HON'BLE Smt. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No.277 of 2022
ORDER
1. This revision is directed against the order dated 10.12.2021 passed in I.A.No.627 of 2021 in O.S.No.889 of 2021 on the file of the learned Principal Junior Civil Judge, Karimnagar, whereby the application filed by the petitioner- plaintiff-respondent herein under Section 39 Rules 1 and 2 CPC is allowed.
2. O.S.No.889 of 2021 is filed by Muppidi Kishan Babu- plaintiff, father of Kavya, against Akula Rohith-defendant. The plaintiff performed the marriage of his daughter-Kavya with the defendant on 15.12.2014 at Kalyani Gardens, Karimnagar. Later Kavya and her husband Akula Rohith went to USA. The plaintiff would submit that when his daughter Kavya conceived, he along with his wife went to USA and after delivery of the baby boy, they returned to India in the year 2015 along with their daughter Kavya and her son Sanay. After arriving to India the daughter of the plaintiff Kavya told to her parents that her husband was harassed physically and mentally and sent indecent messages to her in filthy language and she is not 2 interested to join with her husband at USA, but they convinced Kavya and sent her along with her son Sanay to USA and there the defendant is not taking care of them properly. When the defendant intending to marry another woman Supriya, daughter of Malyala Venkat Reddy on 29.11.2021 at Jagtial, the plaintiff filed the present suit seeking injunction restraining the defendant from contacting the second marriage with Supriya on 29.11.2021 or any other woman during the subsistence of marriage between the defendant and plaintiff's daughter Kavya. The plaintiff also stated that the defendant has to sign on the passport of his son Sanay for every five years, but he came to India without signing the passport and as such his daughter could not come to India and on her oral instructions, the plaintiff filed the present suit.
3. During the pendency of the proceedings in the suit, the plaintiff filed an application viz., I.A.No.627 of 2021 is filed in the suit seeking ad interim injunction restraining the defendant from contacting second marriage with Supriya. Akula Rohith- defendant filed a detailed counter denying all the allegations made by the plaintiff in the suit and further stated that the plaintiff's daughter Kavya herself approached the Circuit Court of the Eighteenth Judicial Circuit Dupage Country, Illnois State, 3 to dissolve their marriage through decree in Case No.2020 D 2010 and their marriage was dissolved by the Court in USA and there is no subsistence of marriage between him and Kavya, but the plaintiff in the suit suppressed the same and filed it for injunction. The defendant further stated that in view of the dissolution of the marriage before the Foreign Court, they also entered into a Memorandum of Understanding dated 27.04.2021 for financial settlement and as per the said settlement between the parents of both sides, the gold ornaments and cash of Rs.24,00,000/- was handed over to the plaintiff herein. The defendant also disputed the jurisdiction of the civil Court by stating that the Family Court is established and functioning in Karimnagar within the local area of jurisdiction over the entire municipal corporation area as per G.O.Ms.No.136 dated 11.09.2006 and as both of them are residing within the jurisdiction of Karimnager, the suit itself is not maintainable and the plaintiff has to file a petition under Order 7 Rule 11 CPC in view of Section 7(1)(d) of the Family Courts Act, 1984 but not this suit. Section 7(1)(d) reads as under:
'a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;' 4
4. By referring the above provision, the defendant mainly contended that only Family Court is having jurisdiction but not the civil Court.
5. Reply counter is filed by the plaintiff in the suit and disputed the divorce decree granted by USA and contended that the marriage between the parties is still subsisting.
6. The trial Court after considering the arguments advanced by both the counsel, allowed the application and thereby the ad interim injunction granted earlier is made absolute. Aggrieved by the said order, the present revision petition is filed by Akula Rohith-defendant.
7. Learned counsel appearing for the revision petitioner contended that the revision is not maintainable against the orders of the trial Court and the plaintiff has to prefer an appeal under Order 43 Rule 1 CPC. Learned counsel would also argue that the father of Kavya filed suit on behalf of his daughter without having any General Power of Attorney to that effect and that the plaintiff simply stated that on the oral instructions of his daughter he filed the suit, and as such the plaintiff has no locus standi to file the suit.
5
8. Learned counsel appearing for the respondent herein would contend that as per the Family Courts Act if the parties to the marriage filed any suit, it should be filed before the Family Court, but in this case the father of Kavya filed the suit against his son-in-law, and therefore, the suit filed by the plaintiff in the civil Court is valid. Learned counsel would further contend that the divorce decree granted by the USA Court is on the ground of 'Irreconcilable differences have caused the irretrievable breakdown of the marriage; efforts at reconciliation have failed; and further efforts at reconciliation would not be in the best interests of the parties;'. As the said ground is not available under Section 13 of the Family Courts Act, divorce is not valid.
9. Admittedly, the Court at USA granted divorce on 28.04.2021 and the marriage between the parties was dissolved in pursuance of the said judgment. Both the parties entered into a Memorandum of Understanding dated 27.10.2021 and accordingly gold ornaments as well as the cash of Rs.24,00,000/- was handed over to the parents of Kavya and moreover in the Marital Settlement Agreement entered into between the parties before the USA Court in Article XVIII - General Provisions under the head 'Settlement of All Claims' it 6 was observed that '... This is intended to be a full and final settlement between the parties and their families that each has against the other or their family members whether arising under the laws of the United States or India.'
10. Admittedly, Kavya has not filed any O.P. before the Courts in India disputing the divorce decree granted by USA Court. Her father stated that Akula Rohith has not signed the passport of his son and as such Kavya could not come to India. At this juncture, it is apposite to extract Section 7(1)(d) of the Family Courts Act, 1984, which reads as follows:
'7. Jurisdiction.--(1) ...
(a) ...
(b) ...
Explanation.--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--
(a) ...
(b) ...
(c) ...
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;'
11. In the aforesaid provision, it was not specifically mentioned that a suit or proceeding or an order of injunction 7 should be filed only by parties to the suit. In this case the father of Kavya filed suit for injunction; when the Family Courts Act is specifically says that a suit or proceeding or an order of injunction arising within the territorial jurisdiction is to be filed before the Family Court, the suit filed by the father of Kavya before the learned Junior Civil Judge is without jurisdiction and thus, the order of the trial Court is non est in the eye of law and is liable to be set aside. The revision petitioner rightly pointed out that the father of Kavya filed suit even without any authorization or GPA from Kavya and still on that ground also the suit is not maintainable. Therefore, this Court finds that it is just and reasonable to allow the revision.
12. In the result, the civil revision petition is allowed and the order under challenge is set aside.
13. Miscellaneous Petitions, if any, pending in this revision shall also stand closed in the light of this final order.
____________________ P.SREE SUDHA, J.
10th OCTOBER, 2022.
PGS