Madras High Court

H.Shabbir Sharif vs R.Sheerin Fathima on 15 September, 2023

                                                                                          CRP No.2955 of 2023

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED:15.09.2023

                                                              CORAM:

                                    THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN

                                             Civil Revision Petition No.2955 of 2023

                     H.Shabbir Sharif                                            ...Petitioner

                                                                 Vs.

                     R.Sheerin Fathima                                           ...Respondent

                                  Civil Revision Petition filed under Article 227 of the Code of Civil

                     Procedure          to   set   aside   the   order   dated      11.01.2023   made     in

                     O.S.SR.No.234 of 2023 on the file of the learned Principal District Judge,

                     Chengalpet and direct the appropriate court to take the case on file and

                     number the same.



                                        For Petitioner       : Mr.K.D.Arunkumar


                                                             ORDER

The present petition has been filed to set aside the order dated

11.01.2023 made in O.S.SR.No.234 of 2023 on the file of the learned

Principal District Judge, Chengalpet and direct the appropriate court to take

the case on file and number the same.

https://www.mhc.tn.gov.in/judis

2. The brief facts of the case are as follows:-

CRP No.2955 of 2023

The petitioner, who is the plaintiff has preferred O.S.SR No.234 of

2023 seeking to pass a decree to declare the 'Talak' issued by the

petitioner / plaintiff as valid and binding upon the respondent and to grant

such other suitable reliefs. The said suit was rejected by the court below

on the ground not maintainable, hence this Revision.

3. The learned counsel for the petitioner would submit that the court

below had returned the plaint with a direction to file in the appropriate court,

however, without a specific direction to the specific court is against the

principles of natural justice. Further, the Family Court, Chengalpet has also

returned the plaint, the court below did not exercise its discretion, which

has caused serious prejudice to the petitioner, thereby pleaded to allow the

present Revision.

4. Heard the learned counsel for the petitioner and perused the

documents placed on record.

5. On perusal of the affidavit filed by the petitioner and the order

passed by the court below, it is seen that the learned Principal District

Munsif, Alandur has returned the plaint pointing out certain defects on

31.10.2022 and the learned counsel for the petitioner / plaintiff has

complied with the said defects and represented to the Family Court, https://www.mhc.tn.gov.in/judis

CRP No.2955 of 2023

Chengalpattu. Thereafter, the said plaint was again returned by the Family

Court, Chengalpattu on 28.11.2022 seeking a reason as to 'How the

petition maintainable as per Tamilnadu Government Gazette Notificiation

VI dated 11.12.2013' and the same was complied with by the learned

counsel for the petitioner and represented. Again, the learned Principal

District Judge, Chengalpattu returned the plaint stating that 'how the suit is

maintainable under Section 15 of CPC and directed to present the plaint

before the proper court, having jurisdiction.” Left with no other option, the

petitioner has come up with the present petition.

6. At this juncture, it is relevant to point out the Judgment rendered

by the Hon-ble Division Bench of High of Kerala, Ernakulam in

Mat.Appeal.72/2021, OP (FC).372/2020, OP (FC).124/2021, OP

(FC).133/2021 etc., batch dated 09.04.2021, wherein the Hon-ble Division

Bench has categorically dealt with the said cases and the Jurisdiction of

Family Court in matters Related to Extra Judicial Divorce was extensively

dealt with. Also, this Court being bound by the said Judgment is inclined to

follow the same by quoting the relevant provisions, which are applicable to

the facts and circumstances of the present case on hand.

“76. ...In the matter of talaq, khula, mubaraat, talaq-e- tafwiz, the Family Courts shall entertain such applications moved by either of the parties or both parties to declare the marital status of such parties. In the matter of unilateral https://www.mhc.tn.gov.in/judis

CRP No.2955 of 2023

dissolution of marriage, invoking khula and talaq, the scope of inquiry before the Family Courts is limited. In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. If any person want to contest the effectiveness of khula or talaq, it is open for such aggrieved person to contest the same in appropriate manner known under law. In the matter of mubaraat and talaq-e-tafwiz, on being satisfied that the dissolution is being effected on Mutual consent, the Family Court without further inquiry shall declare the marital status. We notice Family Courts are overburdened with large number of cases. The Family Court therefore, shall restrain from adjudicating upon such extra judicial divorce unless it is called upon to decide its validity in appropriate manner. The Family Court in such matters shall endeavour to dispose the cases treating it as uncontested matter, without any delay by passing a formal order declaring the marital status.

Further, the same was also followed by this Court earlier, while dealing with

CRP No.1641 of 2021 dated 21.04.2021.

7. As far as the present case on hand, as per the aversion of the

petitioner, right from the date of marriage the petitioner and the respondent

were not living happily, viz., 20.12.2018. the learned Principal District

Munsif, Alandur, Family Court, Chengalpattu and Principal District Judge,

Chengalpattu has refused to entertain the petition in the light of provisions

under Section 7(1)(b) Family Court Act; as per Tamilnadu Government

Gazette Notification VI dated 11.12.2013 and under Section 15 of CPC https://www.mhc.tn.gov.in/judis

CRP No.2955 of 2023

respectively. It is just and necessary to extract the relevant provisions of

G.O.Ms.No.1136 dated 11.12.2013 wherein in Notification VI it is

mentioned as follows:-

“In exercise of the powers conferred by clause (b) of Sub Section (1) of Section 3 read with sub-section (2) of Section 3 of the Family courts Act, 1984 (Central Act 66 of 1984), the Governor of Tamilnadu, after consultation with the High Court of Madras, hereby establishes a Family Court at Chengalpattu with effect from the date of assumption of charge of the Judge of the said Court and also hereby specifies that the jurisdiction of the said Family Court shall extend to the local limits of the Chengalpattu Taluk, inclusive of Chengalpattu Town.”

8. As already mentioned supra the court below, in such

circumstances, is neither called upon to adjudicate nor called upon to

dissolve the marriage by decree of divorce. On the other hand, the Family

Court only has to declare the marital status invoking jurisdiction under

Explanation (b) of Section 7(1) of the Family Courts Act. Once a

declaration of divorce is produced before the Family Court, the Family

Court has to pass a decree declaring the matrimonial status of the parties.

Hence, this Court is of the considered view that the Family Court is bound

to entertain a petition.

9. In view of the above, the order passed by the learned Principal

District Judge, Chegalpattu in O.S.Sr.No.234 of 2023 dated 11.01.2023 is https://www.mhc.tn.gov.in/judis

CRP No.2955 of 2023

set aside and the Family Court, Chengalpattu has appropriate jurisdiction.

Therefore, the petitioner is directed to approach the Family Court,

Chengalpattu and the said Court is hereby directed to take up the matter

and dispose of the same without any further delay treating it as an

uncontested matter in the light of the guidelines issued by the Hon-ble

Division Bench, High Court of Kerala, Ernakulam in the Mat.Appeal

No.72/2021 OP (FC) 372/2020, OP(FC) 124/2021 OP (FC) 133/2021 etc.,