Family court sec. 7, 10 r/w sec.26 of C.P.C and Or. 7 rule 11 C.P.C. and Section 114 r/w Order XLVII CPC..- Jurisdiction of family court - No condition precedent that a party to the marriage must hold rights vis-vis a property as on the date of institution of proceedings - wife filed a suit against husband and purchasers for declaration and cancellation and for injunction in family court - Respondents filed an I.A.for return of O.P. as no property was held by the spouse at the time of filing of suit in family court - Trial court allowed the I.A. - Revision allowed - Revision basing on Apex court judgment - and allowed the revision holding that as per Apex court that for filing of O.P., it is not necessary that a party to the marriage must hold rights vis--vis a property as on the date of institution of the proceedings and that the provisions of the Act must be construed liberally and the effort must be to sustain the jurisdiction of the Family Court than to oust the jurisdiction. = Anjana Taggarse Motupalli and others.. Petitioners Sri Sreenivas Motupalli and others..Respondents = 2014 ( January part )judis.nic.in/judis_andhra/filename=10772
Family court sec. 7, 10 r/w sec.26 of C.P.C and Or. 7 rule 11 C.P.C. and Section 114 r/w Order XLVII CPC..- Jurisdiction of family court - No condition precedent that a party to the marriage must hold rights vis-vis a property as on the date of institution of proceedings - wife filed a suit against husband and purchasers for declaration and cancellation and for injunction in family court - Respondents filed an I.A.for return of O.P. as no property was held by the spouse at the time of filing of suit in family court - Trial court allowed the I.A. - Revision allowed - Revision basing on Apex court judgment - and allowed the revision holding that as per Apex court that for filing of O.P., it is not necessary that a party to the marriage must hold rights vis--vis a property as on the date of institution of the proceedings and that the provisions of the Act must be construed liberally and the effort must be to sustain the jurisdiction of the Family Court than to oust the jurisdiction. =
The petitioners
filed O.P.No.1551 of 2010 in the Family Court, Hyderabad, under Section 7 of the
Family Courts Act (for short 'the Act') r/w Section 26 of CPC, against the
respondents, with a prayer to declare the documents in relation to two items of
property, namely, a house in Road No.10, Jubilee Hills, Hyderabad, constructed
in 680 square yards, and Acs.5.00 of land in Survey No.253 and 255 of Shadnagar
Village, as sham and inoperative in law and to cancel them. Relief of
injunction to restrain the respondents 1 to 3 from executing any documents, that
would have the effect of conferring title on others in respect of the suit
schedule properties was claimed. Direction was also sought against the 1st
respondent requiring him to provide adequate security for the petitioners 2 and
3 to meet the anticipated reasonable expenditure.=
After receiving notices in the I.As and summons in the suit, the respondents 2
and 3 filed I.A.No.1068 of 2010, under Order VII Rule 10 of CPC, with a prayer
to return the petition.
The reason pleaded by them was that Section 7 of the
Act can be invoked by a spouse only in respect of the properties held by either
of the spouses, and since none of the suit schedule properties were owned by the
1st respondent, as on the date of filing of the O.P., it is not maintainable.
Trial allowed the I.A. - Revision filed - Revision was dismissed - Now review basing of Apex court judgment =
Review when applies :-
It is only on limited grounds, such as, where a patent error
of fact or law has crept into the proceedings, or where the view taken by the
Court in the order under review runs contrary to a manifest provision of law or
the judgment of a superior Court; that the feasibility of entertaining the
review can be considered. Otherwise, it should be left open to the party to
avail the remedy of appeal. =
Smt. G. Pentamma and others Vs. G. Anjali and another (AIR 2010 AP
224).
In that case, an O.P. was filed by a female spouse, for declaration that
the petition schedule property therein is jointly owned by her and her husband,
and for a consequential relief of declaration to the effect that the sale deed,
dated 15.05.1998, executed by her husband, is not binding upon her.
The
respondents in that O.P. filed an application, under Order VII Rule 11 of CPC,
with a prayer to reject the plaint, on the ground that the O.P. does not fall
within the purview of Section 7(1) Explanation (c) of the Act, and thereby, the
Family Court does not have jurisdiction. The trial Court rejected the O.P.
Thereupon, a revision was filed.
The learned Judges of this Court, who heard the FCA, which arose against
it, took the same view.
After extracting the provision, their Lordships
observed in para 11 as under:
"The language used in Explanation (c) to Section 7(1) of the Act, 1984 limits
the exclusive jurisdiction of the Family Court to suits pertaining to the
properties of the spouses or either of them as on the date of the institution of
the suit; and the same cannot be enlarged to include properties which had been
held by the spouses or either of them prior to the institution of the suit."
The underlined portion was supplemented the provision, that too, for the purpose
of ousting the jurisdiction of the Court. =
Here itself, it is relevant to take note of the judgment of the Supreme Court in
K. A. Abdul Jaleel Vs. T.A. Shahida1
wherein it is held as under:
"The wordings '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 that the properties claimed by the parties thereto as a
spouse of other, irrespective of the claim whether property is claimed during
the subsistence of a marriage or otherwise.
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.
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 32A 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.
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."
Two propositions emerge from this.
The first is that for filing of O.P., it is
not necessary that a party to the marriage must hold rights vis--vis a property
as on the date of institution of the proceedings.
The second is that the
provisions of the Act must be construed liberally and the effort must be to
sustain the jurisdiction of the Family Court than to oust the jurisdiction.
We
are confident that had the judgment of the Supreme Court been brought to the
Lordships, who decided the Pentamma's case or who passed the order in the
F.C.A., a total different view would have emerged.
It is fairly settled
proposition of law that if an order passed by a Court is contrary to an express
provision of law or a binding precedent, it would certainly constitute a ground
for review.
While examining the application filed
under either under Rule 10 or Rule 11 of Order VII of CPC, the Court has to take
the averments in the plaint or the O.P., as the case may be, on their face
value, and it cannot express any view on the merits at the stage, and then
decide whether or not to return or reject the plaint.
We, therefore, allow the Review Petition and recall the order under review. In
view of the reasons mentioned above, we allow the F.C.A.No.80 of 2011 and set
aside the order, dated 28.03.2011, passed by the trial Court in I.A.No.1068 of
2010 in O.P.No.1551 of 2010. As a result, the I.A.No.1068 of 2010 shall stand
dismissed. The trial Court shall proceed with the O.P., on merits. There shall
be no order as to costs.
2014 ( January part )judis.nic.in/judis_andhra/filename=10772
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL
REVIEW F.C.A.M.P.No.285 of 2012 and batch
02-01-2014
Anjana Taggarse Motupalli and others.. Petitioners
Sri Sreenivas Motupalli and others..Respondents
Counsel for petitioners : Sri L. Ravichander
Counsel for 1st respondent: Sri J. Prabhakar
Counsel for respondents 2 & 3 : Sri K. Ramakrishna Reddy
<GIST:
>HEAD NOTE:
?CASES REFERRED :
1) AIR 2003 SC 2525
2) 1966 SC 1718 & 1963 SC 217
3) AIR 2011 SC 848
4) 1998(5) SCC 310
5) 2009(2) SCC 784
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
REVIEW F.C.A.M.P.No.285 of 2012
in
F.C.A.No.80 of 2011
ORDER : (Per LNR,,J)
This application is filed with a prayer to review the order, dated 29.03.2012,
passed by a Division Bench of this Court in F.C.A.No.80 of 2011.
The brief facts, that gave rise to the filing of the application, are as under:
The marriage between the 1st petitioner and the 1st respondent took place on
01.01.2000, and the petitioners 2 and 3 were born out of their wedlock.
The
respondents 2 and 3 are the parents of the 1st respondent. The petitioners
filed O.P.No.1551 of 2010 in the Family Court, Hyderabad, under Section 7 of the
Family Courts Act (for short 'the Act') r/w Section 26 of CPC, against the
respondents, with a prayer to declare the documents in relation to two items of
property, namely, a house in Road No.10, Jubilee Hills, Hyderabad, constructed
in 680 square yards, and Acs.5.00 of land in Survey No.253 and 255 of Shadnagar
Village, as sham and inoperative in law and to cancel them. Relief of
injunction to restrain the respondents 1 to 3 from executing any documents, that
would have the effect of conferring title on others in respect of the suit
schedule properties was claimed. Direction was also sought against the 1st
respondent requiring him to provide adequate security for the petitioners 2 and
3 to meet the anticipated reasonable expenditure.
The manner in which the 1st petitioner and the 1st respondent got acquainted
with each other and the developments that have taken place thereafter are
narrated in detail in the O.P.
It was pleaded that the 1st respondent, who was
the absolute owner of the property, has executed the documents in question. The
various incidents that have taken place between the parties are also narrated.
In the O.P., the petitioners filed I.A.No.993 of 2010, under Order XXXIX Rules 1
and 2 of CPC, with a prayer to restrain the respondents from transacting,
alienating or encumbering the suit schedule properties. The petitioners also
filed I.A.No.994 of 2010, under the same provision, with a prayer to restrain
the respondents from inducting third parties into the possession of the
properties. The trial Court passed orders of status-quo on 24.11.2010.
After receiving notices in the I.As and summons in the suit, the respondents 2
and 3 filed I.A.No.1068 of 2010, under Order VII Rule 10 of CPC, with a prayer
to return the petition.
The reason pleaded by them was that Section 7 of the
Act can be invoked by a spouse only in respect of the properties held by either
of the spouses, and since none of the suit schedule properties were owned by the
1st respondent, as on the date of filing of the O.P., it is not maintainable.
The petitioners opposed the I.A., by filing a counter. According to them, the
properties were held by the 1st respondent, as on the date of his marriage with
the 1st petitioner, and the very grievance in the suit is about the transactions
that have taken place thereafter.
The petitioners further pleaded that at one
stage, they intended to file a suit and the concerned Court rejected the plaint,
by observing that the jurisdiction of the civil Courts stands taken away, once
the matter is governed by the provisions of the Act.
Through its order, dated 28.03.2011, the trial Court allowed the I.A. and
returned the O.P., for presentation before the proper Court. Aggrieved by that
order, the petitioners filed F.C.A.No.80 of 2011 before this Court. A Division
Bench of this Court dismissed the FCA through order, dated 29.03.2012, and
upheld the order passed by the trial Court. This application is filed with a
prayer to review the order passed by the Division Bench.
The petitioners contend that the view taken by the Division Bench regarding the
purport of Section 7(1) of the Act does not accord with the sprit of the
provision and the interpretation placed upon it, by the Hon'ble Supreme Court.
According to them, it would be sufficient, if an item of property was held by
any of the spouses at the time of their marriage and for raising a dispute in
relation thereto before a Family Court, it is not necessary that the property
must be held by any of them, on the date of filing of the O.P.
The petitioners
further plead that if the property is required to be held by the spouse as a
condition precedent for filing of the O.P., it would render the provision
nugatory and substantial part of genuine disputes would stand excluded from the
purview of the Act.
They contend that the order passed by this Court on
29.03.2012 runs contrary to the very objective, underlying the relevant
provisions and the judgment of the Supreme Court.
A detailed counter affidavit is filed opposing the review petition. It is
pleaded that the review petition is not maintainable, since the Act, under which
the O.P. as well as the F.C.A. were filed, does not confer any power of review
upon this Court. It is stated that when the matter is governed by a special
enactment, a Court, dealing with such matter, cannot be said to be having any
inherent power. Their another contention is that the right of review is a
substantive one, and unless it is conferred by any specific provision of law, it
cannot be inferred. On merits also, the respondents contend that even if it is
possible that there exists a different view on a particular aspect, it would not
constitute a basis for review.
Sri L. Ravichander, learned senior counsel for the petitioners, submits that the
review petition is very much maintainable, under Section 114 r/w Order XLVII
CPC. He submits that the principle that the power of review cannot be
exercised, unless it is conferred by relevant provision of law, is mostly in
relation to administrative and quasi judicial authorities, and that the CPC,
which governs the proceedings before the civil Courts and the appellate Courts,
specifically confers such powers through the provisions referred to above. He
contends that even Section 10 of the Act makes it amply clear that the
procedure, in relation to the proceedings initiated under the Act, would be
governed by the provisions of the CPC to the extent that it is not provided for
differently, by the Act, or the Rules made thereunder.
Learned senior counsel further submits that the Division Bench of this Court,
which passed the order on 29.03.2012, proceeded on the assumption that an item
of property must be held by a spouse as on the date of filing of the O.P., and
the same runs contrary to not only the specific language employed in Section
7(1)(c), but also the interpretation placed upon it, by the Supreme Court. He
submits that the very purpose of conferring jurisdiction upon the Family Court,
in relation to the property disputes between the spouses, is defeated, as a
result of the hyper technical view, taken by the Division Bench.
Sri K. Ramakrishna Reddy, learned senior counsel for the respondents 2 and 3, on
the other hand, submits that the O.P. was filed with an objective of defeating
the rights of the respondents in the concerned properties. He submits that the
review itself is not maintainable, since the special enactment, under which the
proceedings are instituted, does not contain any provision conferring the power
of review. He submits that on merits also, the basic requirement to be stated
in a O.P. filed under Section 7(1)(c) of the Act is that the property was held
by the concerned spouses, as on the date of filing of the proceedings. He
further submits that if the petitioners are of the view that the order passed by
the Division Bench on 29.03.2012 is not correct, they have to avail the remedy
of appeal, and that the review petition is not maintainable.
Sri J. Prabhakar, learned counsel for the 1st respondent, has addressed, almost
the same arguments.
The learned counsel appearing on both sides have relied upon several precedents,
in support of their respective contentions.
Before the matter is discussed on merits, the objection raised, as to the
maintainability of the review petition, needs to be considered.
The petitioners
filed the O.P. before the Family Court, by invoking Section 7(1)(c) of the Act,
with the prayers, the gist of which has already been mentioned in the preceding
paragraphs.
The respondents 2 and 3 filed I.A.No.1068 of 2010, under Order VII
Rule 10 of CPC, with a prayer to return the O.P. for being presented in a proper
forum, obviously a civil Court.
The trial Court allowed the I.A. and the appeal
filed against the same was rejected.
The review petition is filed, by invoking
order XLVII Rule 1 of CPC.
The objection of the learned counsel for the
respondents is that order XLVII, or for that matter, Section 114 of CPC does not
apply to the proceedings instituted under the special enactment.
It is no doubt true that the Act was brought into existence, by the Parliament
with an objective of streamlining the procedure for resolution of matrimonial
disputes between the parties who reside in urban areas and to reduce the rigor
and stringency of certain procedural aspects. At the same time, the Parliament
never intended to put a complete and comprehensive code for resolution of such
disputes in the place of the existing one. Section 7 of the Act is devoted to
delineate the jurisdiction of the Family Courts. The procedural aspects are
dealt with under a separate chapter.
Section 10 thereof reads:
"Procedure generally:- (1) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of
any other law for the time being in force shall apply to the suits and
proceedings (other than the proceedings under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974), before a Family Court and for the purposes of the
said provisions of the Code, Family Court shall be deemed to be a Civil Court
and shall have the powers of such Court.
(2) Subject to the other provisions of this Act and the rules, the provisions of
the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder,
shall apply to the proceedings under Chapter IX of that Code before a Family
Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court
from laying down its own procedure with a view to arrive at a settlement in
respect of the subject matter of the suit or proceedings or at the truth of the
facts alleged by the one Party and denied by the other."
From this, it becomes clear that unless any specific aspect is governed by the
Act itself, the provisions of CPC would apply in relation thereto. Unlike
certain enactments, which restrict the application of CPC for limited purposes,
such as, summoning of witnesses and receiving of documents, the application of
CPC for the proceedings under the Act is not limited. In fact, it covers the
entire residuary field, after excluding the one that is covered by the
provisions of the Act and the Rules made thereunder.
As a matter of fact, it is the respondents, who are clear and conscious about
this legal position. Knowing fully well that the Act and the Rules made
thereunder do not provide for return of the O.P., they invoked Order VII Rule 10
of CPC and filed I.A.No.1068 of 2012. No provision of the Act or the Rules made
thereunder was mentioned, at least, as a supplementary one. The I.A. filed by
them was an application filed under CPC, pure and simple, may be in a O.P. filed
under the Act. The order that emanated from the trial Court in I.A.No.1068 of
2010 in O.P.No.1551 of 2010 cannot be governed by any other provision of law,
except the relevant one in CPC. Invariably, it is Order XLVII r/w Section 114
of CPC, in the context of review.
It is true that in number of judgments, the Supreme Court, or for that matter,
various High Courts, held that the power of review unless conferred, cannot be
exercised, or assumed, through implication. Those, however, are cases that are
in the realm of administrative law. One hardly comes across such a ruling, in
relation to the proceedings that are pending before, or dealt with by, a civil
Court. That the Family Court partakes all the characters of a civil Court, is
kept beyond any pale of doubt, by Section 10 of the Act itself. The
differentiating factor between a civil Court and a Family Court, if at all, is
that in addition to holding the powers of a civil Court, the Family Court
possesses the powers of criminal Courts also in certain matters. The principle
that governs the administrative and
quasi judicial matters cannot be applied to pure and simple civil matters.
Another way of looking at the issue is that irrespective of the provision that
is invoked for filing a suit or a petition in a civil Court, once it is
instituted, it is bound to be regulated by the provisions of CPC. In case the
special enactment, by invoking which, suits or petitions are filed, makes any
deviation from the general procedure prescribed in CPC, only to that extent, the
difference would be visible. While some statutes may be purely substantive in
nature conferring rights upon the persons, others may deal exclusively with
procedure to be followed for enforcing the rights. Third category is the one
that deals with substantive as well as procedural aspects. For instance, the
Specific Relief Act, under which the relief of specific performance can be
claimed or the Transfer of Property Act, that inter alia, provides for different
kinds of transfer of immovable properties are substantive in nature without any
traces of procedural gamut. The second category comprises of statutes like CPC
and Cr.P.C. Even these enactments contain certain provisions, which are partly
substantive. The enactments, such as, Hindu Marriage Act, Hindu Succession Act,
Indian Divorce Act and Indian Succession Act fall into the 3rd category. Though
they contain several substantive provisions, dealing with the rights of the
parties, they also prescribe some special procedures in adjudication thereof.
For example, an O.P. under the Hindu Marriage Act can be filed before a Court
not less than that of a Subordinate Judge and an O.P. under the Indian Divorce
Act can be filed only in a Court of District Judge. The divorce granted under
the Indian Divorce Act is required to be affirmed by a Division Bench. To this
extent, there is deviation from CPC. However, rest of the procedure is governed
by CPC.
Viewed in this context, the Family Courts Act can be said to be a further
improvement or reproduction of the existing enactments dealing with the family
matters, but not a complete substitution for the substantive and procedural laws
that were holding the field earlier to its enactment. Irrespective of the
provision, under which a proceeding is instituted before a civil Court and
landing in that forum, it continues to be governed by the provisions of the CPC.
An appeal against an order passed by a Family Court is filed not under Section
104 r/w Order XLVII of CPC, but under Section 19 of the Act, because the Act
contained a special provision for appeal. By the same reasoning, had there
existed a separate provision for filing of review in the Act, Order XLVIII of
CPC could certainly have been treated as excluded vis--vis such matters. Just
as the petitioners have invoked Order VII Rule 10 of CPC for filing the
petitions, obviously because there is no corresponding provision in the Act, the
petitioners invoked Order XLVIII of CPC for filing the review.
More than all, the contentions, advanced by the respondents would apply to a
review petition, if filed before a Family Court. The present review is before
this Court. By no stretch of imagination or logic, the Act and the Rules made
thereunder would regulate the proceedings before this Court. Section 117 of CPC
makes it clear that CPC applies to the proceedings before High Courts.
Irrespective of the provision under which an appeal or review is filed before a
High Court, procedure in relation to the appeal or review is regulated by CPC.
This includes the one of seeking review. Therefore, the objection cannot be
sustained.
Coming to merits; we are conscious of the fact that the mere existence of a
possibility for taking a different view on an already decided matter; is not a
ground for review. It is only on limited grounds, such as, where a patent error
of fact or law has crept into the proceedings, or where the view taken by the
Court in the order under review runs contrary to a manifest provision of law or
the judgment of a superior Court; that the feasibility of entertaining the
review can be considered. Otherwise, it should be left open to the party to
avail the remedy of appeal. It is not necessary to refer to the catena of
decisions on this aspect. Therefore, it needs to be seen as to whether the view
taken by this Court comes within the parameters referred to above.
The trial Court was mostly guided by the judgment of a learned Single Judge of
this Court
in Smt. G. Pentamma and others Vs. G. Anjali and another (AIR 2010 AP
224).
In that case, an O.P. was filed by a female spouse, for declaration that
the petition schedule property therein is jointly owned by her and her husband,
and for a consequential relief of declaration to the effect that the sale deed,
dated 15.05.1998, executed by her husband, is not binding upon her.
The
respondents in that O.P. filed an application, under Order VII Rule 11 of CPC,
with a prayer to reject the plaint, on the ground that the O.P. does not fall
within the purview of Section 7(1) Explanation (c) of the Act, and thereby, the
Family Court does not have jurisdiction. The trial Court rejected the O.P.
Thereupon, a revision was filed.
The learned Judge took note of the observation of the Kerala High Court in Shyni
Vs. George (AIR 1997 Kerala 231) but distinguished the same. Reliance was
placed upon the judgment of the Karnataka High Court in Genu @ Ganu Vs. Jalabai
(ILR 2009 Karnataka 612). The Karnataka High Court expressed the view that
Clause (c) of Explanation to Section 7(1) can be invoked, when 1) the dispute is
between the parties to the marriage, and 2) the dispute is in respect of the
property of the parties or either of them. With great respect to the learned
Judge of the Karnataka High Court, who delivered the said judgment, it was too
narrow an interpretation placed upon the provision and it would amount to
reading something into a special enactment.
Paragraph 8 of the Judgment in Pentamma's case impressed the trial Court and it
is reproduced in its entirety:
"Therefore, the answer as to whether the present suit falls within the ambit of
Section 7(1) Explanation (c) would have to be culled out from the express
language of the provision itself and no tortuous hermeneutic exercise is called
for. A bare perusal of Explanation (c) indicates that a suit or proceeding
between the husband and wife with respect to their property or the property of
either of them is covered thereunder. In the present case, the property, being
the petition schedule house, stood in the name of the husband though the wife
claims that she contributed a half share towards its construction. This house
was sold in the year 1998 by the husband to his sisters, the petitioners herein.
It is manifest from the record that the husband sought a divorce only in the
year 2002, i.e., long after the execution of the sale deed. Thus, by the time
the wife instituted the subject suit the petition schedule property had long
ceased to be the property of the husband. The question is whether property of
the spouses or either of them as mentioned in Explanation (c) can be held to
include property which had belonged to them earlier and which ceased to be
theirs by the time the suit was instituted. The answer, in my considered view,
must be in the negative. The clear language of the provision lends itself to
only one interpretation that the property should belong to the spouses or either
of them as on the date of institution of the suit. It is not for this Court to
legislate and add something extra to the provision thereby bringing within its
ambit not only the property possessed as on the date of the suit but also the
properties owned by the spouses or either of them in the past and
alienated/disposed of prior to the institution of the suit."
This, in a way would amount to adding something to Clause (c) of Section 7 (1)
of the Act. The relevant clause of the Explanation reads as under:
"Section 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 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) ......
b) ......
c) a suit or proceeding between the parties to a marriage with respect to the
property of the parties or of either of them."
With the interpretation placed on the provision therein, the phrase "property of
the parties" occurring in the Clause (c) of Explanation has to be read as
"property belonging to the spouses or either of them as on the date of
institution of the suit".
When the trial Court did not indicate such restrictions, be it as to the
nature of rights or the point of time, it is not for this Court to burden the
provision with such restrictions.
The learned Judges of this Court, who heard the FCA, which arose against
it, took the same view.
After extracting the provision, their Lordships
observed in para 11 as under:
"The language used in Explanation (c) to Section 7(1) of the Act, 1984 limits
the exclusive jurisdiction of the Family Court to suits pertaining to the
properties of the spouses or either of them as on the date of the institution of
the suit; and the same cannot be enlarged to include properties which had been
held by the spouses or either of them prior to the institution of the suit."
The underlined portion was supplemented the provision, that too, for the purpose
of ousting the jurisdiction of the Court.
Here itself, it is relevant to take note of the judgment of the Supreme Court in
K. A. Abdul Jaleel Vs. T.A. Shahida1 wherein it is held as under:
"The wordings '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 that the properties claimed by the parties thereto as a
spouse of other, irrespective of the claim whether property is claimed during
the subsistence of a marriage or otherwise.
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.
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 32A 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.
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."
Two propositions emerge from this.
The first is that for filing of O.P., it is
not necessary that a party to the marriage must hold rights vis--vis a property
as on the date of institution of the proceedings.
The second is that the
provisions of the Act must be construed liberally and the effort must be to
sustain the jurisdiction of the Family Court than to oust the jurisdiction. We
are confident that had the judgment of the Supreme Court been brought to the
Lordships, who decided the Pentamma's case or who passed the order in the
F.C.A., a total different view would have emerged.
It is fairly settled
proposition of law that if an order passed by a Court is contrary to an express
provision of law or a binding precedent, it would certainly constitute a ground
for review.
If a statute has conferred jurisdiction upon a Court or Forum in relation
to a particular category of matters, the Forum or court, as the case may be,
must be loath to forego its jurisdiction, even if a second view on that aspect
is possible. It is a different matter that if a particular matter brought
before a Court or Forum is totally outside its jurisdiction, it must refuse to
entertain the same. However, where a doubt arises as to whether adjudication of
a particular matter is within its jurisdiction, the Court or Forum must show
inclination in favour of retaining the jurisdiction than to abdicate the same,
on the basis of a doubt or suspicion. Questions of this nature generally arise
in relation to the conferment of jurisdiction on special Courts or Tribunals, by
denuding the regular civil Courts, of such jurisdiction. Even in such cases,
emphasis is to assert jurisdiction by the concerned Forum.
There is also a line of thought, which suggests that the provisions
excluding the jurisdiction of a civil Court and conferring the same on
authorities and Tribunals other than civil Courts must be construed strictly.
Reference in this context may be made to the judgment of the Supreme Court in
Abdul Waheed Khan Vs. Bhavani2. In the context of the present case, such a
dichotomy does not exist. This is not a case where jurisdiction of an ordinary
civil Court is sought to be conferred upon a specialized Tribunal which does not
partake any characteristics of civil Court. Family Courts are constituted under
the Act, almost as a matter of convenience, that too, for the benefit of the
people, who reside in urban areas. The same provisions of law are enforced by
the civil Court as well as the Family Courts. Any doubt that exists in the
minds of the people as to the nature of the family Court is taken away by
Section 10 which makes it clear that the Family Court is also a civil Court. The
judgment of the Supreme Court in S.D. Joshi and others Vs. High Court of
Judicature of Bombay and others3, relied upon by the respondents is in a totally
different context. In the State of Maharashtra, the Family Judges are appointed
through a procedure which different from the one, for appointment of District
Judges. The question before the Supreme Court was as to whether the family
Judges can be treated on par with District Judges, in the context of appointment
as Judges of High Court. It was not at all about the purport of Section 7 of
the Act.
In the instant case, the trial Court as well as this Court sought to
restrict the scope of Section 7(1)(c). The view taken by the trial Court and
this Court would have been possible, if only the expression "in their possession
as on the date of filing of the petition" were to have been added to Section
7(1)(c).
Reliance is placed upon the judgments of the Supreme Court in World Tanker
Carrier Corporation Vs. SNP Shipping Services Pvt. Ltd.4 and Tamilnadu
Mercantile Bank Share Holders' Welfare Association Vs. S.C. Sekar and others5,
alleging that the filing of O.P. amounts to forum shopping. When the Act
clearly confers jurisdiction on a Court, the question of forum shopping does not
arise.
Though the learned counsel for the parties cited some more precedents, we
are not referring to them, since they may not be of immediate relevance to the
facts of this case.
Whether or not the petitioners are able to prove their case before the Family
Court is a different aspect altogether. While examining the application filed
under either under Rule 10 or Rule 11 of Order VII of CPC, the Court has to take
the averments in the plaint or the O.P., as the case may be, on their face
value, and it cannot express any view on the merits at the stage, and then
decide whether or not to return or reject the plaint.
We, therefore, allow the Review Petition and recall the order under review. In
view of the reasons mentioned above, we allow the F.C.A.No.80 of 2011 and set
aside the order, dated 28.03.2011, passed by the trial Court in I.A.No.1068 of
2010 in O.P.No.1551 of 2010. As a result, the I.A.No.1068 of 2010 shall stand
dismissed. The trial Court shall proceed with the O.P., on merits. There shall
be no order as to costs.
The Miscellaneous Petitions filed in the review petition shall stand
disposed of.
______________________
L. NARASIMHA REDDY, J.
_______________
M.S.K. JAISWAL,J.
2nd January, 2014
The petitioners
filed O.P.No.1551 of 2010 in the Family Court, Hyderabad, under Section 7 of the
Family Courts Act (for short 'the Act') r/w Section 26 of CPC, against the
respondents, with a prayer to declare the documents in relation to two items of
property, namely, a house in Road No.10, Jubilee Hills, Hyderabad, constructed
in 680 square yards, and Acs.5.00 of land in Survey No.253 and 255 of Shadnagar
Village, as sham and inoperative in law and to cancel them. Relief of
injunction to restrain the respondents 1 to 3 from executing any documents, that
would have the effect of conferring title on others in respect of the suit
schedule properties was claimed. Direction was also sought against the 1st
respondent requiring him to provide adequate security for the petitioners 2 and
3 to meet the anticipated reasonable expenditure.=
After receiving notices in the I.As and summons in the suit, the respondents 2
and 3 filed I.A.No.1068 of 2010, under Order VII Rule 10 of CPC, with a prayer
to return the petition.
The reason pleaded by them was that Section 7 of the
Act can be invoked by a spouse only in respect of the properties held by either
of the spouses, and since none of the suit schedule properties were owned by the
1st respondent, as on the date of filing of the O.P., it is not maintainable.
Trial allowed the I.A. - Revision filed - Revision was dismissed - Now review basing of Apex court judgment =
Review when applies :-
It is only on limited grounds, such as, where a patent error
of fact or law has crept into the proceedings, or where the view taken by the
Court in the order under review runs contrary to a manifest provision of law or
the judgment of a superior Court; that the feasibility of entertaining the
review can be considered. Otherwise, it should be left open to the party to
avail the remedy of appeal. =
Smt. G. Pentamma and others Vs. G. Anjali and another (AIR 2010 AP
224).
In that case, an O.P. was filed by a female spouse, for declaration that
the petition schedule property therein is jointly owned by her and her husband,
and for a consequential relief of declaration to the effect that the sale deed,
dated 15.05.1998, executed by her husband, is not binding upon her.
The
respondents in that O.P. filed an application, under Order VII Rule 11 of CPC,
with a prayer to reject the plaint, on the ground that the O.P. does not fall
within the purview of Section 7(1) Explanation (c) of the Act, and thereby, the
Family Court does not have jurisdiction. The trial Court rejected the O.P.
Thereupon, a revision was filed.
The learned Judges of this Court, who heard the FCA, which arose against
it, took the same view.
After extracting the provision, their Lordships
observed in para 11 as under:
"The language used in Explanation (c) to Section 7(1) of the Act, 1984 limits
the exclusive jurisdiction of the Family Court to suits pertaining to the
properties of the spouses or either of them as on the date of the institution of
the suit; and the same cannot be enlarged to include properties which had been
held by the spouses or either of them prior to the institution of the suit."
The underlined portion was supplemented the provision, that too, for the purpose
of ousting the jurisdiction of the Court. =
Here itself, it is relevant to take note of the judgment of the Supreme Court in
K. A. Abdul Jaleel Vs. T.A. Shahida1
wherein it is held as under:
"The wordings '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 that the properties claimed by the parties thereto as a
spouse of other, irrespective of the claim whether property is claimed during
the subsistence of a marriage or otherwise.
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.
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 32A 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.
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."
Two propositions emerge from this.
The first is that for filing of O.P., it is
not necessary that a party to the marriage must hold rights vis--vis a property
as on the date of institution of the proceedings.
The second is that the
provisions of the Act must be construed liberally and the effort must be to
sustain the jurisdiction of the Family Court than to oust the jurisdiction.
We
are confident that had the judgment of the Supreme Court been brought to the
Lordships, who decided the Pentamma's case or who passed the order in the
F.C.A., a total different view would have emerged.
It is fairly settled
proposition of law that if an order passed by a Court is contrary to an express
provision of law or a binding precedent, it would certainly constitute a ground
for review.
While examining the application filed
under either under Rule 10 or Rule 11 of Order VII of CPC, the Court has to take
the averments in the plaint or the O.P., as the case may be, on their face
value, and it cannot express any view on the merits at the stage, and then
decide whether or not to return or reject the plaint.
We, therefore, allow the Review Petition and recall the order under review. In
view of the reasons mentioned above, we allow the F.C.A.No.80 of 2011 and set
aside the order, dated 28.03.2011, passed by the trial Court in I.A.No.1068 of
2010 in O.P.No.1551 of 2010. As a result, the I.A.No.1068 of 2010 shall stand
dismissed. The trial Court shall proceed with the O.P., on merits. There shall
be no order as to costs.
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL
REVIEW F.C.A.M.P.No.285 of 2012 and batch
02-01-2014
Anjana Taggarse Motupalli and others.. Petitioners
Sri Sreenivas Motupalli and others..Respondents
Counsel for petitioners : Sri L. Ravichander
Counsel for 1st respondent: Sri J. Prabhakar
Counsel for respondents 2 & 3 : Sri K. Ramakrishna Reddy
<GIST:
>HEAD NOTE:
?CASES REFERRED :
1) AIR 2003 SC 2525
2) 1966 SC 1718 & 1963 SC 217
3) AIR 2011 SC 848
4) 1998(5) SCC 310
5) 2009(2) SCC 784
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
REVIEW F.C.A.M.P.No.285 of 2012
in
F.C.A.No.80 of 2011
ORDER : (Per LNR,,J)
This application is filed with a prayer to review the order, dated 29.03.2012,
passed by a Division Bench of this Court in F.C.A.No.80 of 2011.
The brief facts, that gave rise to the filing of the application, are as under:
The marriage between the 1st petitioner and the 1st respondent took place on
01.01.2000, and the petitioners 2 and 3 were born out of their wedlock.
The
respondents 2 and 3 are the parents of the 1st respondent. The petitioners
filed O.P.No.1551 of 2010 in the Family Court, Hyderabad, under Section 7 of the
Family Courts Act (for short 'the Act') r/w Section 26 of CPC, against the
respondents, with a prayer to declare the documents in relation to two items of
property, namely, a house in Road No.10, Jubilee Hills, Hyderabad, constructed
in 680 square yards, and Acs.5.00 of land in Survey No.253 and 255 of Shadnagar
Village, as sham and inoperative in law and to cancel them. Relief of
injunction to restrain the respondents 1 to 3 from executing any documents, that
would have the effect of conferring title on others in respect of the suit
schedule properties was claimed. Direction was also sought against the 1st
respondent requiring him to provide adequate security for the petitioners 2 and
3 to meet the anticipated reasonable expenditure.
The manner in which the 1st petitioner and the 1st respondent got acquainted
with each other and the developments that have taken place thereafter are
narrated in detail in the O.P.
It was pleaded that the 1st respondent, who was
the absolute owner of the property, has executed the documents in question. The
various incidents that have taken place between the parties are also narrated.
In the O.P., the petitioners filed I.A.No.993 of 2010, under Order XXXIX Rules 1
and 2 of CPC, with a prayer to restrain the respondents from transacting,
alienating or encumbering the suit schedule properties. The petitioners also
filed I.A.No.994 of 2010, under the same provision, with a prayer to restrain
the respondents from inducting third parties into the possession of the
properties. The trial Court passed orders of status-quo on 24.11.2010.
After receiving notices in the I.As and summons in the suit, the respondents 2
and 3 filed I.A.No.1068 of 2010, under Order VII Rule 10 of CPC, with a prayer
to return the petition.
The reason pleaded by them was that Section 7 of the
Act can be invoked by a spouse only in respect of the properties held by either
of the spouses, and since none of the suit schedule properties were owned by the
1st respondent, as on the date of filing of the O.P., it is not maintainable.
The petitioners opposed the I.A., by filing a counter. According to them, the
properties were held by the 1st respondent, as on the date of his marriage with
the 1st petitioner, and the very grievance in the suit is about the transactions
that have taken place thereafter.
The petitioners further pleaded that at one
stage, they intended to file a suit and the concerned Court rejected the plaint,
by observing that the jurisdiction of the civil Courts stands taken away, once
the matter is governed by the provisions of the Act.
Through its order, dated 28.03.2011, the trial Court allowed the I.A. and
returned the O.P., for presentation before the proper Court. Aggrieved by that
order, the petitioners filed F.C.A.No.80 of 2011 before this Court. A Division
Bench of this Court dismissed the FCA through order, dated 29.03.2012, and
upheld the order passed by the trial Court. This application is filed with a
prayer to review the order passed by the Division Bench.
The petitioners contend that the view taken by the Division Bench regarding the
purport of Section 7(1) of the Act does not accord with the sprit of the
provision and the interpretation placed upon it, by the Hon'ble Supreme Court.
According to them, it would be sufficient, if an item of property was held by
any of the spouses at the time of their marriage and for raising a dispute in
relation thereto before a Family Court, it is not necessary that the property
must be held by any of them, on the date of filing of the O.P.
The petitioners
further plead that if the property is required to be held by the spouse as a
condition precedent for filing of the O.P., it would render the provision
nugatory and substantial part of genuine disputes would stand excluded from the
purview of the Act.
They contend that the order passed by this Court on
29.03.2012 runs contrary to the very objective, underlying the relevant
provisions and the judgment of the Supreme Court.
A detailed counter affidavit is filed opposing the review petition. It is
pleaded that the review petition is not maintainable, since the Act, under which
the O.P. as well as the F.C.A. were filed, does not confer any power of review
upon this Court. It is stated that when the matter is governed by a special
enactment, a Court, dealing with such matter, cannot be said to be having any
inherent power. Their another contention is that the right of review is a
substantive one, and unless it is conferred by any specific provision of law, it
cannot be inferred. On merits also, the respondents contend that even if it is
possible that there exists a different view on a particular aspect, it would not
constitute a basis for review.
Sri L. Ravichander, learned senior counsel for the petitioners, submits that the
review petition is very much maintainable, under Section 114 r/w Order XLVII
CPC. He submits that the principle that the power of review cannot be
exercised, unless it is conferred by relevant provision of law, is mostly in
relation to administrative and quasi judicial authorities, and that the CPC,
which governs the proceedings before the civil Courts and the appellate Courts,
specifically confers such powers through the provisions referred to above. He
contends that even Section 10 of the Act makes it amply clear that the
procedure, in relation to the proceedings initiated under the Act, would be
governed by the provisions of the CPC to the extent that it is not provided for
differently, by the Act, or the Rules made thereunder.
Learned senior counsel further submits that the Division Bench of this Court,
which passed the order on 29.03.2012, proceeded on the assumption that an item
of property must be held by a spouse as on the date of filing of the O.P., and
the same runs contrary to not only the specific language employed in Section
7(1)(c), but also the interpretation placed upon it, by the Supreme Court. He
submits that the very purpose of conferring jurisdiction upon the Family Court,
in relation to the property disputes between the spouses, is defeated, as a
result of the hyper technical view, taken by the Division Bench.
Sri K. Ramakrishna Reddy, learned senior counsel for the respondents 2 and 3, on
the other hand, submits that the O.P. was filed with an objective of defeating
the rights of the respondents in the concerned properties. He submits that the
review itself is not maintainable, since the special enactment, under which the
proceedings are instituted, does not contain any provision conferring the power
of review. He submits that on merits also, the basic requirement to be stated
in a O.P. filed under Section 7(1)(c) of the Act is that the property was held
by the concerned spouses, as on the date of filing of the proceedings. He
further submits that if the petitioners are of the view that the order passed by
the Division Bench on 29.03.2012 is not correct, they have to avail the remedy
of appeal, and that the review petition is not maintainable.
Sri J. Prabhakar, learned counsel for the 1st respondent, has addressed, almost
the same arguments.
The learned counsel appearing on both sides have relied upon several precedents,
in support of their respective contentions.
Before the matter is discussed on merits, the objection raised, as to the
maintainability of the review petition, needs to be considered.
The petitioners
filed the O.P. before the Family Court, by invoking Section 7(1)(c) of the Act,
with the prayers, the gist of which has already been mentioned in the preceding
paragraphs.
The respondents 2 and 3 filed I.A.No.1068 of 2010, under Order VII
Rule 10 of CPC, with a prayer to return the O.P. for being presented in a proper
forum, obviously a civil Court.
The trial Court allowed the I.A. and the appeal
filed against the same was rejected.
The review petition is filed, by invoking
order XLVII Rule 1 of CPC.
The objection of the learned counsel for the
respondents is that order XLVII, or for that matter, Section 114 of CPC does not
apply to the proceedings instituted under the special enactment.
It is no doubt true that the Act was brought into existence, by the Parliament
with an objective of streamlining the procedure for resolution of matrimonial
disputes between the parties who reside in urban areas and to reduce the rigor
and stringency of certain procedural aspects. At the same time, the Parliament
never intended to put a complete and comprehensive code for resolution of such
disputes in the place of the existing one. Section 7 of the Act is devoted to
delineate the jurisdiction of the Family Courts. The procedural aspects are
dealt with under a separate chapter.
Section 10 thereof reads:
"Procedure generally:- (1) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of
any other law for the time being in force shall apply to the suits and
proceedings (other than the proceedings under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974), before a Family Court and for the purposes of the
said provisions of the Code, Family Court shall be deemed to be a Civil Court
and shall have the powers of such Court.
(2) Subject to the other provisions of this Act and the rules, the provisions of
the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder,
shall apply to the proceedings under Chapter IX of that Code before a Family
Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court
from laying down its own procedure with a view to arrive at a settlement in
respect of the subject matter of the suit or proceedings or at the truth of the
facts alleged by the one Party and denied by the other."
From this, it becomes clear that unless any specific aspect is governed by the
Act itself, the provisions of CPC would apply in relation thereto. Unlike
certain enactments, which restrict the application of CPC for limited purposes,
such as, summoning of witnesses and receiving of documents, the application of
CPC for the proceedings under the Act is not limited. In fact, it covers the
entire residuary field, after excluding the one that is covered by the
provisions of the Act and the Rules made thereunder.
As a matter of fact, it is the respondents, who are clear and conscious about
this legal position. Knowing fully well that the Act and the Rules made
thereunder do not provide for return of the O.P., they invoked Order VII Rule 10
of CPC and filed I.A.No.1068 of 2012. No provision of the Act or the Rules made
thereunder was mentioned, at least, as a supplementary one. The I.A. filed by
them was an application filed under CPC, pure and simple, may be in a O.P. filed
under the Act. The order that emanated from the trial Court in I.A.No.1068 of
2010 in O.P.No.1551 of 2010 cannot be governed by any other provision of law,
except the relevant one in CPC. Invariably, it is Order XLVII r/w Section 114
of CPC, in the context of review.
It is true that in number of judgments, the Supreme Court, or for that matter,
various High Courts, held that the power of review unless conferred, cannot be
exercised, or assumed, through implication. Those, however, are cases that are
in the realm of administrative law. One hardly comes across such a ruling, in
relation to the proceedings that are pending before, or dealt with by, a civil
Court. That the Family Court partakes all the characters of a civil Court, is
kept beyond any pale of doubt, by Section 10 of the Act itself. The
differentiating factor between a civil Court and a Family Court, if at all, is
that in addition to holding the powers of a civil Court, the Family Court
possesses the powers of criminal Courts also in certain matters. The principle
that governs the administrative and
quasi judicial matters cannot be applied to pure and simple civil matters.
Another way of looking at the issue is that irrespective of the provision that
is invoked for filing a suit or a petition in a civil Court, once it is
instituted, it is bound to be regulated by the provisions of CPC. In case the
special enactment, by invoking which, suits or petitions are filed, makes any
deviation from the general procedure prescribed in CPC, only to that extent, the
difference would be visible. While some statutes may be purely substantive in
nature conferring rights upon the persons, others may deal exclusively with
procedure to be followed for enforcing the rights. Third category is the one
that deals with substantive as well as procedural aspects. For instance, the
Specific Relief Act, under which the relief of specific performance can be
claimed or the Transfer of Property Act, that inter alia, provides for different
kinds of transfer of immovable properties are substantive in nature without any
traces of procedural gamut. The second category comprises of statutes like CPC
and Cr.P.C. Even these enactments contain certain provisions, which are partly
substantive. The enactments, such as, Hindu Marriage Act, Hindu Succession Act,
Indian Divorce Act and Indian Succession Act fall into the 3rd category. Though
they contain several substantive provisions, dealing with the rights of the
parties, they also prescribe some special procedures in adjudication thereof.
For example, an O.P. under the Hindu Marriage Act can be filed before a Court
not less than that of a Subordinate Judge and an O.P. under the Indian Divorce
Act can be filed only in a Court of District Judge. The divorce granted under
the Indian Divorce Act is required to be affirmed by a Division Bench. To this
extent, there is deviation from CPC. However, rest of the procedure is governed
by CPC.
Viewed in this context, the Family Courts Act can be said to be a further
improvement or reproduction of the existing enactments dealing with the family
matters, but not a complete substitution for the substantive and procedural laws
that were holding the field earlier to its enactment. Irrespective of the
provision, under which a proceeding is instituted before a civil Court and
landing in that forum, it continues to be governed by the provisions of the CPC.
An appeal against an order passed by a Family Court is filed not under Section
104 r/w Order XLVII of CPC, but under Section 19 of the Act, because the Act
contained a special provision for appeal. By the same reasoning, had there
existed a separate provision for filing of review in the Act, Order XLVIII of
CPC could certainly have been treated as excluded vis--vis such matters. Just
as the petitioners have invoked Order VII Rule 10 of CPC for filing the
petitions, obviously because there is no corresponding provision in the Act, the
petitioners invoked Order XLVIII of CPC for filing the review.
More than all, the contentions, advanced by the respondents would apply to a
review petition, if filed before a Family Court. The present review is before
this Court. By no stretch of imagination or logic, the Act and the Rules made
thereunder would regulate the proceedings before this Court. Section 117 of CPC
makes it clear that CPC applies to the proceedings before High Courts.
Irrespective of the provision under which an appeal or review is filed before a
High Court, procedure in relation to the appeal or review is regulated by CPC.
This includes the one of seeking review. Therefore, the objection cannot be
sustained.
Coming to merits; we are conscious of the fact that the mere existence of a
possibility for taking a different view on an already decided matter; is not a
ground for review. It is only on limited grounds, such as, where a patent error
of fact or law has crept into the proceedings, or where the view taken by the
Court in the order under review runs contrary to a manifest provision of law or
the judgment of a superior Court; that the feasibility of entertaining the
review can be considered. Otherwise, it should be left open to the party to
avail the remedy of appeal. It is not necessary to refer to the catena of
decisions on this aspect. Therefore, it needs to be seen as to whether the view
taken by this Court comes within the parameters referred to above.
The trial Court was mostly guided by the judgment of a learned Single Judge of
this Court
in Smt. G. Pentamma and others Vs. G. Anjali and another (AIR 2010 AP
224).
In that case, an O.P. was filed by a female spouse, for declaration that
the petition schedule property therein is jointly owned by her and her husband,
and for a consequential relief of declaration to the effect that the sale deed,
dated 15.05.1998, executed by her husband, is not binding upon her.
The
respondents in that O.P. filed an application, under Order VII Rule 11 of CPC,
with a prayer to reject the plaint, on the ground that the O.P. does not fall
within the purview of Section 7(1) Explanation (c) of the Act, and thereby, the
Family Court does not have jurisdiction. The trial Court rejected the O.P.
Thereupon, a revision was filed.
The learned Judge took note of the observation of the Kerala High Court in Shyni
Vs. George (AIR 1997 Kerala 231) but distinguished the same. Reliance was
placed upon the judgment of the Karnataka High Court in Genu @ Ganu Vs. Jalabai
(ILR 2009 Karnataka 612). The Karnataka High Court expressed the view that
Clause (c) of Explanation to Section 7(1) can be invoked, when 1) the dispute is
between the parties to the marriage, and 2) the dispute is in respect of the
property of the parties or either of them. With great respect to the learned
Judge of the Karnataka High Court, who delivered the said judgment, it was too
narrow an interpretation placed upon the provision and it would amount to
reading something into a special enactment.
Paragraph 8 of the Judgment in Pentamma's case impressed the trial Court and it
is reproduced in its entirety:
"Therefore, the answer as to whether the present suit falls within the ambit of
Section 7(1) Explanation (c) would have to be culled out from the express
language of the provision itself and no tortuous hermeneutic exercise is called
for. A bare perusal of Explanation (c) indicates that a suit or proceeding
between the husband and wife with respect to their property or the property of
either of them is covered thereunder. In the present case, the property, being
the petition schedule house, stood in the name of the husband though the wife
claims that she contributed a half share towards its construction. This house
was sold in the year 1998 by the husband to his sisters, the petitioners herein.
It is manifest from the record that the husband sought a divorce only in the
year 2002, i.e., long after the execution of the sale deed. Thus, by the time
the wife instituted the subject suit the petition schedule property had long
ceased to be the property of the husband. The question is whether property of
the spouses or either of them as mentioned in Explanation (c) can be held to
include property which had belonged to them earlier and which ceased to be
theirs by the time the suit was instituted. The answer, in my considered view,
must be in the negative. The clear language of the provision lends itself to
only one interpretation that the property should belong to the spouses or either
of them as on the date of institution of the suit. It is not for this Court to
legislate and add something extra to the provision thereby bringing within its
ambit not only the property possessed as on the date of the suit but also the
properties owned by the spouses or either of them in the past and
alienated/disposed of prior to the institution of the suit."
This, in a way would amount to adding something to Clause (c) of Section 7 (1)
of the Act. The relevant clause of the Explanation reads as under:
"Section 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 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) ......
b) ......
c) a suit or proceeding between the parties to a marriage with respect to the
property of the parties or of either of them."
With the interpretation placed on the provision therein, the phrase "property of
the parties" occurring in the Clause (c) of Explanation has to be read as
"property belonging to the spouses or either of them as on the date of
institution of the suit".
When the trial Court did not indicate such restrictions, be it as to the
nature of rights or the point of time, it is not for this Court to burden the
provision with such restrictions.
The learned Judges of this Court, who heard the FCA, which arose against
it, took the same view.
After extracting the provision, their Lordships
observed in para 11 as under:
"The language used in Explanation (c) to Section 7(1) of the Act, 1984 limits
the exclusive jurisdiction of the Family Court to suits pertaining to the
properties of the spouses or either of them as on the date of the institution of
the suit; and the same cannot be enlarged to include properties which had been
held by the spouses or either of them prior to the institution of the suit."
The underlined portion was supplemented the provision, that too, for the purpose
of ousting the jurisdiction of the Court.
Here itself, it is relevant to take note of the judgment of the Supreme Court in
K. A. Abdul Jaleel Vs. T.A. Shahida1 wherein it is held as under:
"The wordings '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 that the properties claimed by the parties thereto as a
spouse of other, irrespective of the claim whether property is claimed during
the subsistence of a marriage or otherwise.
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.
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 32A 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.
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."
Two propositions emerge from this.
The first is that for filing of O.P., it is
not necessary that a party to the marriage must hold rights vis--vis a property
as on the date of institution of the proceedings.
The second is that the
provisions of the Act must be construed liberally and the effort must be to
sustain the jurisdiction of the Family Court than to oust the jurisdiction. We
are confident that had the judgment of the Supreme Court been brought to the
Lordships, who decided the Pentamma's case or who passed the order in the
F.C.A., a total different view would have emerged.
It is fairly settled
proposition of law that if an order passed by a Court is contrary to an express
provision of law or a binding precedent, it would certainly constitute a ground
for review.
If a statute has conferred jurisdiction upon a Court or Forum in relation
to a particular category of matters, the Forum or court, as the case may be,
must be loath to forego its jurisdiction, even if a second view on that aspect
is possible. It is a different matter that if a particular matter brought
before a Court or Forum is totally outside its jurisdiction, it must refuse to
entertain the same. However, where a doubt arises as to whether adjudication of
a particular matter is within its jurisdiction, the Court or Forum must show
inclination in favour of retaining the jurisdiction than to abdicate the same,
on the basis of a doubt or suspicion. Questions of this nature generally arise
in relation to the conferment of jurisdiction on special Courts or Tribunals, by
denuding the regular civil Courts, of such jurisdiction. Even in such cases,
emphasis is to assert jurisdiction by the concerned Forum.
There is also a line of thought, which suggests that the provisions
excluding the jurisdiction of a civil Court and conferring the same on
authorities and Tribunals other than civil Courts must be construed strictly.
Reference in this context may be made to the judgment of the Supreme Court in
Abdul Waheed Khan Vs. Bhavani2. In the context of the present case, such a
dichotomy does not exist. This is not a case where jurisdiction of an ordinary
civil Court is sought to be conferred upon a specialized Tribunal which does not
partake any characteristics of civil Court. Family Courts are constituted under
the Act, almost as a matter of convenience, that too, for the benefit of the
people, who reside in urban areas. The same provisions of law are enforced by
the civil Court as well as the Family Courts. Any doubt that exists in the
minds of the people as to the nature of the family Court is taken away by
Section 10 which makes it clear that the Family Court is also a civil Court. The
judgment of the Supreme Court in S.D. Joshi and others Vs. High Court of
Judicature of Bombay and others3, relied upon by the respondents is in a totally
different context. In the State of Maharashtra, the Family Judges are appointed
through a procedure which different from the one, for appointment of District
Judges. The question before the Supreme Court was as to whether the family
Judges can be treated on par with District Judges, in the context of appointment
as Judges of High Court. It was not at all about the purport of Section 7 of
the Act.
In the instant case, the trial Court as well as this Court sought to
restrict the scope of Section 7(1)(c). The view taken by the trial Court and
this Court would have been possible, if only the expression "in their possession
as on the date of filing of the petition" were to have been added to Section
7(1)(c).
Reliance is placed upon the judgments of the Supreme Court in World Tanker
Carrier Corporation Vs. SNP Shipping Services Pvt. Ltd.4 and Tamilnadu
Mercantile Bank Share Holders' Welfare Association Vs. S.C. Sekar and others5,
alleging that the filing of O.P. amounts to forum shopping. When the Act
clearly confers jurisdiction on a Court, the question of forum shopping does not
arise.
Though the learned counsel for the parties cited some more precedents, we
are not referring to them, since they may not be of immediate relevance to the
facts of this case.
Whether or not the petitioners are able to prove their case before the Family
Court is a different aspect altogether. While examining the application filed
under either under Rule 10 or Rule 11 of Order VII of CPC, the Court has to take
the averments in the plaint or the O.P., as the case may be, on their face
value, and it cannot express any view on the merits at the stage, and then
decide whether or not to return or reject the plaint.
We, therefore, allow the Review Petition and recall the order under review. In
view of the reasons mentioned above, we allow the F.C.A.No.80 of 2011 and set
aside the order, dated 28.03.2011, passed by the trial Court in I.A.No.1068 of
2010 in O.P.No.1551 of 2010. As a result, the I.A.No.1068 of 2010 shall stand
dismissed. The trial Court shall proceed with the O.P., on merits. There shall
be no order as to costs.
The Miscellaneous Petitions filed in the review petition shall stand
disposed of.
______________________
L. NARASIMHA REDDY, J.
_______________
M.S.K. JAISWAL,J.
2nd January, 2014
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