1) of Section 7 of the Family Courts Act, have no jurisdiction to entertain the suit of the nature referred to in the explanation.
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the Hindu Marriage Act. This is for the reason that a petition within the meaning, for instance, of the Hindu Marriage Act, after a Family Court is established in India, is to be dealt with by the Family Court, on the grounds as provided under the Hindu Marriage Act. In fact, mere perusal of Section 7 of the Family Courts Act would show that it speaks about the suits and proceedings.
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enquriy. Therefore, the present suit itself cannot be sustained as against the petitioner, since the respondent already approached the Family Court for the same relief.
23.12.2022 Internet : Yes Index : Yes/No Speaking order/Non-speaking order
rts
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To
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G.K.ILANTHIRAIYAN, J.
rts
C.R.P.No.2328 of 2019 and C.M.P.No.15182 of 2019
23.12.2022
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3 issues framed by the court
Whether a suit for maintenance filed before a civil court is maintainable when it arises from a family dispute between husband and wife.
Whether a civil court possesses jurisdiction to entertain a maintenance petition filed before the establishment of a Family Court.
Whether an interim maintenance order passed by a civil court is sustainable when both suits and related divorce proceedings are pending before the Family Court.
Colour shows how this judgement treated each authority
N.Rajendran Vs. S.ValliExplained¶91
MANU/SC/0162/2022
4 provisions across 3 enactments
I.S.Selvagandhi
K.G.Umasankari
G.K.ILANTHIRAIYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
