Partly allowed

Rajendrajit Debbarma v. Sandeep Debbarma and Ors.

Tripura HC12 Sept 2017CRP/56/2017

Case brief

AI extract

What is this about?

This revision petition challenges the lower court's refusal to reject a suit filed in Civil Court. The court held that while the Family Courts Act excludes civil court jurisdiction for matters relating to marital status, the lower court erred in believing the specific suit regarding a survival certificate fell within this exclusivity, thus allowing the Civil Court to entertain it.

What did the court decide?

The impugned order dated 12-4-2017 refusing to reject the plaint is set aside. The Civil Court's jurisdiction to entertain the suit is confirmed.

Rajendrajit Debbarma Vs Sandeep… — Constitutional and Fundamental Rights | Tripura HC (2017)

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CRP No.56/2017

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B E F O R E

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THE HON’BLE THE CHIEF JUSTICE MR. T. VAIPHEI

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Present :

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For the petitioner : Mr. K.N. Bhattacharjee, Sr. Advocate. Mr. P. Saha, Advocate. For the respondent Nos.2, 3 &4 : Mr. T.D. Majumder, GA. For the respondent No.5 : Mr. D. Sarma, Advocate.

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12.09.2017.

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The sole question for consideration in this revision petition is whether the learned Civil Judge (Senior Division), Court No. 2, West Tripura is correct in holding that the suit for declaring the survival certificate issued by the Sub-Divisional Magistrate, Sadar in favour of the respondent No. 1 is not barred by Section 7(b) and Section 8 of the Family Courts Act, 1984 and in refusing to reject the plaint therefor.

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The controversy arose on the following circumstances:-

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The respondent No. 1 instituted T.S. No. 101 of 2015 before the learned Civil Judge for a decree to cancel the Survival Certificate dated 17-5-2012 issued by the SDM in favor of the petitioner on the ground that the deceased had divorced him before her death and that the survival certificate could not, as such, be issued in his favour. The prayer of the respondent No. 1 made before the SDM to cancel the Survival Certificate issued by him earlier should be cancelled, was refused by him by the order dated 19-9-2014 whereupon the suit was instituted by the respondent No. 1. This order of refusal had never been challenged by the respondent No. 1 before any higher authority. The suit was contested by the petitioner by denying all the averments made by the respondent No. 1. The petitioner denied the claim of the respondent No. 1 that the respondent No. 1 is the adopted son of the deceased. The petitioner contended before the learned Civil Judge that the question of divorce and adoption are triable only by a Family Court constituted under the Family Courts Act, 1984 (“the Act” for short) and not by a civil court, and the suit filed by the respondent No. 1 was,

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therefore, barred by Sections 7(b) and 8 of the Act. Rejecting the contention of the petitioner, the learned Civil Judge passed the impugned order as noticed earlier. The reasoning of the learned Civil Judge is as follows:

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“On perusal the plaint of the plaintiff (respondent 1 herein), it reveals that plaintiff prays for decree declaring the Survival Certificate issued by the SDM, Sadar vide No. F.5(29)-SDM/SDR/GL/12564, dated 175-2012 in favour of the defendant No. 2 (petitioner herein) to be void and inoperative along with other prayers/reliefs.

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Though Sec. 7, Explanation to the Sub-Sec. 1 of the Family Courts Act lays down that a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person the jurisdiction lies with the Family Court but in the present suit, this court finds that the prayers of the plaintiff are not relating to declaration to the validity of marriage as well as matrimonial status of the defendant No. 2.”

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The learned Civil Judge in rejecting the prayer for rejecting the plaint also took into account the fact that apart from the petitioner, the State of Tripura, DM & Collector, SDM, Sadar and Branch Manager, UCO Bank were also impleaded as party-defendants, and the objection of the respondent No. 1 was, therefore, misconceived when the suit was not only between him and the respondent No. 1 but also between him and other defendants as well. Section 7(b) and Section 8 of the Act are in the following terms:

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“7. Jurisdiction .— (1) Subject to the other provisions

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of this Act, a Family Court shall—

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( 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

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( 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.

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Explanation .—The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:—

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( 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;

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( b ) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

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( 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 of proceeding for an order or injunction in circumstances arising out of a marital relationship;

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( e ) a suit of proceeding for a declaration as to the legitimacy of any person;

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( f ) a suit or proceeding for maintenance;

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( g ) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

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(2) Subject to the other provisions of this Act, a

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Family Court shall also have and exercise—

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( a ) the Jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children

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and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

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( b ) such other jurisdiction as may be conferred on it by any other enactment.

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8. Exclusion of jurisdiction and pending

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proceedings .—Where a Family Court has been established for any area,—

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( 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;

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( 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);

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( 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),—

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( 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

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( 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,

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shall stand transferred to such Family Court on the date on which it is established.”

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In K.A. Abdul Jaleel v. TA Shahida, (2003) 4 SCC 166 , the three Judge-Bench of the Apex Court holding that the wording “disputes relating to marriage and family affairs and for matters connected therewith” must be given a broad construction, gave an expanded jurisdiction to the Family Court constituted under the Act in the following terms:

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“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.

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11. The fact of the matter, as noticed hereinbefore, clearly shows that the dispute between the parties to the marriage arose out of the properties claimed by one spouse against the other. The respondent herein made a categorical statement to the effect that the properties were purchased out of the amount paid in cash or by way of ornaments and the source of consideration for purchasing the properties described in Schedules „A‟ and „B‟ of the suit having been borne out of the same, the appellant herein was merely a trustee in relation thereto and could not have claimed any independent interest thereupon. It is also apparent that whereas the agreement marked as Exhibit A-1 was executed on 17-9-1994, the appellant

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pronounced talaq on 1-11-1995. 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 hereinbefore, 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.

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12. The submission of the learned counsel to the effect that this Court should read the words “a suit or proceeding between the parties to a marriage” as parties to a subsisting marriage, in our considered view would lead to miscarriage of justice.

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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.

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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.

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15. In Amjum Hasan Siddiqui case¹ an application was filed in terms of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The question before the Allahabad High Court arose as to whether a

1 AIR 1992 ALL 322

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Family Court could deal with such a dispute. It was held that no application could lie before the Family Court as the claim under Section 3 of the 1986 Act would neither be a suit nor a proceeding within the meaning of Section 7 of the Family Courts Act inasmuch as such an application could only be moved before the First Class Magistrate having requisite jurisdiction as provided for in the Code of Criminal Procedure. The said decision, in our opinion, cannot be said to have any application whatsoever in the instant case.

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16. In P. Jayalakshmi v. V. Revichandran⁴ the Andhra Pradesh High Court was dealing with a case under Section 125 of the Code of Criminal Procedure. It was held that although the matrimonial proceeding was moved before the Family Court, the same could not have provided for a legal bar for the wife and the minor child for instituting a proceeding under Section 125 of the Code of Criminal Procedure at Tirupathi where they were residing; as both the rights are separate.

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17. As indicated hereinbefore, Balakrishnan, J. (as His Lordship then was) speaking for a Division Bench in a matter arising out of a preliminary issue on the question of jurisdiction held that the dispute over properties between parties to a marriage cannot be confined to the parties to a subsisting marriage. We agree with the said view. The said decision being inter partes and having attained finality would operate as res judicata.”

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In my opinion, in the light of the law laid down by the Apex Court in KA Abdul Jaleel (supra) case, there can be no two opinion that the suit instituted by the respondent No. 1 before the learned Civil Judge (Senior Division) comes within the purview of Section 7 of the Act and the jurisdiction of the learned Civil Judge to entertain such a suit stands excluded. The dispute is essentially about the marital status of the petitioner vis-à-vis the late Smt. Kshanika Debbarma. The learned Civil

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4 AIR 1992 AP 190

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Judge has exceeded its jurisdiction, or has no jurisdiction, to entertain the suit. Consequently, the learned Civil Judge is not correct in rejecting the plaint filed by the respondent No. 1.

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For what has been stated in the foregoing, this revision petition succeeds. The impugned order dated 12-4-2017 refusing to reject the plaint is, accordingly, set aside. No cost.

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CHIEF JUSTICE

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Rajendrajit Debbarma v. Sandeep Debbarma and Ors.

Case brief

What is this about?

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Rajendrajit Debbarma v. Sandeep Debbarma and Ors.

Case brief

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