Bombay High Court
Pearl Chesson vs Sean Lawrence And 2 Ors on 17 January, 2018
Bench: S.C. Gupte
Priya 1 49 s 2544-12 with nms 2609-12-o
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.2544 OF 2012
WITH
NOTICE OF MOTION NO. 2609 OF 2012
Pearl Chesson ... Plaintiff/Applicant
Vs.
Sean Lawrence and ors. ... Defendants
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Mr.Karl Tamboly i/by M/s Jayakars for the Plaintiff.
----
CORAM : S.C. GUPTE, J.
DATE : 17 JANUARY 2018.
P.C. :
. Heard learned counsel for the Plaintiff. The Defendants have
been absent throughout at the hearing of the suit. The suit was at
one stage even transferred to the list of undefended suits. Since,
however, by an order dated 16 January 2014, a preliminary issue
was framed in the suit, this court, by its order dated 5 October
2017, caused notices to be issued to the Defendants for hearing of
the preliminary issue. Despite notice, none appears for the
Defendants.
2. The suit is placed on board today for hearing of the
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preliminary issue. The preliminary issue framed in the matter is in
the following terms :
"Whether this court has jurisdiction to entertain
and try the present suit, having regard to Sections
7 and 8 of the Family Courts Act?"
3. The Plaintiff has led documentary evidence on the issue.
4. The Plaintiff is the wife of Defendant No.1 and daughter-in-
law of Defendant No.2. Defendant No. 3 is the society, in the
building of which the suit flat is situated. It is the case of the
Plaintiff that she and Defendant No.1, who lived in Dubai
throughout their matrimonial life, had bought two flats in Mumbai
through their own individual funds. Flat No.I-601 in Defendant
No.3-society was bought by Defendant No.1, whereas Flat No.I-
602 was bought by the Plaintiff. There are registered Agreements
for Sale in favour of the purchasers, namely, the Plaintiff and
Defendant No.1, respectively, for flat Nos.I-602 and I-601. The
Plaintiff claims a declaration that she is the owner of flat No.I-602
("suit flat") and that neither of Defendant Nos. 1 and 2 has any
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right to the suit flat. As a consequential relief, the Plaintiff claims a
perpetual injunction against both Defendants restraining them
from dealing with the suit flat.
5. The Plaintiff's notice of motion seeking interlocutory reliefs
in respect of the suit flat is opposed by Defendant Nos. 1 and 2. It
is the case of the Defendants that the present suit is barred on
account of the provisions of Sections 7 and 8 of the Family Courts
Act. It is submitted that for a suit between parties to a marriage
with respect of any property of the parties, it is the Family Court
which alone shall exercise jurisdiction exercisable by any District
Court or Subordinate Civil Court under any law for the time being
in force. It is submitted that since the Family Court has been
established for the particular area and the suit is governed by the
Explanation to Section 7 of the Act, no other courts including any
District Court or Subordinate Civil Court shall have jurisdiction to
entertain and try the suit.
6. At the outset, it is important to note that the present suit is
not a proceeding arising out of the Hindu Marriage Act or the
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Special Marriage Act. It is a pure and simple proceeding for a
declaration under Section 34 of the Specific Relief Act 1963,
seeking to establish a right to property. It is a suit filed by the
owner of the property against persons denying or interested in
denying the former's title to the property. The perpetual injunction
claimed in the suit is merely consequential to the declaratory relief
sought in the main prayer. Such a suit cannot be said to be barred
under the provisions of Sections 7 and 8 of the Family Courts Act.
7. The Supreme Court in the case of Samar Kumar Roy Vs.
Jharna Bera1 discussed the scope of Section 34 of the Specific
Relief Act vis-a-vis Sections 7 and 8 of the Family Courts Act. The
Court held that essentially it is only the suits or proceedings
between the parties to a marriage and concerning the provisions of
Hindu Marriage Act or Special Marriage Act, which are made the
subject of exclusive jurisdiction of the Family Courts established
under the Family Courts Act. These suits are barred from being
entertained by any District or other Civil Court and not suits for
declaration of a legal character under Section 34 of the Specific
1 (2017)9 Supreme Court Cases 591
Priya 5 49 s 2544-12 with nms 2609-12-o
Relief Act. The case before the Supreme Court concerned a suit
filed by one Samar Kumar Roy against once Jharna Bera. The suit
was instituted for a declaratory decree under Section 34 of the
Specific Relief Act and also claimed a perpetual injunction under
Section 38 of that Act. According to the plaintiff, he was a junior
employee under the same Directorate where the defendant was
working and by blackmail and coercion, a show of marriage was
arranged by the defendant's father with the plaintiff by registration
of the purported marriage under the Special Marriage Act, 1954.
The plaint averred that there were no ceremonies of a Hindu
marriage performed and there was no consummation of the
marriage, and accordingly, the defendant was not a legally
married wife of the plaintiff and had no right to claim him as her
husband. The case, in short, was that the alleged marriage
between the Plaintiff and Defendant was not legally valid or
tenable in law. Simultaneously, the plaintiff claimed a perpetual
injunction against the defendant restraining her from claiming him
to be her husband or disturbing him at his office or on his way to
the office or back home. The argument before the court was that
the suit being a proceeding between parties to a marriage for a
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decree of nullity, or declaration as to the validity, of the marriage,
the Family Court alone had the jurisdiction in the suit; that the
suit fell within the Clauses (a) and (b) of the Explanation to
Section 7 of the Family Courts Act. The Supreme Court held that it
was obvious that a suit or proceeding between the parties to a
marriage alleging nullity, etc. referred to in Sections 7 or 8 was a
suit or petition filed under Hindu Marriage Act and/or Special
Marriage Act for such reliefs. There was no reference whatsoever
in Sections 7 and 8 to suits filed for declaration of a legal
character under Section 34 of the Specific Relief Act. The Court
referred to Dhulabhai Vs. State of Madhya Pradesh 1 and after
considering the various propositions of law laid down therein, and
in particular, the propositions laid down in Serial Nos. 2 and 7 of
para 32 of that judgment, held that Section 8(a) of the Family
Courts Act excluded the Civil Court's jurisdiction in respect of only
those suits or proceedings between parties to a marriage, which
were filed under Hindu Marriage Act or Special Marriage Act, for
annulment or dissolution of marriage or for restitution of conjugal
rights, etc., and not those suits which were filed under Section 34
1 (1968)3 SCR 662: AIR 1969 SC 78
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of the Specific relief Act for a declaration as to the legal character
of an alleged marriage. The Court also noted in this connection
that exclusion of the jurisdiction of a civil court cannot be readily
inferred. The Court in that case held that given the line of
judgments referred to by the High Courts, and given the fact that a
suit for declaration as to a legal character which include the
matrimonial status of parties to a marriage, when it comes to a
marriage which allegedly has never taken place either de-jure or
de-facto, the Civil Court's jurisdiction to determine such legal
character is not barred either expressly or impliedly by any law.
8. Coming now to the facts of our case, it is clear that the
present suit does not arise out of or in any way concern any of the
provisions under Hindu Marriage Act or Special Marriage Act.
Though the parties here simply happen to be husband and wife,
the suit is in respect of a property, which is owned as an individual
by the Plaintiff-wife. In the suit, she is seeking a declaration as to
her title or right to the property against two individuals, who
happen to be her husband and father-in-law, both of whom are
interested in denying that title or right to her. The suit is typically
Priya 8 49 s 2544-12 with nms 2609-12-o
a suit under Section 34 of the Specific Relief Act and not a
proceeding between a husband and a wife relating to property
coming within Clause (a) of the Explanation to Section 7 of the
Family Courts Act. The suit not being covered under the provisions
of Section 7, it cannot be said to be barred under Section 8 for the
civil courts to exercise their jurisdiction.
9. Secondly, it is also important to note that the suit is not only
against the Defendant-husband, but also against the father-in- law
of the Plaintiff, who is also interested in denying the Plaintiff's title
to the suit flat. The Plaintiff cannot in such an action be asked to
split her cause of action and take a part of it before the Family
Court and prosecute the other part before the Civil Court. As far as
the Defendant-father-in-law is concerned, the suit claiming a
declaration and perpetual injunction against him obviously cannot
be filed before the Family Court under clause (c) of the
Explanation to Section 7 of the Act.
10. Looked at from any point of view, the present suit cannot be
said to be barred under Sections 7 and 8 of the Family Courts Act.
Priya 9 49 s 2544-12 with nms 2609-12-o
The preliminary issue is accordingly answered in the affirmative,
that is to say, in favour of the Plaintiff.
11. Post the notice of motion now for final hearing on 31
January 2018.
(S.C.GUPTE J.)
