Suraj Seth vs Ruchika Abbi
2014 Latest Caselaw 6192 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Pronounced on: 26th November, 2014
+       CS (OS) 2902/2014
        SURAJ SETH                                                  ..... Plaintiff
                                Through:   Mr. Jagat Singh, Adv. with
                                           Mr. Bhagat Singh, Adv.

                                versus

        RUCHIKA ABBI                                          ..... Defendant
                                Through:   Mr. Anil Malhotra, Adv. with
                                           Mr. Rajat Bhalla, Adv. and
                                           Defendant in person.
        CORAM:
        HON'BLE MR. JUSTICE G.P. MITTAL


G.P. Mittal, J. (Oral)

IA No.19884/2014 (O.VII Rule 11 CPC) in CS(OS) 2902/2014

1. This suit for declaration and injunction has been filed by the Plaintiff

primarily seeking ante suit injunction. The Plaintiff is the husband of

the Defendant. As per the averments made in the plaint, the parties

got married in January, 2001 at New Delhi according to Hindu rites

and ceremonies.

2. According to the Plaintiff, after the marriage, the parties stayed at

Virginia, USA. They were blessed with a baby girl on 24.12.2007.

Certain averments have been made about the ill habits of the

Defendant in para 4 and other paragraphs of the plaint which are not

very relevant for disposal of the instant application moved by the

Defendant for rejection of the plaint. The sum and substance of the

averments made is that the Defendant had initiated proceedings in

Virginia, USA which according to the Plaintiff are malicious,

oppressive, vexatious, false and frivolous. It is averred that invocation

of the judicial process in USA is the abuse of process of law and

against settled principles of law, treaties, conventions and judicial

procedure. The Plaintiff states that inspite of the best efforts of the

Plaintiff to save the marriage for the welfare and interest of the child

Roshni Seth born in the year 2007 and making various concessions,

the same proved of no avail.

3. It is case of the Plaintiff that elders including the parents of both the

parties and family friends intervened to bring to an end to the ongoing

and unending marital discord between the parties. The parties

therefore, came to India in April, 2013 and a settlement/agreement

was entered into between the parties on 19.04.2013 and reduced to

writing.

4. One of the grievances of the Plaintiff is that the Defendant is not

complying with the terms of the agreement and on the other hand,

initiated the proceedings in USA which as stated earlier are malicious

and oppressive.

5. This application under Order VII Rule 11 of the Code of Civil

Procedure, 1908 (CPC) running into 45 pages has been filed by the

Defendant for rejection of the plaint primarily on the ground that the

jurisdiction of the Civil Court to entertain the suit with regard to

family matters is barred because of the explanation (d) and (g)

appended to Section 7 of the Family Courts Act, 1984 (the Act).

Section 7 of the Act is extracted hereunder:-

"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 subsection are suits and proceedings of the following nature, namely:

a. a suit or proceeding between the parties to a marriage for decree of a nullity 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;

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."

6. Learned counsel for the Defendant has referred to the order dated

07.11.2014 passed by the Division Bench of this Court in W.P.(Crl.)

No.1735/2014 to urge that the Plaintiff has himself chosen the remedy

before the Family Court and that is why, he has preferred a Guardian

Petition and therefore, the Plaintiff himself has admitted that the

jurisdiction of the Civil Court is barred.

7. Learned counsel for the Defendant has also referred to Vibha Suri v.

Vikram Suri, 2010 (167) DLT 577 to urge that in relation to family

matters, the Civil Court will not have any jurisdiction. Reference is

also made to Sandip Shankarlal Kedia v. Pooja Kedia, WP 2636/2013,

decided by the Bombay High Court on 29.04.2013. Heavy reliance is

also placed on K.A. Abdul Jaleel v. T.A. Shahida, AIR 2003 SC 252 to

contend that the Civil Court will not have any jurisdiction with regard

to matters provided for under Section 7 of the Act.

8. There is no dispute about the proposition of law that with regard to the

matters stated in Section 7 of the Act, exclusive jurisdiction vests only

with the Family Court wherever Family Courts have been established.

9. I have already extracted above the provisions of Section 7 of the Act.

A great emphasis has been made on Explanation 'd' and 'g' to Section

7 of the Act which bars (i) a suit or proceeding for an order or

injunction in circumstances arising out of marital relationship and (2)

a suit or proceeding in relation to guardianship of a person or the

custody of, or access to any minor. What Explanation 'd' refers to is

an injunction with regard to a marital relationship. Ante-suit injunction

is claimed to debar the Defendant from prosecuting the proceedings

before the Court in USA and thus, the instant suit cannot be said to be

to obtain an order of injunction arising out a marital relationship.

Similarly, the instant suit cannot be said to be a proceeding in relation

to the guardianship of any person or the custody of, or access to any

minor. In fact, it was stated by the learned counsel for the Plaintiff

that the Plaintiff is prepared to withdraw the instant suit if the

Defendant gives an undertaking that he will not prosecute his

proceedings in the Court of USA and will be bound by the

proceedings taken before the Family Courts in the Court of Competent

jurisdiction in Delhi.

10. Irrespective of the fact whether the Plaintiff has any case on merits or

not it cannot be said that the suit is barred in view of provisions of

Section 7 of the Act.

11. Thus, application under Order VII Rule 11 CPC is misconceived and

is devoid of any merit; the same is accordingly dismissed with costs of

Rs.20,000/-. Rs.10,000/- shall be paid to the Plaintiff and Rs.10,000/-

shall be deposited in the Prime Minister's Relief Fund within four

weeks.

IA No.18534/2014 (O.XXXIX Rules 1 &2 CPC) in CS (OS) 2902/2014

12. Learned counsel for the Plaintiff requested for a shorter date. Learned

counsel for the Defendant states that he is in personal difficulty and

some date may be given in January, 2015.

13. On request, list the application for hearing on 29.01.2015.

(G.P. MITTAL) JUDGE NOVEMBER 26, 2014 vk