AO/134/2021
2021 Latest Caselaw 2594 UK

           IN THE HIGH COURT OF UTTARAKHAND
                               AT NAINITAL
       THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN

                                     AND

                 THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

           APPEAL FROM ORDER NO. 134 OF 2021

                              26TH JULY, 2021

BETWEEN:

Smt. Rekha Negi & others                                   .....Appellants.


And

Smt. Dimple Negi & others                                  ....Respondents.

Counsel for the Appellants : Mr. Neeraj Garg, learned counsel.

Counsel for the respondents           :     Mr.   Rajendra     Arya,    learned
                                            counsel for    caveator/respondent
                                            Nos.1 and 2.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

Aggrieved by the order dated 06.07.2021, passed

by the learned Principal Judge, Family Court, Dehradun in

Original Suit No.456 of 2021, whereby the learned Family

Court has dismissed their application under Order VII Rule 10

& 10-A of C.P.C., the defendants-appellants are before this

Court in the present appeal.

2. Briefly, the facts of the case are, that the plaintiffs-

respondents, Smt. Dimple Negi, and Km. Pari Negi, had filed

a civil suit before the Family Court for seeking a declaration

that the plaintiffs are the legal heirs of Late Mr. Vishamber

Singh, that they have right and interest in the movable and

immovable properties of Mr. Vishamber Singh after his death.

They had also sought a declaration that they are entitled to

the death benefits which would be released by the Oil and

Natural Gas Corporation (for short "the ONGC"), defendant

No.4. They had further sought a permanent injunction in their

favour against defendant Nos.1 to 3, who according to the

plaintiffs were the first wife of Late Mr. Vishamber Singh, and

his two children from the first wife.

3. According to plaintiff No.1, she met Mr. Vishamber

Singh through Facebook. They fell in love with each other. He

informed her that his first wife had expired, and his two

children were staying with their grandparents. Therefore, he

is looking for a companion for himself. The plaintiff No.1, and

Mr. Vishamber Singh got married on 15.10.2016 at

Gurudwara Shri Guru Singh Sabha, situated at Mahinder Park,

Delhi. At the time of marriage, while the plaintiff No.1 was

residing in Delhi, Mr. Vishamber Singh was residing in

Dehradun, and working with the ONGC. After the marriage,

Mr. Vishamber Singh brought the plaintiff No.1 to his house

situated at Yamnotri Enclave Store, Phase-II, Chanderbani

Road, near Kothari General Store, Dehradun. During the

marriage, on 19.09.2018, the plaintiff No.1, and Mr.

Vishamber Singh were blessed with a daughter. A few years

after their marriage, and after the birth of their daughter, Mr.

Vishamber Singh informed the plaintiff No.1 that he had lied

about his first wife (defendant No.1 in the Civil Suit). It is not

that she had died, but he had taken divorce from her. He

further informed the plaintiff No.1 that he had already settled

the permanent alimony with his first wife. During the COVID-

19 pandemic, unfortunately, Mr. Vishamber Singh died on

12.05.2021. After his death, the plaintiffs approached the

ONGC for completing the formalities pertaining to the death

benefits. However, the plaintiff No.1 was shocked to know

that the name of Mr. Vishamber Singh's first wife, i.e. the

name of the defendant No.1, Smt. Rekha Negi, continued to

be recorded in the official record of the ONGC.

4. The plaintiff No.1 further claimed that,

immediately, after the death of Mr. Vishamber Singh, on

26.05.2021, the defendant Nos.1 and 2 came to her house,

and told her to immediately vacate the house, failing which

she would face dire consequences. Moreover, subsequently,

on 27.05.2021, she has learnt that the defendant No.1 is

planning to sell the house. When she questioned the

defendant Nos.1 and 2 as to why they are planning to sell the

house, she was again threatened by defendant No.2.

Consequently, in order to save her life and property, the

plaintiff filed a complaint before the Senior Superintendent of

Police, Dehradun. But, so far, no action has been taken by

the police.

5. The plaintiff further claimed that on 30.05.2021,

defendant Nos.1 and 2 came with anti-social people, and

forcefully tried to evict the plaintiffs from the ground floor of

her house. Further, their illegally entered the first floor of the

said property. Ever since then, the defendants Nos.1 to 3 are

staying on the first floor. They continued to threaten the

plaintiff. Therefore, the plaintiffs filed the suit for declaration

and permanent injunction. Along with the suit, the plaintiffs

filed an application for temporary injunction.

6. The defendants had filed an application under Order

VII, Rule 10 & 10-A of C.P.C., wherein they claimed that the

suit was neither between the parties married to each other,

nor between any property involving the parties who are/were

married to each other. Furthermore, the suit was not filed for

declaration of a matrimonial status. Therefore, according to

the defendants-appellants, the suit was not maintainable.

Hence, the plaint deserved to be returned to the plaintiffs.

7. However, by order dated 06.07.2021, the learned

Principal Judge, Family Court has dismissed the application

filed by the defendants-appellants. The learned Family Court

has concluded that the suit is, indeed, maintainable under

Section 7 of the Family Courts Act, 1984. Hence, the present

appeal before this Court.

8. Mr. Neeraj Garg, the learned counsel for the

appellants has pleaded that, firstly, the suit does not deal

with two parties who are married to each other.

Secondly, it does not deal with a property of two

parties who are married to each other. In fact, the suit is for

declaration and permanent injunction against the first wife of

Late Mr. Vishamber Singh, and his two children from the first

marriage. Therefore, the suit is a civil suit simpliciter for

declaration and permanent injunction. Hence, the learned

Family Court would not have the jurisdiction to try the same.

Thirdly, the present case is completely covered by

the judgment of the Hon'ble Supreme Court in the case of R.

Kasturi & others vs. M. Kasturi & others, (AIR 2018 SC

786). However, the learned Family Court has ignored the

said judgment.

Fourthly, the issues raised by the plaintiffs require

exhaustive and elaborate evidence within the parameters of

the Indian Evidence Act. Since, the learned Family Court is

not required to strictly adhere to the Indian Evidence Act, it

may lead to grave injustice to the defendants-appellants.

Therefore, the impugned order deserves to be set-aside by

this Court.

9. Heard the learned counsel for the appellant, and

perused the impugned order.

10. Section 7 of the Family Courts Act is as under:-

"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, 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, 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 of proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit of proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit of 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. The Explanation defines the jurisdiction of the

Family Court. According to clause (a) of Section 7(1) of the

Family Courts Act, a suit is maintainable where the parties

are married to each other, but are seeking decree of nullity of

marriage, or restitution of conjugal rights, or judicial

separation, or dissolution of marriage. Thus, under clause (a),

it is imperative that both the parties be married to each

other. But according to clause (b), it is not essential that the

parties be married to each other. For clause (b) permits a suit

to be filed for a declaration as to the validity of a marriage, or

as to the matrimonial status of any person. Therefore, a suit

can be filed by a woman seeking a declaration of her

matrimonial status with the living or a dead husband.

12. In the present case, the plaintiff is seeking a

declaration that she be declared as a legally wedded wife of

Late Mr. Vishamber Singh. After all, the plaintiff has sought a

declaration that the plaintiffs be declared as legal heirs of

Late Mr. Vishamber Singh. Plaintiff No.1 can be declared as a

legal heir of Late Mr. Vishamber Singh, if and only if, her

matrimonial status is determined and declared by the learned

Family Court.

13. Moreover, under clause (e), a suit can be filed for

declaration with regard to the legitimacy of any person. The

plaintiffs have filed the present suit for declaring the

legitimacy of plaintiff no.2. After all, the plaintiff No.2 can

claim to be a legal heir of Late Mr. Vishamber Singh only if

she is declared to be his legitimate daughter. Therefore, even

under clause (e) of Section 7(1) of the Family Courts Act

Explanation, the suit would be maintainable.

14. Moreover, clause (d) of Section 7(1) of the Family

Courts Act speaks about a suit for seeking an injunction in

circumstances arising out of matrimonial relationship. Since

the property in dispute belonged to the alleged late husband

of plaintiff No.1, since the plaintiffs are seeking an injunction

against the defendants-appellants, the Suit is equally

maintainable under clause (d) of Section 7(1) Explanation of

the Family Courts Act. After all, even clause (d) does not use

the words "parties to a marriage".

15. Moreover, Section 8 of the Family Courts Act clearly

provides that where a Family Court has been established for

any area, no district court, or any subordinate civil court

would have the jurisdiction in respect of any suit or

proceeding of the nature referred to in the Explanation of

Section 7(1) of the Family Courts Act. Therefore, the learned

Family Court was justified in concluding that a Suit is, indeed,

maintainable under Section 7(1) Explanation of the Family

Courts Act.

16. As far as the case of R. Kasturi & others (supra)

is concerned, the case is distinguishable on factual matrix

itself. In the said case, the Hon'ble Supreme Court has held

that there is no family dispute between the plaintiffs and the

defendants. The dispute between the parties is purely a civil

dispute and has no bearing on any dispute within a family

which needs to be resolved by a special procedure as

provided under the Family Courts Act. Since the case of R.

Kasturi & others (supra) is distinguishable on the basis of

its facts, the said case does not come to the rescue of the

defendants-appellants.

17. For the reasons stated above, this Court does not

find any merit in the present appeal. It is, hereby, dismissed.

(RAGHVENDRA SINGH CHAUHAN, C.J.)

(ALOK KUMAR VERMA, J.) Dated: 26th July, 2021 NISHANT