P. Srihari Vs. P. Sukunda and Another - Court Judgment

Excerpt:
family - jurisdiction - section 7 of family courts act, 1984 - whether family court established under act got jurisdiction to decide disputes between siblings - held, court had got jurisdiction to try only disputes pertaining to marital relations of husband and wife. - - , concerning property and the case on hand being one such, the family court had clearly no jurisdiction.orderb. subhashan reddy, j.1. this revision under article 227 of the constitution of india is directed against the entertainment of suit in os no.186 of 1998 on the file of the family court, hyderabad, on the premise ]that the said court had no jurisdiction to try the suit and has been wrongly entertained, as the family courts act, 1984 (hereinafter referred to as 'the act') has got no application.2. mr. y. vasudeva rao, the learned counsel for the petitioner, submits that the said suit has been filed by the sisters against the brothers and others claiming partition of the property left behind by their father. a petition has been filed under order vii, rules 10 and 10-a read with section 151 of the code of civil procedure by the petitioner herein in the family court to return the plaint for presentation in the proper court, but the same has been dismissed by order dated 6-5-1999 by the judge, family court, hyderabad in ia no.434 of 1999 in os no.186 of 1998.3. ms. anitha ahuja, the learned counsel appearing for the respondents,admits that it is not a marriage dispute. but, she submits that as there is a dispute between the sister and brother regarding property, suit was filed for partition and since the plaintiffs are ladies and as the act has been enacted for the benefit of the ladies, the suit is maintainable before the family court. she submits that since the word 'family' is not defined under the act, the meaning in common parlance has to be taken and if so taken, the suit is maintainable. she also submits that because the act is beneficient in nature, every dispute arising in the family, and not necessarily between the wife and husband, has to be entertained and interpretation has to be liberal in that direction. she has cited a judgment rendered by p. venkatarama reddy j. smt. izzat sultana v. sabir bin yasrab, : 1995(3)alt430 . no doubt, in the said case, the orders directing presentation of the plaint in the family courts was questioned and the same was not found favour with the learned single judge, who directed the civil court to number the suit and dispose of the same on merits. in the said case, the suit was filed by the wife and children against husband for injunction on the basis of the family arrangement made earlier. for the reasons mentioned infra, we do not agree with the said judgment. in fact, the decision of another division bench of this court in mrs. mariamma ninan v. mr. k.k. ninan, : 1997(2)alt268 , arising under the act and concerning the same provision i.e., section 7 of the act is squarely applicable to the facts of this case. in the said case, a dispute arose between wife and husband and relief sought for was for partition and separate possession on the ground that her stridhana money was used for construction of the house which was kept in the name of the husband. when the plaint was presented in the family court, the same was returned to be presented to the civil court aggrieved by which, a crp was filed in this court. a division bench of this court in the case mentioned supra set aside the order of the family court holding that as the dispute was inter se husband and wife and related to property comes within the ambit of clause (c) of explanation to section 7(1) of the act and that only family court had jurisdiction and not the civil court. in r. durga prasad v. union of india, : 1998(2)ald25 , the question for consideration was the constitutional validity of clauses (a) and (b) of explanation to section 7(1) of the act relating to the jurisdiction of the family court for trying the suits between the parties to a marriage. the proposition propounded was that the above statutory provisions are applicable only for admitted marriages and when there is a dispute with regard to their marital status, the suit is not maintainable by the family court and that a common law court has to be approached firstly seeking a declaration with regard to marital status and then for consequential reliefs.4. the object and intendment of the family courts act is to try the family matters arising out of marriages of the parties including the maintenance and adoption of the children as also the dispute relating to property and that is so clear from the preamble of the act itself. even if the preamble cannot be taken to be an absolute guidance for considering the provisions of the act, reading section 7, as a whole, cannot leave any manner of doubt whatsoever that essentially the parties to be husband and wife and may also include children. but, if one of the spouses is absent in the litigation, then it can never be considered as a cause falling within the realm of the family court. the act being exclusionary in nature and has been enacted for the purpose of resolution of disputes of a particular nature and enumerated in the explanation, it is not for this court to enlarge the same because of the plain language employed therein. it is a salutary principle of interpretation of statutes that when the language of the statute is plain andunambiguous and in fact made clear by the explanation, it is not for the court to import anything not stated therein. it is apt to extract whole of section 7 to understand such plain and unambiguous meaning of the statute:'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 purpose 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 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 proceedings between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to 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 marriage or as to the matrimonial status of any person;(c) a suit or proceeding between the parities to a marriage with respect to the property of the parties or of either of them;(d) a suit or proceedings for an order or injunction in circumstances arising out of a marital relationship;(e) a suit or proceeding for a declaration as to the legitimacy of any person;(f) a suit or proceeding for maintenance;(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.(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.'5. in view of the above, the essential ingredient should be a dispute between the husband and the wife and the said dispute can be with regard to their marital status, divorce, restitution of conjugal rights, judicial separation, child custody, maintenance, as also property sharing. but, in no event, the family court can have jurisdiction if the above dispute is absent. by no stretch of imagination, can the family court assume jurisdiction, if there is a dispute between the brothers, sisters, mothers, fathers etc., concerning property and the case on hand being one such, the family court had clearly no jurisdiction.6. for the reasons mentioned above, the judgment rendered by the learned single judge in smt. izzat sultana's case (supra) cannot be said to have laid down correct law. hence, it is overruled and the view taken by the division bench in mrs. mariamma's case (supra) is followed. consequently, the civil revision petition is allowed. the plaint be returned to the respondents herein for presentation beforethe court of the i additional judge, city, civil court, hyderabad, which court is vested with both territorial and pecuniary jurisdiction.

Judgment:
ORDER

B. Subhashan Reddy, J.

1. This revision under Article 227 of the Constitution of India is directed against the entertainment of suit in OS No.186 of 1998 on the file of the Family Court, Hyderabad, on the premise ]that the said Court had no jurisdiction to try the suit and has been wrongly entertained, as the Family Courts Act, 1984 (hereinafter referred to as 'the Act') has got no application.

2. Mr. Y. Vasudeva Rao, the learned Counsel for the petitioner, submits that the said suit has been filed by the sisters against the brothers and others claiming partition of the property left behind by their father. A petition has been filed under Order VII, Rules 10 and 10-A read with Section 151 of the Code of Civil Procedure by the petitioner herein in the Family Court to return the plaint for presentation in the proper Court, but the same has been dismissed by order dated 6-5-1999 by the Judge, Family Court, Hyderabad in IA No.434 of 1999 in OS No.186 of 1998.

3. Ms. Anitha Ahuja, the learned Counsel appearing for the respondents,admits that it is not a marriage dispute. But, she submits that as there is a dispute between the sister and brother regarding property, suit was filed for partition and since the plaintiffs are ladies and as the Act has been enacted for the benefit of the ladies, the suit is maintainable before the Family Court. She submits that since the word 'family' is not defined under the Act, the meaning in common parlance has to be taken and if so taken, the suit is maintainable. She also submits that because the Act is beneficient in nature, every dispute arising in the family, and not necessarily between the wife and husband, has to be entertained and interpretation has to be liberal in that direction. She has cited a judgment rendered by P. Venkatarama Reddy J. Smt. Izzat Sultana v. Sabir Bin Yasrab, : 1995(3)ALT430 . No doubt, in the said case, the orders directing presentation of the plaint in the Family Courts was questioned and the same was not found favour with the learned single Judge, who directed the civil Court to number the suit and dispose of the same on merits. In the said case, the suit was filed by the wife and children against husband for injunction on the basis of the family arrangement made earlier. For the reasons mentioned infra, we do not agree with the said judgment. In fact, the decision of another Division Bench of this Court in Mrs. Mariamma Ninan v. Mr. K.K. Ninan, : 1997(2)ALT268 , arising under the Act and concerning the same provision i.e., Section 7 of the Act is squarely applicable to the facts of this case. In the said case, a dispute arose between wife and husband and relief sought for was for partition and separate possession on the ground that her Stridhana money was used for construction of the house which was kept in the name of the husband. When the plaint was presented in the Family Court, the same was returned to be presented to the civil Court aggrieved by which, a CRP was filed in this Court. A Division Bench of this Court in the case mentioned supra set aside the order of the Family Court holding that as the dispute was inter se husband and wife and related to property comes within the ambit of clause (c) of Explanation to Section 7(1) of the Act and that only Family Court had jurisdiction and not the civil Court. In R. Durga Prasad v. Union of India, : 1998(2)ALD25 , the question for consideration was the Constitutional validity of clauses (a) and (b) of Explanation to Section 7(1) of the Act relating to the jurisdiction of the Family Court for trying the suits between the parties to a marriage. The proposition propounded was that the above statutory provisions are applicable only for admitted marriages and when there is a dispute with regard to their marital status, the suit is not maintainable by the Family Court and that a common law Court has to be approached firstly seeking a declaration with regard to marital status and then for consequential reliefs.

4. The object and intendment of the Family Courts Act is to try the family matters arising out of marriages of the parties including the maintenance and adoption of the children as also the dispute relating to property and that is so clear from the preamble of the Act itself. Even if the preamble cannot be taken to be an absolute guidance for considering the provisions of the Act, reading Section 7, as a whole, cannot leave any manner of doubt whatsoever that essentially the parties to be husband and wife and may also include children. But, if one of the spouses is absent in the litigation, then it can never be considered as a cause falling within the realm of the Family Court. The Act being exclusionary in nature and has been enacted for the purpose of resolution of disputes of a particular nature and enumerated in the Explanation, it is not for this Court to enlarge the same because of the plain language employed therein. It is a salutary principle of interpretation of statutes that when the language of the statute is plain andunambiguous and in fact made clear by the Explanation, it is not for the Court to import anything not stated therein. It is apt to extract whole of Section 7 to understand such plain and unambiguous meaning of the statute:

'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 purpose 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 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 proceedings between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to 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 marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parities to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceedings for an order or injunction in circumstances arising out of a marital relationship;

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

(f) a suit or proceeding for maintenance;

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

(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.'

5. In view of the above, the essential ingredient should be a dispute between the husband and the wife and the said dispute can be with regard to their marital status, divorce, restitution of conjugal rights, judicial separation, child custody, maintenance, as also property sharing. But, in no event, the Family Court can have jurisdiction if the above dispute is absent. By no stretch of imagination, can the Family Court assume jurisdiction, if there is a dispute between the brothers, sisters, mothers, fathers etc., concerning property and the case on hand being one such, the Family Court had clearly no jurisdiction.

6. For the reasons mentioned above, the judgment rendered by the learned single Judge in Smt. Izzat Sultana's case (supra) cannot be said to have laid down correct law. Hence, it is overruled and the view taken by the Division Bench in Mrs. Mariamma's case (supra) is followed. Consequently, the civil revision petition is allowed. The plaint be returned to the respondents herein for presentation beforethe Court of the I Additional Judge, City, Civil Court, Hyderabad, which Court is vested with both territorial and pecuniary jurisdiction.