Akula Rohith vs Muppidi Kishan Babu
2022 Latest Caselaw 4976 Tel

              HON'BLE Smt. JUSTICE P.SREE SUDHA

          CIVIL REVISION PETITION No.277 of 2022

                               ORDER

1. This revision is directed against the order dated

10.12.2021 passed in I.A.No.627 of 2021 in O.S.No.889 of 2021

on the file of the learned Principal Junior Civil Judge,

Karimnagar, whereby the application filed by the petitioner-

plaintiff-respondent herein under Section 39 Rules 1 and 2 CPC

is allowed.

2. O.S.No.889 of 2021 is filed by Muppidi Kishan Babu-

plaintiff, father of Kavya, against Akula Rohith-defendant. The

plaintiff performed the marriage of his daughter-Kavya with the

defendant on 15.12.2014 at Kalyani Gardens, Karimnagar.

Later Kavya and her husband Akula Rohith went to USA. The

plaintiff would submit that when his daughter Kavya conceived,

he along with his wife went to USA and after delivery of the baby

boy, they returned to India in the year 2015 along with their

daughter Kavya and her son Sanay. After arriving to India the

daughter of the plaintiff Kavya told to her parents that her

husband was harassed physically and mentally and sent

indecent messages to her in filthy language and she is not

interested to join with her husband at USA, but they convinced

Kavya and sent her along with her son Sanay to USA and there

the defendant is not taking care of them properly. When the

defendant intending to marry another woman Supriya, daughter

of Malyala Venkat Reddy on 29.11.2021 at Jagtial, the plaintiff

filed the present suit seeking injunction restraining the

defendant from contacting the second marriage with Supriya on

29.11.2021 or any other woman during the subsistence of

marriage between the defendant and plaintiff's daughter Kavya.

The plaintiff also stated that the defendant has to sign on the

passport of his son Sanay for every five years, but he came to

India without signing the passport and as such his daughter

could not come to India and on her oral instructions, the

plaintiff filed the present suit.

3. During the pendency of the proceedings in the suit, the

plaintiff filed an application viz., I.A.No.627 of 2021 is filed in

the suit seeking ad interim injunction restraining the defendant

from contacting second marriage with Supriya. Akula Rohith-

defendant filed a detailed counter denying all the allegations

made by the plaintiff in the suit and further stated that the

plaintiff's daughter Kavya herself approached the Circuit Court

of the Eighteenth Judicial Circuit Dupage Country, Illnois State,

to dissolve their marriage through decree in Case No.2020 D

2010 and their marriage was dissolved by the Court in USA and

there is no subsistence of marriage between him and Kavya, but

the plaintiff in the suit suppressed the same and filed it for

injunction. The defendant further stated that in view of the

dissolution of the marriage before the Foreign Court, they also

entered into a Memorandum of Understanding dated

27.04.2021 for financial settlement and as per the said

settlement between the parents of both sides, the gold

ornaments and cash of Rs.24,00,000/- was handed over to the

plaintiff herein. The defendant also disputed the jurisdiction of

the civil Court by stating that the Family Court is established

and functioning in Karimnagar within the local area of

jurisdiction over the entire municipal corporation area as per

G.O.Ms.No.136 dated 11.09.2006 and as both of them are

residing within the jurisdiction of Karimnager, the suit itself is

not maintainable and the plaintiff has to file a petition under

Order 7 Rule 11 CPC in view of Section 7(1)(d) of the Family

Courts Act, 1984 but not this suit. Section 7(1)(d) reads as

under:

'a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;'

4. By referring the above provision, the defendant mainly

contended that only Family Court is having jurisdiction but not

the civil Court.

5. Reply counter is filed by the plaintiff in the suit and

disputed the divorce decree granted by USA and contended that

the marriage between the parties is still subsisting.

6. The trial Court after considering the arguments advanced

by both the counsel, allowed the application and thereby the

ad interim injunction granted earlier is made absolute.

Aggrieved by the said order, the present revision petition is filed

by Akula Rohith-defendant.

7. Learned counsel appearing for the revision petitioner

contended that the revision is not maintainable against the

orders of the trial Court and the plaintiff has to prefer an appeal

under Order 43 Rule 1 CPC. Learned counsel would also argue

that the father of Kavya filed suit on behalf of his daughter

without having any General Power of Attorney to that effect and

that the plaintiff simply stated that on the oral instructions of

his daughter he filed the suit, and as such the plaintiff has no

locus standi to file the suit.

8. Learned counsel appearing for the respondent herein

would contend that as per the Family Courts Act if the parties

to the marriage filed any suit, it should be filed before the

Family Court, but in this case the father of Kavya filed the suit

against his son-in-law, and therefore, the suit filed by the

plaintiff in the civil Court is valid. Learned counsel would

further contend that the divorce decree granted by the USA

Court is on the ground of 'Irreconcilable differences have caused

the irretrievable breakdown of the marriage; efforts at

reconciliation have failed; and further efforts at reconciliation

would not be in the best interests of the parties;'. As the said

ground is not available under Section 13 of the Family Courts

Act, divorce is not valid.

9. Admittedly, the Court at USA granted divorce on

28.04.2021 and the marriage between the parties was dissolved

in pursuance of the said judgment. Both the parties entered

into a Memorandum of Understanding dated 27.10.2021 and

accordingly gold ornaments as well as the cash of

Rs.24,00,000/- was handed over to the parents of Kavya and

moreover in the Marital Settlement Agreement entered into

between the parties before the USA Court in Article XVIII -

General Provisions under the head 'Settlement of All Claims' it

was observed that '... This is intended to be a full and final

settlement between the parties and their families that each has

against the other or their family members whether arising under

the laws of the United States or India.'

10. Admittedly, Kavya has not filed any O.P. before the Courts

in India disputing the divorce decree granted by USA Court. Her

father stated that Akula Rohith has not signed the passport of

his son and as such Kavya could not come to India. At this

juncture, it is apposite to extract Section 7(1)(d) of the Family

Courts Act, 1984, which reads as follows:

      '7. Jurisdiction.--(1)      ...
                          (a)    ...
                          (b)    ...

Explanation.--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--

(a) ...

(b) ...

(c) ...

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;'

11. In the aforesaid provision, it was not specifically

mentioned that a suit or proceeding or an order of injunction

should be filed only by parties to the suit. In this case the father

of Kavya filed suit for injunction; when the Family Courts Act is

specifically says that a suit or proceeding or an order of

injunction arising within the territorial jurisdiction is to be filed

before the Family Court, the suit filed by the father of Kavya

before the learned Junior Civil Judge is without jurisdiction and

thus, the order of the trial Court is non est in the eye of law and

is liable to be set aside. The revision petitioner rightly pointed

out that the father of Kavya filed suit even without any

authorization or GPA from Kavya and still on that ground also

the suit is not maintainable. Therefore, this Court finds that it

is just and reasonable to allow the revision.

12. In the result, the civil revision petition is allowed and the

order under challenge is set aside.

13. Miscellaneous Petitions, if any, pending in this revision

shall also stand closed in the light of this final order.

____________________ P.SREE SUDHA, J.

10th OCTOBER, 2022.

PGS