Niloufer Soli Lam vs Zarir Pesi Bharucha
2023 Latest Caselaw 2357 Bom

                                                                                   ial-35119-2022.doc




                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      ORDINARY ORIGINAL CIVIL JURISDICTION

                                      INTERIM APPLICATION (L) NO.35119 OF 2022
                                                         IN
                                                SUIT NO.335 OF 2022
VISHAL
SUBHASH
PAREKAR               Niloufer Soli Lam                                    ...Applicant
Digitally signed by
VISHAL SUBHASH
                            In the matter of
PAREKAR
Date: 2023.03.14      Zarir Pesi Bharucha                                  ...Plaintiff/
19:52:57 +0530
                                                                           Respondent
                            vs.
                      Niloufer Soli Lam                                    ...Defendant

                      Mr. Satish Maneshinde a/w. Ms. Mrunalini Deshmukh, Ms. Sanober
                      Nanavati, Mr. Saket Mone, Mr. Subit Chakrabarti, Ms. Srushti
                      Thorat, Ms. Apurva Pawar and Ms. Anandini Fernandes and Ms.
                      Namita Maneshinde i/b. Vidhi Partners, for the Applicant
                      /Defendant.

                      Mr. Aspi Chinoy, Senior Advocate a/w. Mr. Navroz Seervai, Senior
                      Advocate, Mr. Gaurav Joshi, Senior Advocate, Mr. Zal
                      Andhyarujina, Senior Advocate, Ms. Tauban Irani, Ms. Sanchi
                      Ladha and Mr. Samsher Garud i/b. Bimal Rajasekhar, for the
                      Respondent/Plaintiff.

                                                CORAM :   N. J. JAMADAR, J.
                                                DATE :    MARCH 13, 2023

                      ORDER

1. The applicant/defendant has preferred this application to

reject the plaint under the provisions of Order 7 Rule 11(d) of the

Code of Civil Procedure, 1908 (the Code), as being barred by law,

and, in the alternative, to transfer the captioned suit to the

appropriate Family Court for trial along with a Petition filed by the

plaintiff/ respondent for dissolution of the marriage.

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2. The background facts necessary for determination of this

application can be stated in brief as under:-

a] The plaintiff is an advocate by profession. Defendant is also

engaged in corporate law practice. The defendant is a British

citizen. The plaintiff and defendant are Parsis.

b] The marriage of the plaintiff and defendant was solemnized on

29th March, 2012 under the provisions of the Special Marriage Act,

1954 (the Special Marriage Act). On 1st April, 2012 the plaintiff and

defendant also solemnized and registered marriage under the Parsi

Marriage and Divorce Act, 1936 (the Parsi Marriage Act). The

plaintiff and defendant are blessed with a daughter and a son.

c] It seems since the year 2019, marital discord struck the life of

plaintiff and defendant. Allegations and counter allegations do not

deserve to be adverted to, for the purpose of determination of this

application. It would be suffice to note that in the year 2021 the

marital discord escalated resulting in loss of trust. The plaintiff

asserts the plaintiff and defendant could not resolve the

matrimonial dispute and decided to part ways amicably and till

such time stay together in the matrimonial home.

3. On 7th September, 2022, according to the plaintiff, he received

an intimation that the account maintained with 'Charles Schwab

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and Co.' (Schwab account), to which the plaintiff had made the

defendant a joint account holder, was debited at the defendant's

instance to the tune of US$ 4 million. Assets totaling US$ 4 million

had been transferred by the defendant to her own Schwab account.

4. The plaintiff, thus, claimed to have rushed to the Court with

the instant suit seeking recovery of the sum of US$ 4,084,063

which the defendant had allegedly illegally transferred out of the

Schwab account, jointly held by the plaintiff and defendant. It was

averred that the defendant had no right, title and interest in the

funds so transferred. The defendant's intention appeared to be to

use the money allegedly siphoned off by her to set up a life abroad.

5. The plaintiff averred since the defendant had left the home

with children, passport and other documents, he apprehended that

the defendant will take the children out of the country. Once, the

defendant leaves the country, the plaintiff's rights would be

irretrievably prejudiced in as much as the recovery of the allegedly

siphoned off amount would become virtually impossible. The access

to funds would embolden and/or incentivise the defendant to leave

the country with their minor children. Hence, plaintiff prayed for a

decree in the sum of US$ 4,084,063 along with interest @ 12% p.a.

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6. An application for interim/ad-interim relief, being an Interim

Application (L) No. 28657 of 2022, was moved for an order and

direction that the defendant/respondent re-transfer the aforesaid

amount, and not to permit the defendant/respondent to leave the

country and further direct the defendant/respondent to deposit her

passport along with the minor children passports.

7. On 7th September, 2022 this Court passed an order

appointing a senior advocate of this Court as Mediator to explore

the resolution of the dispute and ordered status-quo in so far as the

amount of US$ 4,084,063 and ZBA partnership firm's account and

also directed that the passports of the plaintiff, defendant and their

children, be deposited with the Prothonotary and Senior Master of

this Court. It was clarified that the plaintiff and defendant shall

have access to the children till further orders.

8. In the intervening period, the plaintiff moved another

application for further interim reliefs. The plaintiff also instituted a

Parsi Suit No. 20 of 2022 for dissolution of marriage under the Parsi

Marriage Act. Simultaneously, the plaintiff instituted a petition,

being Petition No. 3217 of 2022, for dissolution of the marriage

under the Special Marriage Act before the Family Court, Mumbai.

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9. The defendant has taken out this application for rejection of

the plaint on the ground that this Court lacks jurisdiction to

entertain, try and decide the instant suit. The defendant contends

since the marriage has been first solemnized under the provisions

of Special Marriage Act and the issues raised in the instant suit are

the subject matter of the dispute which squarely fall within the

ambit of Explanation to Section 7(1) of the Family Courts Act, 1984

(the Family Courts Act) the bar under section 8(a) of the Family

Courts Act comes into play and the jurisdiction of this Court is

ousted.

10. The defendant asserts that the disputes between the parties

to the present suit arise out of their marital relationship and are the

subject matter of section 27 of the Special Marriage Act. In view of

the provisions contained in section 7 of the Family Courts Act the

Family Court has exclusive jurisdiction to try all the disputes.

Adverting to the averments made in the plaint, the interim

applications and the affidavits filed in support of the interim

applications, especially the prayers therein, the defendant contends

all these disputes are subsumed by the provisions contained in

section 7 of the Family Courts Act. Moreover, since the plaintiff

himself has submitted to the jurisdiction of the Family Court by

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filing Petition No. 3217 of 2022 for dissolution of marriage under

the provisions of Special Marriage Act, the plaintiff would not suffer

any loss in the event the instant suit is transferred to the Family

Court for trial and determination along with the said petition.

11. The plaintiff resisted the prayers in the instant application by

filing an affidavit in reply. The application was stated to be devoid of

substance and filed with an oblique motive to delay the

consideration of the plaintiff's application for interim relief seeking

re-transfer of the amount. The application is also stated to be wholly

misconceived as the defendant has failed to make out a case as to

how the suit appears from the statement of the plaint barred by any

law.

12. On merits, the plaintiff avers the relief sought in the suit is

only for the restitution of the assets which have been wrongfully

diverted by the defendant to her individual Schwab account. The

interim reliefs in the nature of restraining the defendant from

leaving the country along with children, and direction to deposit the

passports were sought to prevent the defendant from frustrating

the recovery proceeding by fleeing the country. The defendant

never had any right or interest in the amount which was

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transferred from the plaintiff's Schwab account. A suit for

restitution of the property which has been wrongfully converted,

does not fall within the purview of the provisions contained in

sections 7 and 8 of the Family Courts Act merely for the reason of

the marital relationship between the plaintiff and defendant.

13. According to the plaintiff those provisions do not bar the

jurisdiction of the Civil Court to entertain the suit for declaration or

injunction under the Specific Reliefs Act. Nor a suit seeking

restitution of the property illegally and wrongfully transferred.

Reference to the matrimonial dispute in the plaint has been made

with intent to place full and complete facts before the Court and

that does not change the character of the suit.

14. An affidavit in rejoinder and further affidavit came to be filed.

15. In the wake of the aforesaid facts and pleadings, I have heard

Mr. Satish Maneshinde, learned counsel for the applicant

/defendant and Mr. Aspi Chinoy, learned senior advocate, for the

respondent/plaintiff. The learned counsel took the Court through

the relevant pleadings and the documents in support of the

submissions canvassed across the bar.

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16. Mr. Maneshinde submitted that the plaintiff's case suffers

from the vice of Suggestio Falsi and Suppressio Veri. The plaintiff

has conveniently suppressed the cruelty which the defendant was

made to suffer at the hands of the plaintiff. The transfer of the

amount from the joint Schwab account to the defendant's individual

account, according to Mr. Maneshinde, was only upon the discovery

of the fact that the plaintiff had illegally and without prior consent,

transferred a huge sum of Rs. 66,57,19,315/- from the joint account

of plaintiff and defendant with HDFC Demat account to his sole

HDFC Demat account by taking undue advantage of pre-signed

delivery slips which the defendant was made to sign under the

pretext of trading purpose. The said transfer was with a view to

protect the interest of the defendant and her minor children.

17. Mr. Maneshinde, would urge that if the averments in the

plaint, especially paragraphs 3 to 6 and 9 and 10 are read, it

becomes abundantly clear that the genesis of the dispute is the

matrimonial discord. In fact, by way of interim application, the

plaintiff sought all the reliefs which plainly fall within the province

of the Family Court. Laying emphasis on the fact that the plaintiff

himself has filed petition for the dissolution of the marriage under

the Special Marriage Act which has a overriding effect over the

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personal laws, being fully cognizant of the fact that the dissolution

of the marriage under the Parsi Marriage Act would not disrupt the

marital bond between the parties, Mr. Maneshinde strenuously

submitted that the jurisdiction of this Court to entertain and try the

suit stands expressly barred in view of the provisions contained in

sections 7 and 8 of the Family Courts Act. Inviting the attention of

the Court to the object of the Family Courts Act, it's emphasis on

conciliation and the Family Court being unshackled of the

procedure prescribed under the Code for ordinary suits, Mr.

Maneshinde would submit that this Court would not be justified in

usurping the jurisdiction exclusively vested in the Family Court.

18. To bolster up the aforesaid submissions, Mr. Maneshinde

placed reliance on a judgment of the Supreme Court in the case of

Balram Yadav vs. Fulmaniya Yadav1; a Full Bench Judgment of this

Court in the case of Romila Jaidev Shroff vs. Jaidev Rajnikant

Shroff2, and the judgments of learned single Judges of this Court in

the case of Ravindra Sukhdev Ghadge vs. Swati Ravindra Ghadge 3;

Ashu Khurana Dutt vs. Aneesha Ashu Dutt4. Reliance was also

placed on the judgment of the Division Bench of the Delhi High

1 (2016) 13 Supreme Court Cases 308.

2 2000(3) Mh.L.J. 468.

3 2019 (2) Mh.L.J. 110.

4 2021 SCC OnLine Bom 550.

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Court in the case of Amina Bharatram vs. Sumant Bharatram and

Ors.5; and the judgments of the learned single judges of the said

Court in the case of Jasmeet Kaur vs. Navtej Singh6 and M vs. A7.

19. In opposition to this, Mr. Chinoy, countered the submissions of

Mr. Maneshinde with a matching tenacity. It was urged that the

application is wholly misconceived. The defendant has

misconstrued the nature of the suit. In fact, the defendant is guilty

of selective reading of the plaint. Mr. Chinoy stoutly submitted that

the instant suit is for return of specific movable property

wrongfully converted, pure and simple.

20. Mr. Chinoy strenuously submitted that, it is a misconception

that the Family Court is the Court of substantive jurisdiction. The

Family Court is merely a special forum established by the

legislature to deal with the disputes arising under the laws which

govern the substantive rights of the parties like Hindu Marriage

Act, 1955 and the Special Marriage Act, 1954 etc. The jurisdiction

which was exercised by the Courts in relation to the said Acts is

now exercised by the Family Court.

5 2016 SCC OnLine Del 3929.

6 2017 SCC OnLine Del 12511.

7 2018 SCC OnLine Del 8005.

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21. Mr. Chinoy urged that it is not the relationship between the

parties which is determinative of the jurisdiction of the Court but

the nature of the dispute. In a given case, the fact that the parties

are related by marriage does not change the nature of the dispute

and confer jurisdiction on the Family Court to decide the dispute if

it otherwise does not relate to the substantive laws which fall within

the umbrella of section 7of the Family Courts Act. A suit for

declaration, for instance, under section 34 of the Specific Relief Act,

1963 clearly falls within the jurisdiction of the Civil Court, so also a

suit for recovery of the property, urged Mr. Chinoy.

22. Mr. Chinoy further submitted that the controversy sought to

be raised by the defendant is no longer Res Integra and is concluded

by the decision of the Supreme Court in the case of Samar Kumar

Roy vs. Jharna Bera8. Mr. Chinoy further submitted that a learned

single Judge of this Court in the case of Pearl Chesson vs. Sean

Lawrence and Ors.9, after following the judgment of the Supreme

Court in the case of Samar Roy (supra) has, in terms, ruled that a

suit in respect of property which is owned as an individual by a

party to the marriage, does not vest jurisdiction in the Family Court

for the reason that the parties happened to be husband and wife.

8 AIR 2018 Supreme Court 334.

9 MANU/MH/0127/2018.

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23. To buttress the submission that post Samar Roy (supra), the

nature of the jurisdiction exercised by the Family Court under

section 7 of the Family Courts Act is considered in a refined

perspective, attention of the Court was invited to the judgment of

the Division Bench of Delhi High Court in the case of Harjyot Singh

vs. Manpreet Kaur10. To lend support to the submission that the

Family Courts Act is not a standalone act and draws sustenance

from the other cognate laws, reliance was placed on the judgment of

the Supreme Court in the case of N. Rajendran vs. S. Valli11.

24. The Family Courts Act was enacted to provide for the

establishments of Family Courts with a view to promote conciliation

in, and secure speedy settlement of, the dispute relating to

marriage and family affairs. It was made obligatory to make an

endevour to explore the possibility of re-conciliation or settlement

of the dispute between the parties to a family dispute. The Family

Courts were unburdened of the strict rules of evidence and

procedure so as to enable them to deal effectively with a dispute in

furtherance of the object of the establishment of the Family Courts.

25. In the light of the controversy at hand, it may be apposite to

10 MANU/DE/4195/2019.

11 2022 SCC OnLine SC 157.

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note the relevant provisions of the Family Courts Act. The relevant

part of section 7 which confer jurisdiction on the Family Court

reads as under:-

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 ......... ......

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

........ ........

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

....... .....

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

26. Section 8 which bars the jurisdiction of the other Courts reads

as under:-

8. Exclusion of jurisdiction and pending proceedings.-- Where a Family Court has been established for any area,--

(a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub- section.

..... .......

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             (b) .....
             (c) .....

27. Section 20 of the Family Courts Act which gives an overriding

effect to the Family Courts Act, reads as under:-

20. Act to have overriding effect.--

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

28. It would be contextually relevant to note the relevant

provisions of the Special Marriage Act, 1954. Section 13 makes a

certificate of marriage issued thereunder a conclusive evidence of

the fact of marriage solemnized under the said Act. It reads as

under:-

13. Certificate of marriage.―

(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

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29. Section 27(1) of the Special Marriage Act provides that

subject to provisions of the said Act and the Rules made thereunder,

a petition for divorce may be presented to the District Court either

by the husband or the wife on the ground enlisted therein.

30. Section 42 of the Special Marriage Act reads as under:-

Saving.― Nothing contained in this Act shall Nothing contained in this Act shall affect the validity of any marriage not solemnized under its provisions; nor shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage.

31. Laying emphasis on the provisions contained in sub clause (c)

of the Explanation to sub-section (1) of section 7 of the Family

Courts Act, read with clause (a) of section 8 of the Family Courts

Act, Mr. Maneshinde urged with a degree of vehemence that, even

the principal relief relating to the property of the plaintiff, even if

taken at par, (though the defendant contested the plaintiff's claim

that the plaintiff had exclusive title to the funds in the Schwab

account the suit would clearly fall within the province of the Family

Court. Mr. Maneshinde further submitted that if the plaint is read

as a whole, the context of the matrimonial dispute is indubitable.

The fact that the plaintiff had been pursuing remedies which relate

to the family dispute becomes even more explicit from the interim

reliefs like custody of, and access to, the children. The contention

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that the claim in the suit represents the property dispute is a mere

subterfuge, urged Mr. Maneshinde.

32. In the case of Balram Yadav (supra), on which a strong

reliance was placed by Mr. Maneshinde, the appellant therein had

instituted a suit before the Family Court for declaration that the

respondent was not his legally wedded wife. The High Court set

aside the declaratory decree holding that the Family Court lacks

jurisdiction to deal with the matter as a negative declaration was

outside the jurisdiction of the Family Court. The Supreme Court

after adverting to the provisions contained in section 7(1)

Explanation (b) and section 8 and 20 of the Family Courts Act

enunciated that in case there is a dispute as regards the

matrimonial status of any person a declaration in that regard had

to be sought only before the Family Court. The nature of the

declaration sought namely, affirmative or negative, did not matter.

The observations in paragraph 7 read as under:-

7. Under Section 7(1) Explanation (b), a suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only

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before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws.

33. A full Bench of this Court in the case of Romila Shroff (supra)

considered the question as to whether this Court in exercise of

Ordinary Original Civil Jurisdiction would fall within the scope of

the expression "district court" and thus would not have the

jurisdiction to deal with a dispute which was covered by the

provisions contained in Section 7(1) of the Family Courts Act. The

Full Bench concluded that when the High Court exercises its

Ordinary Original Civil Jurisdiction in relation to the matters under

the Family Courts Act, it would be a District Court as understood

therein and would, therefore, lose its jurisdiction. Observations in

paragraphs 26 to 28 and 31 of the said judgment are relevant and,

hence, extracted below:-

26. In this background, one has to turn to the provisions of section 20 where the Act shall have overriding effect, which reads as under :

"20. Act to have overriding effect.--- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

27. Letters Patent would be included in expression any

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law for the time being in force, and would certainly be covered the expression "instrument". The overriding effect given to the Act is thus confined not only to the Code of Civil Procedure but also to the Evidence Act. The Evidence Act is also an instrument having effect by virtue of law. Looking to the provision of the restricted right of an Advocate to appear in a matter obviously, the Advocates Act of 1961 also has effect to that extent.

28. Virtually, the litigation before the Family Court is a mixture of inquisitorial trial, participatory form of grievance redressal and adversorial trial. As the Family Court is left to devise its own practice, it can have a judicious mixture of all three of them and can as well proceed under any of- them exclusively. ...... ............

31. When thus interpreted, in our opinion, the conclusion would be inescapable that when the High Court exercises its Ordinary Original Civil Jurisdiction in relation to the matters under the Family Court Act, it would be a District Court as understood therein. It would, therefore, lose its jurisdiction. The reference is answered accordingly.

34. The aforesaid Full Bench judgment was followed by the Delhi

High Court, in the case of Amina Bharatram (supra). The Division

Bench answered the reference made to it as under:-

48. Therefore, the reference is answered as follows:- "Point No.1: It is held that the Delhi High Court is a "district court" under Section 8 in respect of all matters enumerated in Explanation to Section 7(1) of the Act;

Point No.2: The Delhi High Court does not possess jurisdiction to entertain, try and decide cases and causes referred to in Sections 7 and 8 of the Family Courts Act."

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35. As against this line of decisions, the judgment of the Supreme

Court in the case of Samar Kumar Roy (supra) which constitutes

the sheet anchor of the submissions of Mr. Chinoy draws a

distinction between the dispute in relation to matters which arise

out of the laws referred to in the Explanation to sub section (1) of

section 7 and suits for declaration of legal character filed under

section 34 of the Specific Relief Act.

36. In the case of Samar Kumar Roy (supra) the deceased

plaintiff had instituted a suit against respondent/defendant therein

for a declaration that the defendant was not the legally wedded wife

of the plaintiff and consequential relief of injunction restraining the

defendant from claiming that the plaintiff was her husband. Upon

the death of the plaintiff during the pendency of the suit, the

plaintiff's mother applied to implead her as a legal representative of

the plaintiff. Assailing the order of the trial Court substituting the

deceased plaintiff with his mother, the defendant had moved the

High Court; which was persuaded set aside the order of the trial

Court holding that after the death of the plaintiff, no right to sue

survived in favour of the plaintiff's mother.

37. In the aforesaid context, a submission was canvassed before

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the Supreme Court that even otherwise the Civil Court lacked

jurisdiction in view of the provisions contained in section 7 and 8 of

the Family Court. After adverting to the provisions contained in

section 7(1) and 8 of the Act, 1984, the Supreme Court in Samar

Kumar Roy (supra) enunciated the law as under:-

13. It is obvious that a suit or proceeding between parties to a marriage for a decree of nullity or restitution of conjugal rights or judicial separation or dissolution of marriage, all have reference to suits or petitions that are filed under the Hindu Marriage Act and/or Special Marriage Act for the aforesaid reliefs. There is no reference whatsoever to suits that are filed for declaration of a legal character under Section 34 of the Specific Relief Act. Indeed, in Dhulabhai vs. Madhya Pradesh (1968) 3 SCR 662, this Court had occasion to consider whether the civil court's jurisdiction was expressly or impliedly barred by statute. After referring to a number of judgments, this Court laid down 7 propositions of law, of which two are of relevance to the present case:

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

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(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."

14. On a reading of the aforesaid propositions, it is clear that the examination of the remedies provided and the scheme of the Hindu Marriage Act and of the Special Marriage Act show that the statute creates special rights or liabilities and provides for determination of rights relating to marriage. The Acts do not lay down that all questions relating to the said rights and liabilities shall be determined only by the Tribunals which are constituted under the said Act. Section 8(a) of the Family Courts Act excludes the Civil Court's jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial separation. It does not purport to bar the jurisdiction of the Civil Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage. Also as was pointed out, an exclusion of the jurisdiction of the civil courts is not readily inferred. Given the line of judgments referred to by the High Courts, and given the fact that a suit for declaration as to legal character which includes 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, it is clear that the civil court's jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law.

(emphasis supplied)

38. The Supreme Court has thus, in terms, enunciated that

section 8 of the Act, 1984 does not purport to bar the Civil Court's

jurisdiction if a suit is filed under section 34 of the Specific Relief

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Act for declaration as to the legal character of an alleged marriage.

With reference to the scheme of Hindu Marriage Act and the Special

Marriage Act, the Supreme Court specifically postulated that those

Acts do not lay down that all the questions relating to the rights

and liabilities enshrined thereunder should be determined only by

the Tribunals which are constituted under the said Acts. Exclusion

of jurisdiction by virtue of the provisions of section 8(a) is to the

extent of a suit or proceeding which is between the parties and filed

under those enactments.

39. The aforesaid judgment of the Supreme Court was followed by

a learned single Judge of this Court in the case of Pearl Chesson

(supra). In the said case, the plaintiff/wife had sought a declaration

against her husband and mother-in-law that she was the owner of

the suit flat and neither of the defendants had any right over the

suit flat and also sought a perpetual injunction to restrain the

defendants from dealing with the suit flat. Drawing heavily from the

judgment of the Supreme Court in the case of Samar Kumar Roy

(supra), the learned single Judge, in the light of the aforesaid facts

of the said case, expounded the legal position as under:-

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

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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 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.

(emphasis supplied)

40. The judgment of the Delhi High Court in the case of Harjyot

Singh (supra) proceed on the same lines.

41. In the case of R. Kasturi and Others vs. M. Kasturi and

Others12 the suit was instituted in a situation where the legal heir-

ship obtained by the appellant/plaintiff was sought to be challenged

by defendant Nos. 1 and 2 who claimed to be the wife and son of late

Gunaseelan whom plaintiff No. 1 also claimed to be her husband.

The decree passed by the trial Court was affirmed in the First

Appeal. In the Second Appeal, the High Court held that the Civil

Court had no jurisdiction to entertain the suit which lay within the

domain of the Family Court and thus reversed the decree.

12 (2018) 5 Supreme Court Cases 353.

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                                                                      ial-35119-2022.doc

42. Dis-agreeing with the High Court, the Supreme Court

remanded the matter back to the High Court opining, inter alia, that

the dispute between the parties was purely a civil dispute.

Paragraphs 5 to 7 read as under:-

5] Sections 13, 14 and 15 of the Act spell out a special procedure. The other provisions of the Act i.e. Section 4(4) would indicate that a major objective behind the enactment of the Act is to have a specialized body to preserve and save the institution of marriage.

6] In the present case, there is no family dispute between the plaintiffs and the defendants. The dispute arose after the demise of Gunaseelan to whom both the plaintiff No.1 and the defendant No.1 claim to be married. The other plaintiffs and defendant No.2 are the children claimed to be born out of the respective marriages.

7] The above would indicate that the dispute between the parties is purely a civil dispute and has no bearing on any dispute within a family which needs to be resolved by a special procedure as provided under the Act. No issue with regard to the institution of marriage and the need to preserve the same also arises in the present case. That apart, the dispute between the parties can only be resolved on the basis of evidence to be tendered by the parties, admissibility of which has to be adjudged within the four corners of the provisions of the Indian Evidence Act, 1872. In such a proceeding it would be clearly wrong to deprive the parties of the benefit of the services of counsel.

43. In the light of the aforesaid provisions and pronouncements

the propositions which emerge can be summarized as under:-

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                                                                 ial-35119-2022.doc

1] The exclusion of jurisdiction of the Civil Court is not to be

readily inferred.

2] To confer the Family Court with exclusive jurisdiction, the

matter in dispute should be relatable to the rights and

obligations emanating from the enactments like Hindu

Marriage Act or Special Marriage Act etc. or the uncodified

law, wherever the parties are governed by uncodified law, in

relation to marriage, divorce, custody, guardianship and

family disputes arising out of a matrimonial relationship.

3] Mere marital relationship between the parties is not a

determinative factor to oust the jurisdiction of the Civil Court.

4] Rather, it is the nature of the dispute and not the admitted

or disputed marital status of the parties which has a

determinative significance.

5] If the declaratory or injunctive reliefs are sought which are

traceable to the provisions contained in the Specific Relief Act

and partake the character of civil dispute, in

contradistinction to family dispute, bar under section 8 of the

Family Courts Act, may not be attracted.

6] In contrast, if the suit or proceeding is between the parties

to a marriage or the persons claiming through either of them

and it falls within any of the clauses of Explanation to Sub

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section (1) of Section 7, the Family Courts would have

exclusive jurisdiction.

44. In the light of the aforesaid exposition, reverting to the facts

of the case at hand, it is necessary to keep in view, the nature of a

plea for rejection of the plaint. It proceeds on a demurrer. It is well

neigh settled that while considering an application for rejection of

the plaint only the averments in the plaint and the documents

annexed with it are required to be taken into account. Plaint, in

turn, is required to be read in a meaningful and not formal manner.

45. A meaningful reading of the plaint, in the instant case,

indicates that the plaintiff has indeed adverted to the marital status

of the parties, marital discord between them and the causes for the

same. Reference to those facts, however, is required to be construed

in the context of the cause of action for the suit and the principal

relief. The plaint proceeds on the premise that the amount allegedly

transferred from Schwab account was the exclusive property of the

plaintiff and, taking undue advantage of being a joint account

holder, the defendant surreptitiously transferred the funds to her

individual Schwab account. The plaintiff thus seeks a decree for the

said amount along with interest thereon. Implicit in these prayers is

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a declaration that the defendant has no right, title and interest to

the said funds and there was a wrongful transfer of the funds to her

individual account.

46. Mr. Maneshinde made an endevour to demonstrate that the

interim reliefs sought by the plaintiff, initially, to restrain the

defendant from leaving the country along with children and, later

on, the interim custody of and access to the children, all fall in the

arena of matrimonial disputes cognizable by the Family Court.

47. I find it difficult to accede to the aforesaid submission. Again a

meaningful reading of the plaint would indicate that the plaintiff

asserted that the defendant was a British citizen and once the

defendant leaves India, along with children, the recovery of the

funds, which were allegedly wrongfully diverted would be

impossible. Injunctive reliefs against the defendant thus, prima

facie, emanated from the apprehension of the impediments in the

restitution of the funds.

48. The subsequent applications and prayer for further interim

reliefs in the nature of access to the children, are also required to be

appreciated in the light of the fact that they were moved with an

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allegation that despite the order of the Court dated 7 th September,

2022, the plaintiff was restrained from having access to the

children. If this context is kept in view, the fact that certain interim

reliefs were sought by the plaintiff which related to the issues which

are amenable to the jurisdiction of the Family Court, would not

change the primary nature of the suit.

49. For the foregoing reasons, I am persuaded to hold that this

Court has jurisdiction to entertain, try and decide the instant suit.

Resultantly, neither the prayer for rejection of the plaint nor for

transfer of the suit to the Family Court for trial along With Petition

No. 3217 of 2022 merits acceptance.

Hence, the following order.

ORDER

1] The application stands dismissed.

2] Costs in cause.

                                           (N. J. JAMADAR, J.)




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