Saturday, 26 October 2019

Whether family court can try dispute raised by third party to Marriage?

 Having taken note of this aspect of the matter, the factual matrix in the present case would disclose that the respondent herein is not the person who claims a declaration about his own marriage. The very contention that is put forth in the proceedings before the Family Court is that the appellant herein, Smti Nitikona Banarjee, is not the legally wedded wife of his (plaintiff's) brother, Lakshman Banerjee. If that be the position, the parties to the proceedings are not parties to the marriage.

9. Be that as it may. The question that would arise is as to whether in such circumstance the case would fall under Section 7(b) of the Act. In that regard, though in Section 7(b) of the Act the expression "parties to a marriage" does not occur, keeping in view the nature of relief that is provided before the Family Court, it would be only between the parties to a marriage to seek for such declaration for their benefit against the person who claims or contends not to be a party to the marriage. If that aspect of the matter is kept in view, a third party questioning the marriage of any other party would not be entitled to maintain proceedings before the Family Court. In any event, if such a party has any grievance, the remedy is available before the ordinary civil court by filing a suit therein.

IN THE HIGH COURT OF GAUHATI

Mat. App. 29/2016

Decided On: 01.11.2018

Nitikona Banarjee Vs.  Ram Prasad Banerjee

Hon'ble Judges/Coram:
A.S. Bopanna, C.J. and Arup Kumar Goswami, J.

Citation: AIR 2019 (NOC) 452 Gau

1. Heard Mr. A. Biswas, learned counsel appearing for the appellant. Also heard Mr. S.N. Sarma, learned Senior counsel, appearing for the respondent.

2. The appellant is before this court in this appeal assailing the order dated 17.11.2014, passed by the court of the Principal Judge, Family Court-1, Kamrup (M), Guwahati, in F.C. (Civil) Case No. 628/2012. The respondent herein had approached the Family Court in F.C. (Civil) 628/2012 seeking a declaration that the appellant herein is not the legally married wife of Lakshman Banerjee and, therefore, she is not entitled to make any claim, as legal heir of Lakshman Banerjee, in respect of the properties left by him. Further, a declaration has been sought that the Marriage Certificate No. 252/94 is a void and fraudulently obtained document and, therefore, the same has no binding effect on the plaintiff and others. The consequential relief thereof was also sought in the said petition.

3. The appellant herein was the defendant to the said proceedings, who had appeared and contested the proceedings. In the said proceedings, an application was filed under Section 7 of the Family Court Act, 1984 (hereinafter referred to as "the Act") contending that the petition before the Family Court is not maintainable as the parties are not husband and wife and, in that light, the petition filed by a third person cannot be entertained by the Family Court.

4. The Family Court, through its order dated 17.11.2014, having considered the said application, was of the opinion that the petition, as filed, would fall under Section 7(b) of the Act and, therefore, held that the petition is maintainable. Accordingly, the prayer made in the application bearing Petition No. 829/2014 was rejected. It is in that light the instant appeal is filed by the appellant assailing the order passed by the learned Family Court.

5. The learned counsel for the appellant has taken us through the provision as contained in Section 7 of the Act as also the provision as contained in Order XXXIIA of the Civil Procedure Code. In that light, it is contended that the jurisdiction of the Family Court as provided under Section 7 of the Act is to be exercised only when such dispute arises between the parties to the marriage and, therefore, the proceedings before the Family Court was not maintainable. It is pointed out that even in respect of the very similar relief, as prayed before the learned Family Court, the appropriate course would have been to approach the civil court if the provision as contained in Order XXXIIA of the Civil Procedure Code is kept in view. The learned counsel has sought to rely on the decision of a Division of the Rajasthan High Court in the case of Dilip and Another v. Ravi and Another, reported in MANU/RH/0435/2014 : AIR 2014 Rajasthan 89.

6. The learned Senior counsel for the respondent, on the other hand, would seek to sustain the order dated 17.11.2014 passed by the learned Family Court. It is contended by the learned Senior counsel that a perusal of the provision as contained in Section 7 of the Act, providing jurisdiction of the Family Court, would indicate that under all other sub-sections, the emphasis is on the expression "parties to a marriage". In that light, it is pointed out that the said expression is conspicuously absent in sub-Section (b) of Section 7 and, therefore, the suit filed by the respondent, presently seeking for a declaration relating to validity of marriage, would be maintainable. Learned Senior counsel would also seek to rely on the decision of the Hon'ble Supreme Court in Balram Yadav vs. Fulamaniya Yada, reported in MANU/SC/0488/2016 : AIR 2016 SC 2161. Further, in order to persuade the court, the learned Senior counsel has also sought to rely on a decision of the learned Single Judge of this court in the case of Dwipen Saikia and Ors. vs. Jitumoni Saikia, reported in MANU/GH/0258/2015 : 2016 (2) GLR 828.

7. In the background of the contentions before us, we have perused the appeal papers, particularly, the order dated 17.11.2014. The entire scope of consideration in that regard is by keeping in view the provision as contained in Section 7(b) of the Act. In that regard, at the outset, it is necessary to make a distinction with regard to the decision as relied on by the learned Senior counsel for the respondent. From the decision of the Hon'ble Supreme Court, it is seen that a consideration was made in the nature where the party, who had instituted the suit, was by the very person who was seeking a declaration to the effect that the respondent is not his legally married wife. It is in that light a conclusion had been reached by the Hon'ble Supreme Court in that regard. Further, in the decision rendered by the learned Single Judge of this court also the position was similar inasmuch as the respondent/plaintiff was claiming to be the wife of Sachindra Nath Saikia and in that light was seeking for a share in the property in that regard.

8. Having taken note of this aspect of the matter, the factual matrix in the present case would disclose that the respondent herein is not the person who claims a declaration about his own marriage. The very contention that is put forth in the proceedings before the Family Court is that the appellant herein, Smti Nitikona Banarjee, is not the legally wedded wife of his (plaintiff's) brother, Lakshman Banerjee. If that be the position, the parties to the proceedings are not parties to the marriage.

9. Be that as it may. The question that would arise is as to whether in such circumstance the case would fall under Section 7(b) of the Act. In that regard, though in Section 7(b) of the Act the expression "parties to a marriage" does not occur, keeping in view the nature of relief that is provided before the Family Court, it would be only between the parties to a marriage to seek for such declaration for their benefit against the person who claims or contends not to be a party to the marriage. If that aspect of the matter is kept in view, a third party questioning the marriage of any other party would not be entitled to maintain proceedings before the Family Court. In any event, if such a party has any grievance, the remedy is available before the ordinary civil court by filing a suit therein.

10. In that view of the matter, the instant petition filed before the Family Court by the respondent herein would not be maintainable.

11. Having arrived at the above conclusion, the next aspect that would arise for consideration will be with regard to the appropriate directions to be issued herein.

12. It is, no doubt, true that the appellant herein had filed the application before the Family Court contending that the petition filed by the plaintiff (respondent herein) is not maintainable and, in that regard, had sought for rejection of the petition as not maintainable. In the present circumstance, since we have arrived at the conclusion in respect of the relief prayed for, the appropriate course would be to maintain the suit before the civil court and, since a provision in that regard is available under Order VII Rule 10 of the Civil Procedure Code to relegate the party to the appropriate jurisdiction, we find it appropriate to mould the relief.

13. In that view of the matter, the order dated 17.11.2014, passed by the learned Family Court is set aside. Consequently, a direction is issued to the Principal Judge, Family Court-1, Kamrup, Guwahati, to return the plaint to the plaintiff enabling the plaintiff to present the same before the appropriate civil court, having jurisdiction, within 30 (thirty) days from the date of return of the plaint.

14. In terms of the above, the instant appeal stands allowed in part.

15. No order as to cost.

16. Registry to return the Lower Court Records.


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