Akil Pervez Son Of Tayab Fazal ... vs Tasnime D/O Siraze Houssen ...
2021 Latest Caselaw 11214 Guj

     C/FA/1622/2021                               JUDGMENT DATED: 09/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1622 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA

and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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              AKIL PERVEZ SON OF TAYAB FAZAL HUSAIN
                              Versus
        TASNIME D/O SIRAZE HOUSSEN MOHAMMED ALI ADAMALI
==========================================================
Appearance:
MS. KRUTI M SHAH(2428) for the Appellant(s) No. 1
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 09/08/2021

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This appeal under Section 19 of the Family Courts Act, 1984 (for short 'the Act') is at the instance of the original

C/FA/1622/2021 JUDGMENT DATED: 09/08/2021

plaintiff and is directed against the order dated 17.7.2019 passed by the Principal Judge, Family Court, Surat below Ex.1 in the Family Suit No.70 of 2019, by which after preliminary hearing the Family Court thought fit to return the plaint to the appellant herein for being presented before the Court of competent jurisdiction.

2. The impugned order reads thus :-

"Read the plaint. Heard the learned Advocate for the petitioner. Perused the record of the case.

2. The petitioner has presented this suit for a decree of declaration of his matrimonial status under the provisions of Section 7(b) of the Family Courts Act, 1984.

3. At the time of presentation of the suit, an objection was raised regarding jurisdiction to file the present suit before this Court, as the petitioner is residing at USA and the respondent is residing at Madagascar and their divorce has taken place at Mumbai and hence, the matter was for kept for hearing on the point of jurisdiction.

4. I have heard the learned advocate for the petitioner. The learned Advocate for the petitioner stated that the marriage of the parties took place at Surat and hence, as per provisions of Special Marriage Act, this Court has Jurisdiction to entertain this suit.

5. From the record and submission of the petitioner, it is clear that at present, the petitioner is residing at US and the respondent is residing at Madagascar and their divorce has taken place at Mumbai. The petitioner has filed the present suit for a decree of declaration of his matrimonial status under the provisions of Section 7(b) of the Family Courts Act, 1984 on the basis of the divorce took place at Mumbai and hence the cause of action arose at Mumbai as the divorce has been

C/FA/1622/2021 JUDGMENT DATED: 09/08/2021

taken place at Mumbai and hence the present suit does not cover under the purview of any personal law and so, the provisions of Section 20 of the Code of Civil Procedure are applicable for deciding the jurisdiction. That as per the Section 20 of the C. P. C., the suit to be instituted where the defendants reside or cause of action arises. In the present suit, the defendant resides at Madagascar and the cause of action arose at Mumbai as the divorce that has taken place at Mumbai, on which basis the suit for decree of declaration of the matrimonial status is filed.

6. Considering the provisions of law as well as the factual aspects of the matter, I find that this court has no jurisdiction to entertain this suit and the plaint is required to be returned to the petitioner for its presentation before the proper Court having jurisdiction and I pass the following order :-

ORDER

The plaint be returned 'to the applicant for its presentation before the proper court having jurisdiction.

      Date : 17-07-2019          (Ketankumar Jashvantsinh Dasondi)
      Place : Surat                             Principal Judge,
                           Family Court, Surat code : GJ00200"

3. We shall now look into the plaint of the Family Suit which reads thus:-

"Plaintiff : Mr. Akil Pervez Son of Mr. Tayab Fazal Husain, Applicant Religion : Shia Dawoodi Bohra Sect of Muslim Personal Shariat Law, Aged about: 30 years, Occupation: Service, Residing at : 25 Morrissey Blvd. # 1339, Boston, MA 02125, USA.

VERSUS

Defendant Tasnime Daughter of Mr. Siraze Houssen

C/FA/1622/2021 JUDGMENT DATED: 09/08/2021

Opponent Mohammed Ali Adamali, Religion: Shia Dawoodi Bohra Sect of Muslim Personal Shariat Law, Aged about: 29 years, Occupation: Not known, Residing at : LOT IVL2J, Ambodivonkely, Ambohimanarina, 101 Antananarivo, Madagascar.

Phone: +261 340572538 Email : [email protected]

Subject : Suit for declaration of Divorce Under Section 7(b) of The Family Courts Act, 1984, as applicable in India.

The plaintiff abovenamed most respectfully prays that :-

The plaintiff is a male who married to the defendant woman on the 16th day of May, 2015 A.D. at Surat, according to Muslim Shariat Law as the marriage between the plaintiff and defendant took place in the Surat city, the same has been registered with the Registrar of Marriages, Central Zone, Surat Municipal Corporation on 21st day of May, 2015 A.D. at Number: CZ/2015/2450. The plaintiff ordinarily resides in the United States of America and has specially come to India (Surat) for filing and instituting this suit.

(2) The defendant gave birth to a female child whose name is INSIYA TAYYEB from the wedlock of/ with the plaintiff abovestated. Thereafter, the plaintiff and the defendant found and realized that there was a vast chasm of difference of life style and ideology, having been assured and confirmed as to the same, both (the plaintiff and the defendant) finally came to the conclusion that they could not live in harmony as husband and wife any longer. Hence, both the parties (the plaintiff and the defendant) out of their sweet will and with mutual consent decided to end the marital relationship through divorce. Therefore, they approached the priest Shaikh Nooruddin Yamani to effect Talakul Mubaraat which is a divorce in accordance with and governed under The Shia Dawoodi Bohra Sect of Muslim Personal Shariat Law (Fatimid Law). Eventually the divorce between the plaintiff and the defendant took place on the English calendars 29th day of

C/FA/1622/2021 JUDGMENT DATED: 09/08/2021

October, 2016 A.D. before the Priest Shaikh Nooruddin Yamani according to the rites and rituals of the aforesaid Muslim Personal Shariat Law (Fatimid Law).' Since that day of divorce i.e. 29th October, 2016, they (the plaintiff and the defendant) have been living separately and since then both are free to remarry according to each one's own choice.

(3) The plaintiff and the defendant have mutually agreed that the custody of Insiya Tayyeb will remain with the defendant however Akil shall be at liberty and allowed to meet his daughter in Insiya on phone as well as in person as and when the plaintiff desires. The parties have further agreed and decided that the defendant shall impart and manage to impart good education and over all development infrastructure to INSIYA in accordance with Dawoodi Bohra Shariat; that the defendant shall not under any circumstances give INSIYA by way of adoption to any one without the permission and consent of the plaintiff in writing; that the name of Insiya is not to be changed by either party; that the parties have no claim against each other and the same has been confirmed by both the patties.

(4) The plaintiff is desirous to remarry another spouse and he has reason to visit, travel, settle in other countries, for these purposes it is required to obtain Order-Decree as to divorce from the Competent Court as sought for in this suit and hence this suit.

(5) The plaintiff states that there is no other legal proceedings pending between the parties to the suit in any other Hon'ble Court in India or anywhere in the world.

(6) The plaintiff states that there does not exist any kind of joint properties of the parties to the suit anywhere in the world.

(7) The cause of action for this suit arose on 29th October, 2016 when the marriage between the parties was dissolved (divorced) and daily thereafter within the jurisdiction of this Hon'ble Court.

(8) The marriage of parties took place in Surat City. The

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Hon'ble Court has jurisdiction to entertain, try and determine this suit.

(9) This suit is not barred by law of limitation/time.

(10) The Court fees of Rs. 50/- has been affixed on the plaint.

(11) This petition has been filed along with the separate list of documents appended herewith presently. The petitioners shall produce other documents when required.

(12) The plaintiff humbly prays that this Hon'ble Court .

(a) be pleased to pass an Order and Decree in English language, declaring the marriage solemnized between the plaintiff and the defendant on the 16th day of May, 2015 A.D. be dissolved.

(b) Be pleased to award any other reliefs which may be deemed to be fit and proper."

4. Thus, it appears that the appellant herein instituted the Family Suit to seek a declaration that the marriage between the appellant and the respondent stood dissolved in accordance with the Muslim Personal Shariat Law on 16.5.2015 at the United States of America.

5. The facts of the present litigation are as complicated as the disturbed matrimonial life of the parties.

6. As there was some confusion as regards the dates and events, Ms. Shah has provided us the correct information in the form of a note which reads thus :-

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"1. The appellant and opponent got married on 16.05.2015 at Surat according to Muslim Shariyat Law.

2. The marriage was registered with the Registrar of Marriages, Central zone, SMC on 21.05.2015 under the provisions of Gujarat Registration of Marriages Act, 2006 (for short 'the Act, 2006').

3. Both the parties were of Indian Nationality at the time of solemnization of marriage.

4. The plaintiff-appellant-husband resides in USA. The wife-opponent-defendant resides at Madagascar.

5. The divorce between the plaintiff and defendant took place on 29.10.2016 before the Priest under Muslim Personal Shariyat Law at Woodlands Texas, America.

6. The form of dissolution of marriage was originally in Arabic language which came to be translated in English language by the advocate of the Mumbai High Court at Mumbai on 10.04.2019."

7. As the plaint came to be returned, the appellant has come up before this Court with the present appeal.

8. We have heard Ms. Kruti Shah, the learned counsel

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appearing for the appellant. The respondent although served with the notice issued by this Court yet has chosen not to remain present before this Court either in person or through an advocate and oppose this appeal.

9. So far as the Muslim Personal Law (Shariyat Application) Act, 1937 is concerned, there is no specific provision regarding territorial jurisdiction of the Court to adjudicate matrimonial disputes. Besides the same Section 4(5) of the Act, 1937 which pertains to the dissolution of marriage came to be repealed by the Dissolution of Muslim Marriages Act, 1939. The Act 1939 is also silent so far as the jurisdiction of the Court is concerned.

10. Section 7 of the Family Courts Act reads thus :-

"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,

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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 circumstance 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."

11. Indisputably the marriage was solemnized at Surat. The

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marriage was registered with the Registrar of Marriages, Central Zone, SMC under the provisions of the Act, 2006. In such circumstances, we are of the opinion that the Family Court, Surat could be said to have the jurisdiction to entertain the suit instituted by the appellant seeking appropriate declaration as regards the status of the marriage of the parties.

12. We are of the opinion that the impugned order cannot be said to be in accordance with law on the point of jurisdiction and, therefore, we quash and set aside the impugned order. The Family Court shall register the family suit and thereafter proceed further to decide the same in accordance with law.

13. We direct the Family Court to decide the suit within a period of six months from the date of receipt of the order. It appears that the other side is not at all interested in opposing the suit instituted by the appellant. The respondent is now happily remarried and has settled at Madagaskar. In such circumstances, there should not be any delay on the part of the Court below in disposing of the suit in accordance with law on the premise that the respondent has not appeared.

14. With the aforesaid, this appeal stands disposed of.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED