Wednesday, 24 May 2017

Whether family court can decide validity of marriage?

On   hearing   the   learned   counsel   for   the   parties   and   on   a
perusal of the Record & Proceedings, it appears that following points arise
for determination in this family court appeal:­

(I) Whether   the   family   court   has   jurisdiction   to   decide   the
petition filed by the appellant for the declaration that he is
not the husband of the respondent ?
(II) What order ?
For answering the points for determination, it would not be
necessary to consider the pleadings of the parties in detail.  Suffice it is to
state that the appellant has filed this petition for a declaration that the
respondent is not his wife.  In the said petition, the respondent has filed a
counter claim seeking a declaration that she is the legal wife of the
appellant.     The   appellant   and   the   respondent   have   pleaded   their
respective cases for seeking the aforesaid relief in the petition and the
counter   claim.     It   would,   therefore,   be   necessary   to   consider   the
provisions of Section 7 of the Act that confers the jurisdiction on the
family court.  The relevant provisions of Section 7 of the Act read thus:­
“Section 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 sub­section 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 or proceeding for an order or injunction in circumstances
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) ................
(a) ................
(b) ................”
It   is   apparent   from   the   provisions   of   Section   7   of   the
Act   that   the   family   court   shall   have   the   jurisdiction   in   a   suit
or proceedings between the parties to a marriage for a decree of nullity
of   marriage   or   restitution   of   conjugal   rights   or   judicial   separation
or   dissolution   of   marriage.     So   also,   in   view   of   Clause   (b)   of   the

explanation, the family court would have jurisdiction to decide a suit or
proceedings for a declaration as to the validity of the marriage or as to
the matrimonial status of any person.  It is apparent from a reading of
Clause   (b)   to   the   Explanation   that   the   family   court   would   have
jurisdiction   to   entertain   and   decide   a   suit   or   proceedings   for   a
declaration as to the matrimonial status of any person.   In the instant
case, the appellant has sought a declaration that the respondent is not his
wife and the respondent has sought a declaration in her counter claim
that she is the legal wife of the appellant.   Since the parties to the
proceedings   had   sought   a   declaration   in   regard   to   their   matrimonial
status,   the   family   court   had   jurisdiction   to   entertain   and   decide   the
petition filed by the appellant in view of Explanation (b) to Section 7(1)
of the Act.   Unfortunately, the family court did not advert its mind to
Explanation (b) of Section 7(1) and dismissed the petition on the ground
of   absence   of   jurisdiction   by  referring   to   Explanation  (a)   and   (c)   of
Section 7(1) of the Act.   We find that the family court committed a
jurisdictional error in dismissing the petition filed by the appellant for a
declaration   that   the   respondent   is   not   his   wife   and   the   respondent’s
counter claim that the respondent is the legal wife of the appellant solely
on   the   ground   that   since   the   parties   had   not   pleaded   about   the
performance of their marriage, it has no jurisdiction to entertain and
decide the same.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL No. 214/2014
Shri Mukund S/o Sudam Borkar,
V
Smt.Pradnyasheela W/o Ramesh Ghate,

CORAM :SMT.VASANTI  A  NAIK AND
        V.M. DESHPANDE, JJ.        
    DATE       :  12TH JANUARY,     2017.
Citation: 2017(3) ALLMR 227
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Sunday, 21 May 2017

How to determine court fees in suit for mandatory injunction for return of cheque?


The suit as framed is one for mandatory injunction,

directing the defendant to return the cheques allegedly

issued by the plaintiff as security. The suit is not one for a

declaration that the plaintiff has already paid the amount due

to the defendant covered by the cheques in question.

Therefore the finding of the court below that the valuation of

the plaint under Section 27(c) of the Kerala Court Fees and

Suits Valuation Act, 1959 is proper cannot be faulted with.

     2. The plaintiff has a contention that he has already

paid Rs.1,05,000/- due to the defendant and that the sum of

Rs.2,40,000/- shown in both the cheques together is not the

correct amount.    These are all incidental questions to be

considered by the court below in the matter of granting the

relief of mandatory injunction sought for. But the plaintiff


has not sought for any declaration to that effect and

therefore there is no necessity to pay the court fee under

Section 25 of the Kerala Court Fees and Suits Valuation

Act, 1959.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT:

          MR.JUSTICE V.CHITAMBARESH

    11TH DAY OF JUNE 2012

                   CRP.No. 65 of 2012 

        SIJU PAUL Vs T.V.SUBASH,
        
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Whether accused convicted U/S 394 of IPC can be released on probation of offender Act?

 Thus, merely because the maximum sentence of life could have
been awarded under Section 394 of the Indian Penal Code, it would be no
ground for not granting the benefit of Probation of Offenders Act to the
respondent. The Court has a discretion in matters of sentencing and the
sentencing process would hinge on the nature and circumstances of the
case.
16. In State of Himachal Pradesh vs. Dharam Pal: (2004) 9 SCC 681,
the accused was convicted under Section 376 read with Section 511 of the
IPC and was sentenced to undergo RI for three years and was directed to
pay a fine. In appeal, the High Court upheld the conviction but
considering the relationship and the age of the accused, applied Section 4
of the Probation of Offenders Act and directed for his release on
probation of good conduct. The Supreme Court in the aforesaid case,
though took into account that the offence charged was one under Section
376 but held that the Probation of Offenders Act is intended to reform the
person who can be reformed and would cease to be a nuisance in the
society. The Supreme Court was of the view that the discretion to
exercise the jurisdiction under the Act is hedged with a condition about
the nature of offence and the character of the offender. The order of the
High Court was, therefore, affirmed and upheld by the Supreme Court.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

Delivered on: 17.05.2017
 CRL.A.539/2016
STATE 
v
LUCKY 
CORAM:-
HON’BLE MR JUSTICE ASHUTOSH KUMAR

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What is distinction between partition of property and separation of shares?

A partition of a property can be only among those having
a share or interest in it. A person who does not have a share in
such property cannot obviously be a party to a partition.
`Separation of share' is a species of 'partition'. When all coowners
get separated, it is a partition. Separation of share/s
refers to a division where only one or only a few among several
co-owners/coparceners get separated, and others continue to be
joint or continue to hold the remaining property jointly without
division by metes and bounds. For example, where four brothers
owning a property divide it among themselves by metes and
bounds, it is a partition. But if only one brother wants to get his
share separated and other three brothers continue to remain joint,
there is only a separation of the share of one brother.”
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon’ble Justice Subrata Talukdar
FMA 273 of 1985
Bina Ghosh vs  Mohanlal Ghosh 
Judgment on : 15/07/2016
Citation: AIR 2017(NOC) 219 Cal
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