Amina Bharatram vs Sumant Bharatram & Ors
2018 Latest Caselaw 549 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 23rd January, 2018.

+                                   CS(OS) 411/2010

       AMINA BHARATRAM                                        ..... Plaintiff
                   Through:               Ms. Malvika Rajkotia and Mr.
                                          Vaibhav Vats, Advs.

                                    Versus

    SUMANT BHARATRAM & ORS                    ..... Defendants
                  Through: Mr. Dinesh Garg and Ms. Rachna
                           Agrawal, Advs. for D-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

The plaintiff has instituted this suit "for maintenance and separate residence under Sections 18, 20 & 23 of the Hindu Adoptions and Maintenance Act, 1956 and for permanent and mandatory injunction and declaration" claiming the following reliefs:

"a) a decree of maintenance be passed in favour of the plaintiff and against the defendants, awarding Rs.2.5 lakhs per month and appropriate orders be passed, securing the payment of the maintenance amount against/from the assets of the defendants.

b) Pass a decree of mandatory injunction against the defendants to continuing to pay the rent for the matrimonial home or in the alternative a decree be passed, directing the defendant to provide for residence/residential house for the plaintiff commensurate with the house No.S-70, Panchseel

Park, New Delhi-110017 in which the parties are living at present.

c) a decree for mandatory injunction be passed, directing the defendants to provide for two cars of appropriate make and two drivers for the use of the plaintiff, and her children as per the status of the family.

d) A decree of permanent injunction be passed against the restraining the defendant No. From throwing out the plaintiff from the matrimonial home i.e. House No.S- 70, Panchseel Park, New Delhi-110017.

e) Perpetual injunction be granted against the defendant from in any manner selling and/or alienating the property bearing No.L-1/4, Hauz Khas, New Delhi- 110016.

f) Direct the defendant to pay litigation expenses.

g) to declare that the court fee under Section 18, 20 And 23 Of The Hindu Adoption & Maintenance Act, 1956 is payable after the decree has been passed as it works to the disadvantage of plaintiff.

h) costs of the suit be also awarded to the plaintiff.

i) Any other order or direction which this Hon'ble Court may deem fit and necessary in the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendant."

2. The plaintiff, besides impleading her husband as defendant No.1 in the suit, has also impleaded as defendants No.2 to 4, the father, mother and brother of her husband.

3. The suit was entertained. The defendant No.1 filed an application under Section 8 of the Family Courts Act, 1984 contending that this Court has no jurisdiction to entertain the suit and the jurisdiction only lies with the Family Court under the Family Courts Act.

4. Vide judgment dated 9th June, 2014 on the aforesaid application, the following questions were referred to a larger Bench of this Court:

"(i) Whether the High Court while exercising the Original Civil Jurisdiction is deemed to be a District Court within the meaning of Section 2(4) of CPC in the context of Section 7(1)(a) of the Family Courts Act, 1984?

(ii) Whether the original civil jurisdiction of the High Court excluded for any suit or petition by virtue of Sections 7 & 8 of the Family Courts Act, 1984."

5. The Division Bench has answered the reference aforesaid vide its judgment dated 19th July, 2016 reported as Amina Bharatram Vs. Sumant Bharatram AIR 2016 Del 171 as under:

"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."

6. In pursuance to the aforesaid judgment of the Division Bench, the following Practice Direction was issued by this Court on 23 rd December, 2016:

"1. In view of the judgment dated 19.07.2016 passed by the Hon'ble Division Bench of this Court on reference in CS(OS) No.411/2010 & I.A. No.12186/2010 titled "Amina Bharatram Vs. Sumant Bharatram and Others", all matters enumerated in Explanation to Sub-Section (i) of Section 7 and Section 8 of the Family Courts act, 1984 shall be exclusively triable by the Family Courts and the jurisdiction of the High Court to the extent it exercises Ordinary Original Civil Jurisdiction in respect of such matters stands excluded by virtue of Section 8(c)(ii) of the said Act. Such matters listed before this Court shall be transferred to the Family Courts by passing the necessary Orders in this respect on their dates of listing.

2. The Registry, henceforth, is directed not to accept such matters as enumerated in Explanation to Sub Section

(i) of Section 7 and Section 8 of the Family Courts Act, 1984."

7. This suit however continues before this Court, with the counsel for the plaintiff contending that, notwithstanding the judgments dated 9 th June, 2014 and 19th July, 2016 supra, the present suit has to continue in this Court only and the counsel for the defendant No.1 contending that in accordance with the judgment of the Division Bench and the Practice Direction aforesaid, the present suit is liable to be transferred to the Family Court.

8. The gravamen of the contention of the counsel for the plaintiff is that since in the present suit, besides the husband of the plaintiff, others i.e. father-in-law, mother-in-law and brother-in-law of the plaintiff are also parties, this suit is not liable to be transferred to the Family Court.

9. The counsel for the plaintiff contends that I have in Manita Khurana Vs. Indra Khurana AIR 2010 Delhi 69, held that when a third party to a marriage has an interest in the suit and is a party thereto, the suit is not liable to be transferred to the Family Court. It is contended that though in the judgment dated 9th June, 2014 as well in the judgment dated 19th July, 2016 supra of the Division Bench, Manita Khurana supra has been noticed but the Division Bench has not answered as to what would be the fate of the jurisdiction of the Civil Court, if besides the parties to the matrimony, other family members are also parties to the suit. It is further contended that this question is thus still open for consideration.

10. Per contra, the counsel for the defendant No.1 states that after the judgements dated 9th June, 2014 and 19th July, 2016 of the Division Bench, there is no scope for any ambiguity. Reliance is also placed on Jasmeet Kaur Vs. Navtej Singh 2018 I AD (Delhi) 165 but which is a case of anti suit injunction and not of parties other than the parties to the matrimony being parties to the suit. It is the contention of the counsel for the defendant No.1 that the claim of the plaintiff in the present suit is only for maintenance and residence and not for any other relief and which claim can be only against the defendant No.1.

11. Per contra, the counsel for the plaintiff has argued that the plaintiff is also claiming right of maintenance and residence in the properties of Hindu Undivided Family (HUF) of which her husband defendant No.1 is a member and the defendants No.2 to 4 are the Karta/other members.

12. None appears for defendants No.2 to 4 and the counsels inform that the defendants No.2 to 4, on service of summons of this suit, had appeared

through counsel and made an application being IA No.5027/2010 for deletion from the array of defendants stating that they have no concern with the suit and no relief in the suit had been claimed against them.

13. The counsel for defendant no.1 further contends that no relief with respect to any HUF has been claimed.

14. Per contra, the counsel for the plaintiff states that the defendant no.1, by taking the plea, of the properties being of the HUF, is attempting to defeat the claims of the plaintiff on the said premise.

15. I have drawn the attention of the counsel for the plaintiff to Clause

(f) of the Explanation to Section 7(1) of the Family Courts Act and which provides that "a suit or proceeding for maintenance" is a suit or proceeding over which the Family Court has exclusive jurisdiction. The reliefs claimed in this suit are of maintenance and residence only. It is settled position in law (see Sections 3(b), 20 & 23 of the Hindu Adoptions & Maintenance Act, 1956, State of Haryana Vs. Santra (2000) 5 SCC 182, Padmja Sharma Vs. Ratan Lal Sharma (2000) 4 SCC 266, B.P. Achala Anand Vs. S. Appi Reddy (2005) 3 SCC 313, Mahima Vs. DDA 2014 SCC OnLine Del 3661, Tilak Kumari Vs. Anand 2001 (59) DRJ 580 and Kishan Dutt Verma Vs. Baby Parul 2004 (74) DRJ 8) that residence is a facet of maintenance. Attention of the counsel for the plaintiff has further been drawn to the fact that unlike some of the other Clauses of the Explanation aforesaid which qualify the words "a suit or proceeding" with further words "between the parties to a marriage", Clause (f) to the Explanation to Section 7(1) of the Act is not qualified by any such words; it is enquired, would it not tantamount to a suit or

proceeding for maintenance, as the present is, squarely falling within the jurisdiction of the Family Court, even if besides the parties to the marriage, other persons are party thereto.

16. A Division Bench of the High Court of Bombay, in Mansi Vs. Aniruddha Ramchandra Pulaskar MANU/MH/0370/2002 held that the first four Clauses of the Explanation to Section 7(1), i.e. Clauses (a) to (d) are concerning matrimonial proceedings; however Sub-Clause (e), (f) and

(g) are concerning legitimacy of a person and concerning maintenance and guardianship-they are specifically included so that these kind of controversy are also decided in the same Court rather than driving parties to file proceedings in Civil Court for that purpose. A suit or proceeding for maintenance, by the daughters against the father, was thus held to fall in Clause (f) of the Explanation to Section 7(1).

17. The counsel for the plaintiff then states that she is not raising the issue as an adversarial one and only for clarity.

18. I have perused the plaint and am unable to find any reference therein to any HUF. The counsel for the plaintiff, on enquiry, has drawn attention to para 68(i) of the plaint where reference is made to the liability and responsibility of a Karta and patriarch of a joint family with regard to settling his daughter-in-law and to para 68(iii) where reference is made to a legal question, whether Section 18 of the Hindu Adoptions and Maintenance Act violates the right of a wife, who is a member of a HUF. Attention is also invited to para 11 of the plaint, where it is pleaded that all the family companies and other assets owned by the defendants are the

properties jointly held by the family which includes the husband of the plaintiff.

19. I have enquired from the counsel for the plaintiff, whether not the claim of the plaintiff, even on said grounds, will be out of the share of her husband only and cannot be independent of or higher than that of her husband.

20. The counsel for the plaintiff agrees.

21. Once it is so, then Clause (f) of Explanation to Section 7(1) of the Family Courts Act would apply squarely and the claim of the plaintiff in the present civil suit would be of a nature which the Family Court has been vested with exclusive jurisdiction.

22. As far as Manita Khurana supra is concerned, the husband of the plaintiff therein was not even a party to the suit and it was held that the claim of a third party to a marriage, even if he/she be the mother of one of the spouses, cannot be adjudicated before the Family Court. The same thus cannot be said to be affecting the present suit in any manner whatsoever.

23. No merit is thus found in the contention of the counsel for the plaintiff.

24. The suit thus, in accordance with the Practice Direction aforesaid, is ordered to be transferred to the Family Court.

25. The counsels, on enquiry, state that the jurisdiction to entertain the suit would be of Family Court, District-South, Saket Courts, New Delhi.

26. The files of the suit be forthwith transferred to the Court of Principal Judge, Family Court, District-South, Saket Courts, New Delhi.

27. The parties to appear before the Court of Principal Judge, Family Court, District-South, Saket Courts, New Delhi on 8th March, 2018.

RAJIV SAHAI ENDLAW, J.

JANUARY 23, 2018 „bs‟