Chattisgarh High Court
Vivek Singh vs Yogendra Singh Thakur on 27 July, 2021
1
FAM No.105 of 2015
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 14-12-2020
Judgment delivered on 27-07-2021
FAM No. 105 of 2015
[Arising out of judgment and decree dated 7-8-2015 passed by the
Second Additional Principal Judge, Family Court, Durg, in civil suit
No.119-A/2014]
1. Vivek Singh S/o Ashwini Singh, Aged About 35 Years R/o
Shankar Nagar, Durga Chowk, Mohan Nagar, P.S. Durg, Tahsil
And District Durg Chhattisgarh
---- Appellant
Versus
1. Yogendra Singh Thakur S/o Amuk Singh Thakur, Aged About 58
Years R/o Rohni Puram Colony, Raipur, Tahsil And District
Raipur Chhattisgarh
Present Address- Karmachari Nagar, Qr. No.15, Street - 4, Tahsil
And District- Durg Chhattisgarh.
---- Respondent
For Appellant Mr. Anand Shukla, Advocate
For Respondent Mr. Prasoon Agrawal, Advocate
Hon'ble Mr. Prashant Kumar Mishra, Ag. CJ.
Hon'ble Mrs. Rajani Dubey, J.
CAV Judgment
The following judgment of the Court is delivered by Prashant
Kumar Mishra, Acting Chief Justice.
1. This appeal under Section 19 (1) of the Family Courts Act, 1984
(for short 'the Act, 1984') has been preferred by the husband of the
deceased wife challenging the judgment and decree of the trial
Court allowing the suit preferred by the appellant's father-in-law
FAM No.105 of 2015
for return of the properties gifted to his late daughter Pratima
Singh at the time of her marriage with the appellant.
2. While deciding the suit the trial Court has also rejected the
appellant's objection to the maintainability of the suit before the
Family Court to hold that the Family Court has jurisdiction to
decide the suit.
3. The substantial part of the argument advanced before us revolved
on this issue, therefore, we shall first deal with the issue
concerning jurisdiction of the Family Court.
4. Facts of the case, very briefly stated, are that the appellant and
Late Pratima Singh were married on 23-6-2007. Pratima Singh
committed suicide on 3-1-2009 for which an offence under
Section 306 of the Indian Penal Code was registered against the
family members of the appellant, but we are not concerned with
the dispute concerning the cause of death or as to who is
responsible for such death. The present suit under Section 7(1)(c)
of the Act, 1984 was moved by the respondent herein [father of
late Pratima Singh] claiming return of various properties gifted to
his daughter at the time of marriage. The appellant herein
objected to the jurisdiction of the Family Court. Additional
statement to this effect pleaded in the written statement is not
happily worded, however, since the parties have gone to trial with
an understanding that the said part of the objection relates to the
jurisdiction of the Family Court and not only to the place where
the suit will lie, we proceed to decide the appeal to deal with the
merits of the objection regarding maintainability of the suit before
the Family Court.
5. Mr. Anand Shukla, learned counsel appearing for the appellant,
would argue that the family Court would only have jurisdiction to
decide a suit or proceedings between the parties to a marriage with
respect to the properties of the parties or either of them, as
FAM No.105 of 2015
provided under Section 7(1) Explanation (c) of the Act, 1984,
therefore, the present suit having been filed by the father-in-law,
who was not a party to the marriage, the Family Court has no
jurisdiction to decide the suit.
6. Mr. Prasoon Agrawal, learned counsel appearing for the
respondent, per contra, would argue that the word 'parties to the
marriage' cannot be given a restricted meaning. The present suit
by father of the wife (father-in-law of the husband) is for return of
Stridhana properties gifted to his daughter at the time of marriage,
therefore, in the facts and circumstances of the case, the plaintiff
steps into the shoes of his deceased daughter who was party to the
marriage, therefore, the suit is maintainable.
7. To buttress their respective contentions, learned counsel for both
the parties would place reliance upon the decisions rendered in
Suprabha v Sivaraman K.K. & Anr.1, K.A. Abdul Jaleel v T.A.
Shahida2, Leby Issac v Leena M. Ninan alias Lincy and Others 3,
P. Srihari v Kum. P. Sukunda and another4, Rakhi Deorankar v
Jayendra Deorankar5, O.M. Meyyappa Chattier v Kannappa
Chattier and Others6, Workmen of Dimakuchi Tea Estate v The
Management of Dimakuchi Tea Estate7, Bobbili Ramakrishna
Raja Yadad and Others v State of Andhra Pradesh Represented
by its Public Prosecutor, High Court of Andhra Pradesh,
Hyderabad, Andhra Pradesh and Another8, Syamaladevi v
Sarala Devi & Ors.9, Pratibha Rani v Suraj Kumar and
Another10, May George v Special Tahsildar and Others 11 and
Shyni v George and others12.
1 AIR 2006 Kerala 187
2 (2003) 4 SCC 166
3 2005 SCC OnLine Ker 345 : AIR 2005 Ker 285
4 AIR 2001 Andhra Pradesh 169
5 (2008) 5 MhLJ 98
6 AIR 1976 Madras 154
7 AIR 1958 SC 353
8 (2016) 3 SCC 309
9 2009 SCC OnLine Ker 508 : AIR 2009 Ker 138
10 (1985) 2 SCC 370
11 (2010) 13 SCC 98
12 1997 SCC OnLine Ker 80 : AIR 1997 Ker 231
FAM No.105 of 2015
8. Before we proceed to dwell on the issue it would be profitable to
quote relevant provisions of law which have been referred by
learned counsel for the parties at the time of argument.
9. Section 7(1) of the Act, 1984 is quoted below for ready reference :
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) a suit or proceeding between the parties
to a marriage for a decree of nullity of
marriage (declaring the marriage to be
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 a marriage or as to the
matrimonial status of any person;
(c) a suit or proceeding between the parties
to a marriage with respect to the
property of the parties or of either of
them;
(d)a suit or proceeding for an order or
injunction in circumstances arising out
of a marital relationship;
FAM No.105 of 2015
(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.
[Emphasis added]
10. Section 27 of the Hindu Marriage Act, 1955 (for short 'the Act,
1955') is quoted below :
27. Disposal of Property.--In any proceeding
under this Act, the court may make such
provisions in the decree as it deems just and
proper with respect to any property presented,
at or about the time of marriage, which may
belong jointly to both the husband and the
wife.
11. A plain reading of the provisions would manifest that for
maintaining a suit or proceeding of the nature mentioned in
Explanation (c) sub-section (1) of Section 7 of the Act, 1984, the
suit or proceeding has to be between the parties to a marriage with
respect to the property of the parties or of either of them. In the
case at hand, there is no dispute that the subject properties were
gifted at the time of marriage and thus the properties belong to the
parties to the marriage or of either of them, therefore, the germane
issue would be whether a suit preferred by father of the wife can
be treated as a suit preferred by a party to the marriage.
FAM No.105 of 2015
12. The issue at hand has engaged several High Courts for decision
making, therefore, it would be profitable to refer to some of the
judgments.
13. In P. Srihari (supra) the Division Bench of the Andhra Pradesh
High Court was considering maintainability of a suit for partition
filed by sisters against their brothers for partition of their father's
property. Holding that such suit is not maintainable before the
family Court it was observed thus in para 5 :
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.
[emphasis supplied]
14. In K.A. Abdul Jaleel (supra) the Supreme Court had an occasion
to consider jurisdiction of Family Court vis-à-vis Section 7
Explanation (c), when the suit has been filed by one of the
divorced spouse. In the said case, the suit was filed by divorced
wife. The maintainability of which was contested by the husband
by raising the following arguments at para 8. The same was
contested by the wife in para 9. Paras 8 & 9 are reproduced
hereunder :
8) Mr. Haris Beeran, learned counsel
appearing on behalf of the appellant, would
submit that having regard to the provisions
contained in Section 7 of the Family Courts
Act, 1984, the Family Court had no jurisdiction
to decide a dispute as regards properties
FAM No.105 of 2015
claimed by a divorced wife. The learned
counsel would urge that the jurisdiction
exercisable by any Family Court being
between the parties to a marriage which would
mean parties to a subsisting marriage. In
support of the said contention strong reliance
has been placed on a judgment of a Division
Bench of the Allahabad High Court in Amjum
Hasan Siddiqui v. Salma B. and Ponnavolu
Sasidar vs. Sub-Registrar, Hayatnagar .
9) Mr. T.L.V. Iyer, learned Senior Counsel
appearing on behalf of the respondent, on the
other hand, would contend that the matter is
covered by an inter-parties judgment passed by
a Division Bench of the Kerala High Court in
Abdul Jaleel v Sahida. As the appellant herein
did not question the correctness of the said
judgment, he cannot be permitted to turn round
and now challenge the jurisdiction the Family
Court.
15. Dealing with the above quoted contentions of the husband and
wife, the Supreme Court held thus in paras 10 to 12 :
10) The Family Courts Act was enacted to
provide for the establishment of Family Courts
with a view to promote conciliation in, and
secure speedy settlement of, disputes relating to
marriage and family affairs and for matters
connected therewith. From a perusal of the
Statement of Objects and Reasons, it appears
that the said Act, inter alia, seeks to exclusively
provide within the jurisdiction of the Family
Courts the matters relating to the property of the
spouses or either of them. Section 7 of the Act
provides for the jurisdiction of the Family Court
in respect of suits and proceedings as referred to
in the Explanation appended thereto.
Explanation (c) appended to Section 7 refers to
a suit or proceeding between the parties to a
marriage with respect to the property of the
parties or of either of them.
11) The fact of the matter, as noticed
hereinbefore, clearly shows that the dispute
between the parties to the marriage arose out of
the properties claimed by one spouse against the
other. The respondent herein made a categorical
statement to the effect that the properties were
FAM No.105 of 2015
purchased out the amount paid in cash or by
way of ornaments and the source of
consideration for purchasing the properties
described in Schedules 'A' and 'B' of the suit
having been borne out of the same, the appellant
herein was merely a trustee in relation thereto
and could not have claimed any independent
interest thereupon. It is also apparent that
whereas the agreement marked as Exhibit A1
was executed on 17.09.1994, the appellant
pronounced Talaq on 01.11.1995. 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.
12) 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.
[emphasis supplied]
16. In Suprabha (supra) holding that suit preferred by parents of
either of the spouses is not maintainable in the context of
Section 7 Explanation (c), the Division Bench of the Kerala High
Court held thus in para 5 :
5) When either the husband or the wife is
not alive and the suit is filed against the parents
of either of them, it cannot be said that it is a
suit or proceeding between the parties to a
marriage. The learned counsel for the appellant
relied on the meaning of the word "parties" in
Ramanatha Iyer's Law Lexicon as "the person
who take part in the performance of any act, or
who are directly interested in any affairs,
contract or conveyance or who are actively
FAM No.105 of 2015
concerned in the prosecution and defence of any
legal proceeding." The learned counsel for the
respondent on the other hand relied on the
meaning of the word "parties" in Black's Law
Dictionary, which reads: "The person who take
part in the performance of any act, or who are
directly interested in any affair, contract, or
conveyance, or who are actively concerned in
the prosecution and defence of any legal
proceeding". We are of opinion that in the
context of S. 7(c) the meaning of the words
"parties to a marriage" cannot be given such a
wide interpretation as to include all those who
are interested in the welfare of the couple or
those who take part to the marriage ceremony.
Therefore, the suit or proceeding must be
between the husband and the wife with respect
to the property of the parties or either of them.
Thus we are of opinion that S. 7(c) of the Act is
not applicable in such cases and the Family
Court was justified in holding so.
[emphasis supplied]
17. In a subsequent decision rendered by another Division Bench of
the Kerala High Court in Syamaladevi (supra) the earlier
judgment rendered by the said High Court in Suprabha (supra)
has been explained and distinguished in the following manner at
paras 8, 11 & 12 :
8) Learned counsel appearing for the
petitioner referred to a Bench decision of the
Andhra Pradesh High Court in Srihari v.
Sukunda, (2002 (1) KLT 101) : (AIR 2001 AP
169). There, a dispute between the family
members concerning to property arose for
resolution before the Family Court. One of the
spouse was not a party to the litigation. It was
held that it can never be considered as a cause
falling within the realm of the Family Court. On
facts, it was found that the case was one
concerning a dispute between the relatives of the
spouses. The factual details regarding the dispute
and the manner in which such dispute arose,
however, are not available in the said decision
for perusal. In Suprabha v. Sivaraman, (2006 (1)
KLT 712) : (AIR 2006 Ker 187) a Division
Bench of this Court held that 'when either of the
FAM No.105 of 2015
husband or the wife is not alive and the suit is
filed against the parents of either of them, it
cannot be said that it is a suit or proceeding
between the parties to a marriage and therefore
may not fall under Clause 7(c) of the Act. But the
claim for return of the gold ornaments and other
cash paid at the time of marriage was held to be
within the jurisdiction of the Family Court,
though one of the spouses was not alive at the
time when the case was filed. Thus, even if one
of the spouse is not alive, if the nature of the
dispute falls under Section 7(d) it will still fall
within the jurisdiction of the Family Court. This
is a direct answer to the decision of the Division
Bench of the Andhra Pradesh High Court, taking
a contrary view.
11) As we have already pointed out, the plain
language of the various clauses contained in
Explanation (a) to (g) cannot be restricted to the
dispute confining to the parties to the marriage
either during the subsistence of the marriage or
thereafter. Some of the dispute may even arise
after either of them dies. That is very clear from
the language of the expression used in Clause (b)
of Explanation 7. While Clause (a) and various
other clauses which we have already referred to
would show that the nature of the dispute dealt
with may be between the spouses; but it cannot
be said that the disputes referred to under
Clauses (c),(d) and (g) will be confined to the
parties to the marriage. In other words, a suit or
proceeding for an injunction may arise out of a
marital relationship but need not necessarily
between the spouses.
12).......On the other hand, a dispute may be
raised by the wife against the husband claiming
that a particular property belong to her and not to
him or that she had contributed to the acquisition
of the property though it stands in the name of
the husband. The husband, during the pendency
of the proceeding, if dies, the proceeding does
not become abated or ceased to be triable by the
Family Court. It will be continued by the heirs of
the husband claiming themselves to step into the
shoes of the husband or by those interested to
prosecute the matter. Therefore, one will have to
examine the factual situation to say whether the
dispute or claim falls under one or other category
FAM No.105 of 2015
which are mentioned in clauses (a) to (g) of
Section 7. In this case, the first respondent seeks
for a declaration that she is the wife of Bhaskara
Pillai and the second respondent claims to be the
child born out of that wedlock. Therefore, the
relief claimed by them squarely falls within
Clause (d) to Section 7 even though the dispute
have arisen after the death of Bhaskara Pillai.
18. Thus, in Syamaladevi (supra) the Division Bench of Kerala High
Court has held that the suit of the nature mentioned in Explanation
(c) of Section 7(1) may not be confined to the parties to the
marriage and in a given case a person who was not a party to the
marriage can also maintain such suit.
19. In an earlier single Bench judgment of the Kerala High Court in
Shyni (supra) the Family Court transferred the suit preferred by
the wife against her father-in-law in relation to the some amounts
gifted to her or her husband or jointly to them at the time of
marriage, to the civil Court. Setting aside the order of the family
Court holding that the suit can be tried by the family Court even if
one of the party was not party to the marriage, it was observed
thus in para 10 :
10) I have my own doubts whether the learned
Judge was right in holding that the liabilities of
the husband and the father-in-law are independent
of each other. One of the claims in the suit is for
recovery of the amount paid as streedhanam at
the time of the marriage or just prior to the
marriage of the petitioner with the first
respondent. The amount was given in connection
with the marriage. The other claim made by the
wife is for recovery of the value of the ornaments,
for recovery of the amount entrusted by the wife
to the husband and for her past maintenance. The
fact that the ornaments might have been entrusted
to the husband by the wife at a point of time
different from the time at which Streedhanam
amount was paid into the hands of the father-in-
law or that further sum belonging to the wife was
paid into the hands of the husband at a time
different from the point of time at which the
Streedhanam was handed over to the father-in-
FAM No.105 of 2015
law would not make those claims totally
independent of the claim against the father-in-law
since all these claims arise out of the matrimonial
dispute that has cropped up between the wife and
the husband which has led to the filing of an
application for restitution of conjugal rights by
the husband and the filing of the present suit by
the wife and also the filing of M.C. 236 of 1996
claiming maintenance against the husband. This
is therefore a clear dispute relating to a marriage
and family affairs between the spouses and hence
clearly within the purview of the Family Court.
The view adopted by the Family Court is
unnecessarily narrow and tends to defeat the very
object of the establishment of the Family Courts
and also tends to multiply litigation in different
fora arising out of a matrimonial dispute between
the spouses. I am therefore not in a position to
agree with the reasoning adopted by the Family
Judge.
20. The judgment rendered by the Division Bench of the Kerala High
Court in Syamaladevi (supra) holding a similar suit, like in the
present case, maintainable before the family Court, seems to have
missed the observation made by the Supreme Court in K.A. Abdul
Jaleel (supra) in para 11 clearly observing that the statement of
objects and reasons 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.
21. Despite the fact that the Supreme Court was considering the issue
arising out of a suit, which was preferred by one of the divorced
spouse, it is settled that even the obiter of the Supreme Court is
binding on the High Court. The observation that "the 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."
Therefore, it is difficult to follow the decision rendered by the
Division Bench of the Kerala High Court in Syamaladevi
(supra).
FAM No.105 of 2015
22. In view of the above, the appeal succeeds. The suit preferred by
the respondent herein, who is the father of deceased wife of the
appellant, before the family Court is held not maintainable. The
impugned judgment and decree is set aside for want of jurisdiction
of the family Court reserving liberty in favour of the respondent to
maintain the suit before the jurisdictional Civil Court.
23. As an upshot, the instant appeal is allowed, leaving the parties to
bear their own cost(s).
24. A decree be drawn accordingly.
Sd/- Sd/-
(Prashant Kumar Mishra) (Rajani Dubey)
Acting Chief Justice Judge
Gowri
HEAD NOTE
Suit of the nature mentioned in Section 7(1) Explanation (c) of the
Family Courts Act, 1984 filed by the father of the deceased wife
before the family Court, is not maintainable, as the suit can be
preferred only by parties to the marriage and not by any other
person.
