Sunday, 21 March 2021

Whether the daughter can challenge the validity of his father's marriage before the family court?


 
: LOCUS STANDI :

29 The first plea raised by the learned counsel for the

respondent is that the appellant has no locus whatsoever to

challenge the validity of the respondent’s marriage to her father.

The learned counsel derives inspiration from the interpretation of

Section 7 of the Act and painstakingly dwelt upon nuances of

Section to bring home the point only to emphasize that besides

the parties to the marriage, no third party can seek a declaration

with regard to the validity of the marriage and more so when the

appellant’s father is no more.

37 In this case, the appellant is seeking declaration as to

the validity of the marriage of her late father with the respondent

and as also, according to her, the status of the respondent as on

today still continued to be the wife of Mr.Mansoor Cherwalla as

per provisions of Section 7 (1) Explanation (b) of the Act. Having

regard to the Objects and Reasons of the Act vis-a-vis literal

construction of Clause (b) under Explanation, in our considered

view, the appellant has every locus to bring in question the validity of marriage of her father with the respondent and as also

respondent’s status.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.179 OF 2019

WITH

CROSS OBJECTION (STAMP) NO.30564 OF 2019

IN

FAMILY COURT APPEAL NO.179 OF 2019

MRS. NAYANA M. RAMANI  V/s. MRS.FIZZAH NAVNITLAL SHAH

CORAM : R. D. DHANUKA &

V. G. BISHT, JJ.

JUDGMENT : (PER : V. G. BISHT, J.)

PRONOUNCED ON : 17th MARCH 2021



JUDGMENT : (PER : V. G. BISHT, J.)

1 This appeal arises from the common order dated 15th

July 2019 on Exh. 1 and Exh. 11 passed by the Judge, Family

Court No.2, Mumbai, whereby the learned Judge dismissed Family

Court Petition No.B-62 of 2016 under Order 2 Rule 2 of the Code

of Civil Procedure, 1908 (hereinafter referred to as “the Code”).

1A The respondent also assails above said order by way of

cross-objection in as much as grounds for rejection of said Family

Court Petition viz. locus, limitation and non-joinder of necessary

party were rejected by the learned Judge of the Family Court.

2 Facts which lie in narrow compass required for

disposal of this appeal can be stated as follows :

(a) The appellant herein is a married daughter of late

Mr.Navnitlal R. Shah (for short the appellant’s father) with

whom the respondent alleges to have got married on 24th

July 2003 after the demise of appellant’s mother viz.

Hiralaxmi Shah in February 2003. The marriage between the

appellant/petitioner’s father and the respondent was

solemnized before the Marriage Officer, Mumbai.

(b) The appellant’s father expired on 30th June 2015 leaving

behind three married daughters and one married son. The

appellant’s father was a Jain by religion and the respondent

was a Muslim belonging to Dawoodi Bohra Section of the

said religion, at the time of the alleged marriage.

(c) According to the appellant, her father was an extremely

successful businessman who built the business of “Ashapura

Group” comprising of several Companies. He owned various

assets and properties and was till some years ago a Director

in many of the Companies in the Ashapura Group. The

appellant alleges that the respondent was already married to

Mr.Mansoor Hatimbhai Chherwala but was not divorced,

which fact she deliberately concealed and suppressed from

the appellant’s father. She falsely portrayed herself as a

divorcee but was not a divorcee at all. This fact came to be

unearthed and came to the knowledge of the

appellant/petitioner recently when she happened to come

across copies of the alleged divorce documents while going

through the personal files of her father and after verifying

the authenticity of those doubtful documents. There is no

issue to the appellant’s father and the respondent out of the

alleged wedlock.

(d) Alleging further, the appellant contends that the respondent

took undue advantage of the mental ailments, infirmities

and unsoundness of mind of her father, which she was very

well aware of, got married to him and then exercised and

applied undue influence, coercion and duress upon him with

the intention and motive of siphoning his entire properties.

She even got executed various documents including his Will

and several Gift Deeds of various valuable immovable

properties and deprived the true legal heirs of their rights.

The respondent also compelled her father to transfer a huge

quantity of shares of Ashapura Group of Industries to her

name and also forcibly took away custody of the jewellery

“Stridhan” of her mother after her death.

3 In the above factual backdrop, the appellant filed the

said Family Court petition seeking declaration that the marriage

allegedly solemnized between her father and the respondent on

24th July 2003 is null and void and also the status of the

respondent as on today continued to be the wife of the said

Mr.Mansoor Hatimbhai Chherwala under the provisions of Section

7 (1) Explanation (b)and (d) of the Family Courts Act (“the Act”

for short).

4 The respondent resisted the petition by filing her

written statement. At the very outset, the respondent raised

objection as to the jurisdiction of the Family Court by contending

that the Court does not have the jurisdiction to try and entertain

the petition and therefore deserves to be dismissed in-limine.


5 According to her, she divorced her husband viz.

Mr.Mansoor Hatimbhai Chherwala on 23rd August 1984 vide a

duly executed Talaqnama in Urdu and thereafter on 21st February

2003 after the demise of the wife of the appellant’s father, got

married to him. The Registrar of Marriage, Mumbai, registered

the marriage after satisfying himself of the facts, scrutiny of all

documents submitted and after complying with procedure as

required.

6 The respondent, on her part, also alleges that the

appellant and her siblings with sole intention filed various

litigation in various courts so as to make the respondent and her

late husband succumb under their pressure so that they could

usurp all of their father’s property.

7 The respondent further contends that the petition is

barred by Law of Limitation in as much as the appellant had

knowledge of her father’s marriage and any petition or action

challenging the validity of the said marriage, therefore, ought to

have been filed within three years of the said marriage.

8 Similarly, the appellant has no locus, whatsoever, to

challenge the validity of the respondent’s marriage. Only parties to

a marriage can challenge the validity of the marriage. In other

words, besides parties to the marriage, no third party can seek

such a declaration with regard to the validity of the marriage and

more so when one of the spouses is no more.

9 The respondent further contends that the petition

suffers from defect of non-rejoinder of a necessary party viz.

Mr.Mansoor Hatimbhai Chherwala. The only ground on which the

appellant claims the respondent’s marriage with her father to be

invalid is that the divorce between her and her ex-husband

Mr.Mansoor Hatimbhai Chherwala was invalid. This question

cannot be decided behind the back of Mr.Mansoor Hatimbhai

Chherwala and he is therefore a necessary party to the present

proceedings. The present petition is, therefore, bad in law for

non-joinder of a necessary party.

10 On going through the record it is seen that during

pendency of the proceedings, the respondent moved an

application dated 10th September 2018 (Exh. 11) raising

preliminary objections viz. maintainability of the petition, locus

standii, non-joinder of necessary party and that it being barred by

Law of Limitation, the grounds which were raised in her written

statement and have been quoted in extenso by us.

11 The above application was duly replied and resisted by

the appellant by filing her reply. The appellant denied all the

preliminary objections and reiterated almost the same facts which

are raised in the main petition in defence of those objections.

12 It is in the above factual backdrop the learned Judge

after hearing both the parties passed the order below Exh. 1 and

Exh. 11. The learned Judge after elaborately discussing the

various proceedings between the parties came to the conclusion

that the appellant could have raised the issue before this Court in

original petition and the High Court could have entertained the

same. The learned Judge further held that the appellant thus had

deemingly relinquished, given up her portion of the claim

pertaining to the declaration of the marital status of the

respondent and thus the bar under Order 2 Rule 2 of the Code

shall be applicable.

13 The learned Judge, however, rejected the objections of

the respondent as to the locus, limitation and non-joinder of

necessary party raised by the respondent.

14 The present appeal is thus against the impugned order

dated 15th July 2019 rejecting the claim of the appellant on the

ground of bar of Order 2 Rule 2 of the Code. So also, Cross

Objection against the rejection of grounds raised by the

respondent. That is how both the parties are before us.

15 Mr.Naik, learned senior counsel for the appellant/

petitioner, scathing a mounting attack on the approach of the

learned Family Court strenuously submitted that the learned Family

Court erred by proceeding on the incorrect and illogical basis that as

the appellant did not seek the relief of a declaration in respect of the

validity of the marriage of the respondent in previous proceeding

filed by her before the High Court, she had deemingly relinquished

and given up the portion of her claim that is the subject matter of

the petition before the Family Court. According to the learned senior

counsel, the appellant had filed the petition before the Family Court

seeking a declaration that the purported marriage allegedly

solemnized between the appellant’s father, the late Mr.Navnitlal R.

Shah (the deceased) and the respondent is null and void and also

that the status of the respondent as on the date of filing of the

petition continued to be the wife of the one Mr.Mansoor H.

Chherawalla as per the provisions of Section 7(1) of the Act.

16 Stretching further, the learned senior counsel contended

that it is settled law that for invoking Order II Rule 2 of the

Code, the relief which the appellant has claimed in the second

proceeding/suit must have been available to the appellant for

being claimed in the previous suit on the cause of action pleaded

in the previous suit against the respondent and yet not claimed by

her. The concept of Order II Rule 2 is alien to the Family Court

proceedings. It is also a settled law that under Section 7 of the

Act, a suit or a proceeding for a declaration as to the validity of

both marriage and matrimonial status of a person is within the

exclusive jurisdiction of the Family Court, since under Section 8 all

those jurisdictions covered under Section 7 are excluded from the

purview of the jurisdiction of the Civil Court. The cause of action

arose only after the earlier suits had been filed and it is only the

Family Court that could have granted the relief sought for by the

appellant in her petition. The said relief was not available to the

appellant in any other proceeding or before any other forum.

Therefore, there was no question of relinquishing or giving up the

claim (that forms the subject matter of the petition before the

Family Court)in other proceedings before the Civil Court.

17 The learned senior counsel next contended that the

learned Family Court erred in holding that the appellant could

have raised the issue regarding the validity of the marriage of the

respondent before the Civil Court and that the Civil Court could

have entertained the same. The impugned order is contrary to the

law laid down by the Hon'ble Apex Court which holds that a

petition regarding a dispute on the matrimonial status of a person

which seeks a declaration in that regard has to be sought only

before the Family Court.

18 The learned senior counsel then lastly contended that

the learned Family Court thus committed a grave error of

jurisdiction by dismissing the petition under Order II Rule 2 of the

Code.

19 Advancing the next limb of argument, the learned

senior counsel submitted that the appellant being daughter of the

deceased Mr.Navnitlal R. Shah has every locus standi in as much

as it is well settled law that not only spouses are entitled to file

petition challenging the validity of the marriage but the interested

persons and beneficiaries related to the spouses may also

challenge it if they bring ample evidence of its illegality. In this

regard, the learned senior counsel heavily pressed into service

Explanation (b) to Section 7 of the Act.

20 The learned senior counsel next submitted that as far

as objection regarding non-joinder of necessary party viz.

Mr.Mansoor Hatimbhai Chherwala is concerned, according to the

appellant/petitioner, there was no necessity to join him in the

present proceedings as any presumed testimony from his end with

regard to the validity of the divorce would have made no

difference to her case particularly since the compliance of Fatimid

law with regard to divorce had not been carried out by the parties.

21 The learned senior counsel lastly, while replying to the

point of limitation, submitted that the very petition was filed well

within the time as the same was filed immediately after the

discovery of the relevant facts along with the documents. Even

otherwise, it being a mixed question of law and facts, the Family

Court rightly rejected the said issue raised by the respondent for

the reasons recorded in the impugned order.

22 Summing up the submissions, the learned senior

counsel urged that for all the aforesaid reasons, the impugned

order in so far as it is impugned by his client deserves to be set

aside.

23 To buttress his submissions, the learned senior counsel

placed reliance on the order of this Court in case of Nayana

Ramani (Applicant) In the matter between Aruna Shah vs. Fizza

Shah & Anr.1, Aruna Shah vs. Fizza Shah & Anr.2, Judgment of

Kerala High Court in case of Syamaladevi vs. Sarla Devi and

Others3, Judgment of Supreme Court in case of Balram Yadav vs.

Fulmaniyua Yadav4 and in case of Sucha Singh Sodhi (Dead)

through LR vs. Baldev Raj Walia & Anr.5 and Judgment of this

Court in case of Romila Jaidev Shroff vs. Jaidev Rajnikant Shroff6.

24 Per contra, Ms.Panda, learned counsel for the

respondent, on the other hand, would seek to sustain the order

1 Order dated 17.4.2017 in Chamber Summons No.1755 of 2016

2 Order dated 27.9.2017 in Appeal (L) No.202 of 2017

3 2009 SCC Online Ker 508

4 (2016) 13 SCC 308

5 (2018) 6 SCC 733

6 2000 (3) Mh.L.J. 468

dated 15th July 2019 passed by the learned Family Court. At the

very outset, we make it clear that the learned counsel has mainly

argued on the point of locus, limitation and non-joinder of

necessary party, as all these objections were negatived by the

learned Family Court.

25 Starting with the application of Section 7of the Act,

the learned counsel vehemently submitted that the appellant/

petitioner does not have locus standi to file and maintain the

petition under Section 7 of the Act. According to the learned

counsel, in the light of mandate of Section 7 of the Act, the

marriage can be challenged only by the parties to the marriage

and no third party can seek any declaration regarding the validity

of the marriage as is sought by the appellant in the Family Court

petition, particularly after the demise of her father. The learned

Family Court patently erred in rejecting this ground and therefore

on this ground alone the petition ought to have been dismissed.

26 The learned counsel then next submitted that the

learned Family Court ought to have held that the petition suffers

from non-joinder of necessary party i.e. Mr.Mansoor Hatimbhai

Chherwala – the ex-husband of the respondent in whose absence

no declaration could have been passed regarding the alleged

existence of the marriage between Mr.Mansoor Hatimbhai

Chherwala and the respondent on the date of alleged marriage of

the respondent with the father of the appellant and the

consequent alleged invalidity of the marriage between the

appellant’s father and the respondent.

27 Lastly, the learned counsel would submit that the

learned Family Court failed to appreciate that the appellant had

knowledge of the marriage between the respondent and her father

since 2003 and any petition challenging their marriage, therefore,

ought to have been filed within three years of the date of the

marriage. The learned Family Court was therefore wrong in

rejecting the objection raised on the point of limitation admittedly

when the petition had not been filed within three years.

28 The learned counsel also placed reliance on the

judgment delivered by various Courts in cases of Smiti Nitikona


Banerjee vs. Ram Prasad Banerjee7, Vasumathi vs. Chandriyani

Madhavi8, K.A.Abdul Jaleel vs. T.A. Sahida9 and Sri P. Srihari vs.

Kum. P. Sukunda and Another10.

: LOCUS STANDI :

29 The first plea raised by the learned counsel for the

respondent is that the appellant has no locus whatsoever to

challenge the validity of the respondent’s marriage to her father.

The learned counsel derives inspiration from the interpretation of

Section 7 of the Act and painstakingly dwelt upon nuances of

Section to bring home the point only to emphasize that besides

the parties to the marriage, no third party can seek a declaration

with regard to the validity of the marriage and more so when the

appellant’s father is no more.

30 It will be useful to refer the statutory provision

contained in Section 7 to the extent it is relevant for the purpose,

7 2018 SCC Online Gau 1577

8 1990 SCC Online Kar 66

9 1997 SCC Online Ker 83

10 2001 (1) A.P.L.J. (HC)

as follows :

“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 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 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.”

31 It does not take much discernment to see that the

Family Court has jurisdiction exercisable by any District Court or

by a subordinate Civil Court under any law for the time being in

force in respect of suits and other proceedings of the nature

referred to in Explanation (a) to (g). Clause (a) under the

Explanation refers to nature of proceedings between the parties to

a marriage for a decree of nullity of marriage, as the case may be,

annulling the marriage or restitution of conjugal rights etc.

Essentially, this is a proceeding between the spouses.

32 Clause (b) under the Explanation is in the nature of a

declaration as to the validity of a marriage or as to the

matrimonial status of any person. What should engage our

attention here is unlike Clause (a) it does not say that such suit or

proceeding should be between the parties to the marriage. To

note that Clause (b) is widely couched to encompass in its ambit

and include the proceeding of the nature referred to regarding

declaration of the validity of the marriage or it could be for a

declaration of the matrimonial status of any person, would be a

but fair comment.

33 Here we are also mindful of Statement of Objects and

Reasons of the Act. In the Objects and Reasons it is stated that :

“STATEMENT OF OBJECTS AND REASONS

Several association of women, other organisations

and individuals have urged, from time to time, that

family Courts be set up for the settlement of family

disputes, where emphasis should be laid on

conciliation and achieving socially desirable results

and adherence to rigid rules of procedure and

evidence should be eliminated. The Law

Commission in its 59th report (1974) had also

stressed that in dealing with disputes concerning the

family the Court ought to adopt an approach

radically different from that adopted in ordinary

civil proceedings and that it should make reasonable

efforts at settlement before the commencement of

the trial. The Code of Civil Procedure was amended

in 1976 to provide for a special procedure to be

adopted in suits or proceedings relating to matters

concerning the family. However, not much use has

been made by the courts in adopting this

conciliatory procedure and the courts continue to

deal with family disputes in the same manner as

other civil matters and the same adversary approach

prevails. The need was, therefore felt, in the public

interest, to establish Family Courts for speedy

settlement of family disputes.”

34 It is further stated that Family Court is intended to

provide an exclusive jurisdiction of the matters relating to

matrimonial relief including nullity of marriage, judicial

separation, divorce, restitution of conjugal rights or declaration as

to the validity of marriage or as to the matrimonial status of any

person, the property of the spouses or of either of them,

declaration as to the legitimacy of any person, guardianship of a

person or the custody of any minor, maintenance, including

proceedings under Chapter IX of the Code of Criminal Procedure.

35 Relying on the Objects and Reasons, the learned senior

counsel for the appellant earnestly submits that Clause (b) under

the Explanation must be construed having due regard to the

Objects and Reasons to the Act. Not only the spouses are entitled

to file the petition challenging the validity of the marriage but the

interested persons and beneficiaries related to the spouses may

also challenge it, supplemented the learned senior counsel.

36 The learned senior counsel has also drawn strength

from the decision given in Syamaladevi Devi (supra) wherein the

Kerala High Court while drawing a distinction between Clause (a)

and (b) under Explanation, pointed out that unlike Clause (a),

Clause (b) does not say that such proceedings should be between

the parties to the marriage. In other words, Clause (b) is widely

couched to include the proceedings of the nature referred to

regarding declaration of validity of the marriage or it could be for

a declaration of the matrimonial status of any person. We have

also offered same interpretation as to Clause (b) under the

Explanation and respectfully agree with the view taken in the case

of Syamaladevi Devi (supra).

37 In this case, the appellant is seeking declaration as to

the validity of the marriage of her late father with the respondent

and as also, according to her, the status of the respondent as on

today still continued to be the wife of Mr.Mansoor Cherwalla as

per provisions of Section 7 (1) Explanation (b) of the Act. Having

regard to the Objects and Reasons of the Act vis-a-vis literal

construction of Clause (b) under Explanation, in our considered

view, the appellant has every locus to bring in question the validity

of marriage of her father with the respondent and as also

respondent’s status.

38 The ratio laid down in the case of Vasumathi (supra),

K.A.Abdul Jaleel (supra) and Sri. P. Srihari (supra) cannot be

made applicable to the case in hand.

39 In Vasumathi (supra) the petitioner had sought

Succession Certificate under Section 372 of the Indian Succession

Act, 1925, from City Civil Court who transferred the proceedings

to the Family Court. The petitioner challenged this order before

the High Court. The learned Single Judge held that in the absence

of such a power having been conferred on the Family Court, the

Civil Court was not right in transferring the proceedings to the

Family Court.

40 In K.A.Abdul Jaleel (supra) the Division Bench of

Kerala High Court held that the disputes between the appellant

and respondent are to be decided by the Family Court and it has

got jurisdiction under Section 7(1)(c) of the Family Courts Act,

even though the appellant and the respondent are no longer

parties to a subsisting marriage.

41 Lastly, in Sri. P. Srihari (supra) the suit was filed by the

sisters against the brothers and others claiming partition of the

property left behind by their father. The Division Bench held that

by no stretch of imagination can the Family Court assume

jurisdiction, if there is a dispute between the brothers, sisters,

mothers, fathers etc. concerning property and the case on hand

being one such, the Family Court had clearly no jurisdiction.

Completely different situation then in the case in hand.

42 To say that, as is submitted by the learned counsel for

the respondent, the appellant has no locus, whatsoever, to

challenge the validity of respondent’s marriage with the

appellant’s father under Section 7 of the Act is nothing but a

straitened interpretation of the provision of Section 7 of the Act.

This is wholly incompatible with the spirit of Section 7 as well as

Objects and Reasons of the Act.

43 The inescapable conclusion is that the appellant’s case

will squarely fall under Section 7(b) of the Act. The plea of

respondent, therefore fails.

: NON-JOINDER OF NECESSARY PARTY :

44 Order 1 Rule 9 of the Code deals with mis-joinder and

non-joinder of parties. It reads as under :

“9. Mis-joinder and non-joinder. -

No suit shall be defeated by reason of the misjoinder

or nonjoinder of parties, and the Court may in every

suit deal with the matter in controversy so far as

regards the rights and interests of the parties

actually before it :

Provided that nothing in this rule shall apply to

nonjoinder of a necessary party.

A plain reading of Rule 9 makes it clear that mis-joinder or nonjoinder

of parties is not fatal unless it is non-joinder of necessary

party. Where either a necessary or proper party is not impleaded

in the array of parties, it is said to be non-joinder of party. A

necessary party is one without impleading whom no effective

decree can be passed. That is why a proviso is added in Rule 9

that nothing in the Rule shall apply to non-joinder of necessary

party.


45 The question to be considered is whether right of the

party shall be affected if he is not added as a party. In the instant

case, the appellant has come with a specific case that her father

was a widower at the time of alleged marriage with the

respondent. The respondent who portrayed herself as a divorcee

was not a divorcee at all and this fact was unearthed when the

appellant happened to come across copies of divorce documents

while going through the personal file of her father. It is her

further case that during verification of those divorce documents,

she came to know that the so called divorce document was

nothing but a forged document showing her to be divorcee of

Mr.Mansoor Hatimbhai Chherwala. Thus, according to her, the

marriage of respondent with her father was null and void for nonfulfillment

of conditions of Section 4(a) of the Special Marriage

Act. Needless to say, it is on this ground the appellant seeks

declaration that the marriage allegedly solemnized between her

father and respondent on 24th July 2003 is null and void and also

the status of respondent as on today continued to be the wife of

said Mr.Mansoor Hatimbhai Chherwala.

46 Since the appellant had branded the documents of

divorce allegedly arrived at between the respondent and her

erstwhile husband Mr.Mansoor Hatimbhai Chherwala as forged

and fabricated, necessarily the burden is on her to prove so by

adducing necessary evidence to that effect. Moreover, no specific

relief is claimed against Mr.Mansoor Hatimbhai Chherwala. At the

most, the appellant may opt to examine Mr.Mansoor Hatimbhai

Chherwala during the course of trial, if so advised, to prove that

he did not pronounce talaq to the respondent and the documents

submitted and relied on by the respondent at the time of her

marriage with the father of the appellant were invalid, improper

and fake. The respondent also may opt to examine Mr.Mansoor

Hatimbhai Chherwala to prove her case. In our view, it was thus

not necessary for the appellant to have impleaded Mr.Mansoor

Hatimbhai Chherwala in the present proceedings.

47 The learned senior counsel for the appellant during

the course of arguments also impressed upon us that there is no

necessity to joint Mr.Mansoor Hatimbhai Chherwala in the present

proceeding as any presumed testimony at his end with regard to

the validity of the divorce would have made no difference to

appellant’s case, particularly since the compliance of Fatimid law

with regard to valid divorce has not been carried out by the

parties. It appears to us that since the appellant has also raised a

grievance about the non-compliance of Fatimid Law governing the

valid divorce between the respondent and Mr.Mansoor Hatimbhai

Chherwala, this will necessarily require the evidence from both

the sides and on this count also, in our considered opinion, the

learned senior counsel is justified in his submission. Thus, for all

the aforesaid reasons, we do not find any merit in the second plea

as well. The second plea also, therefore, fails.

: LIMITATION :

48 In the present case the issue of limitation is raised by

the respondent. According to her, the appellant had knowledge

about the marriage between the respondent and her father since

2003 and, therefore, the petition ought to have been filed within

three years of the date of the marriage, which admittedly, was not

filed. This being so, the learned Family Court ought to have

rejected the petition on the point of limitation itself.

49 It is fairly settled that so far as issue of limitation is

concerned, it is a mixed question of fact and law. Looking at the

averments made in the petition we find that the alleged

fraudulent conduct of the respondent only came to be unearthed

after receipt of documents from the office of Marriage Officer,

Mumbai, on 10th and 12th February 2016 and thus the petition was

filed well within time. In our considered opinion, such an issue,

in the light of averments made in the petition, is required to be

determined having regard to the facts and the law.

50 Since, prima facie, it appears from the petition that

the alleged fraudulent conduct of the respondent was noticed by

the appellant on 10th and 12th February 2016 and the fact that the

petition immediately was filed after the discovery of the relevant

facts along with documents, it cannot be said that the petition was

barred by law of limitation. Even otherwise, in the light of

pleadings of both the parties, this will have to be determined by

the learned Family Court while deciding the petition finally. We,

therefore, do not find any merit in the submission. Therefore, the

third plea also fails.

51 In view of above, we hold that all the objections viz.

locus, non-joinder of necessary party and limitation raised by

respondent are rightly rejected by the learned Family Court.

: ORDER 2 RULE 2 OF THE CODE :

52 Order 2 Rule 2 of the Code reads as under :

“2. Suit to include the whole claim:

(1)Every suit shall include the whole of the claim

which the plaintiff is entitled to make in respect of

the cause of action; but a plaintiff may relinquish

any portion of his claim in order to bring the suit

within the jurisdiction of any Court.

(2) Relinquishment of part of claim: - Where a

plaintiff omits to sue in respect of, or intentionally

relinquishes, any portion of his claim, he shall not

afterwards sue in respect of the portion so omitted

or relinquished.

(3) Omission to sue for one of several reliefs: - A

person entitled to more than one relief in respect of

the same cause of action may sue for all or any of

such reliefs; but if he omits, except with the leave of

the Court, to sue for all such reliefs, he shall not

afterwards sue for any relief so omitted.

Explanation - For the purposes of this rule an

obligation and a collateral security for its

performance and successive claims arising under the

same obligation shall be deemed respectively to

constitute but one cause of action.

53 It is clear from the reading of Order 2 Rule 2 of the

Code that the object is to prevent multiplicity of suits. The Rule is

based on the principle that no one should be vexed twice for same

cause of action. The test for raising objection under the Rule is

that whether the claim made in the subsequent suit could have

been made in the earlier suit or not. The cause of action must be

same for application of the Rule.

54 In Sucha Singh Sodhi (supra) the Hon'ble Apex Court

at paragraph 26 held as under :

“26. In our opinion, the sine qua non for invoking

Order 2 Rule 2(2) against the plaintiff by the

defendant is that the relief which the plaintiff has

claimed in the second suit was also available to the

plaintiff for being claimed in the previous suit on the

causes of action pleaded in the previous suit against

the defendant and yet not claimed by the plaintiff.”

55 Therefore, we have to examine the question as to

whether the appellant was entitled to claim relief of declaration in

the previous suit(s) on the basis of cause of action pleaded by her

in the previous suits against the respondent in relation to the

validity of the marriage of her father with the respondent.

56 Perusal of the impugned order would show that

learned Family Court found that the appellant has filed three

original suits before this Court but it was not shown whether the

appellant had raised the issue of validity of talaq between the

respondent and her ex-husband Mr.Mansoor Chherwala in those

cases. The learned Family Court further noted that the appellant

raised very contention in her Notice of Motion No.1622 of 2006 in

Original Suit No.1018 of 2015 before this Court but did not find it

fit to include the prayer of declaration of validity or invalidity of

marriage between her father Navnitlal Shah and the respondent.

We also note that the learned Family Court was not clear whether

or not the appellant had pleaded these aspects in the Original Suit

No.1018 of 2015. This simply suggests that the learned Family

Court had failed to examine the pleadings in Original Suit

No.1018 of 2015.

57 It appears to us that the learned Family Court lost sight

of the fact that Original Suit No.1018 of 2015 was instituted in the

year 2015 whereas the Notice of Motion No.1622 came to be filed

in the year 2016 after the appellant discovered the fraud alleged

to have been played by the respondent pursuant to documents

dated 10th and 12th February 2016 secured by her through Right

to Information Application. Thus, there was disclosure and

discovery of new facts constituting new cause of action. We have

also pointed out the sine-qua-non for attracting mischief

contemplated under Order 2 Rule 2 is the same cause of action.

The learned Family Court, therefore, erred in holding that

provisions of Order 2 Rule 2 are attracted without examining the

cause of action in the earlier plaints filed by the appellant.

58 Let us examine it from another angle. We assume and

proceed on the premise that the learned Family Court did labour

to find out that cause of action before it was very much a part of

cause of action in the suits before this Court. What next the

learned Family Court ought to have taken into consideration was

whether in the light of Sections 7, 8 and 20 of the Act, this Court

has jurisdiction to grant declaration as to the validity of the

marriage between the appellant’s father and the respondent

sought by the appellant. In order to get an effective answer to this

question, we undertake a quick survey and implications of those

said Sections.

59 As far as Section 7 of the Act is concerned, we have

elaborately explained in the earlier part of our discussion and

therefore we reiterate the same.

60 Section 8 of the Act deals with the exclusion of

jurisdiction which reads as follows :

“8. Exclusion of jurisdiction and pending

proceedings.- Where a Family Court has been

established for any area,- .-Where a Family Court has

been established for any area,-

(a) no district court or any subordinate civil court

referred to in sub-section (1) of section 7 shall, in

relation to such area, have or exercise any

jurisdiction in respect of any suit or proceeding of

the nature referred to in the Explanation to that subsection;

(b) no magistrate shall, in relation to such area,

have or exercise any jurisdiction or power under

Chapter IX of the Code of Criminal Procedure, 1973

(2 of 1974);

(c) every suit or proceeding of the nature referred to

in the Explanation to sub-section (1) of section 7

and every proceeding under Chapter IX of the Code

of Criminal Procedure, 1973 (2 of 1974),-

(i) which is pending immediately before the

establishment of such Family Court before any

district court or subordinate court referred to in that

sub-section or, as the case may be, before any

magistrate under the said Code; and

(ii) which would have been required to be instituted

or taken before or by such Family Court if, before

the date on which such suit or proceeding was

instituted or taken, this Act had come into force and

such Family Court had been established, shall stand

transferred to such Family Court on the date on

which it is established.”

61 Section 20 of the Act provides for over riding effect of

the Act on other laws or any instrument having the effect of law

which reads as under :

“20. Act to have overriding effect.- The provisions of

this Act shall have effect notwithstanding anything

inconsistent therewith contained in any other law

for the time being in force or in any instrument

having effect by virtue of any law other than this

Act. -The provisions of this Act shall have effect

notwithstanding anything inconsistent therewith

contained in any other law for the time being in

force or in any instrument having effect by virtue of

any law other than this Act."

62 The Full Bench of this Court in Romila Jaidev Shroff

(supra) after analyzing Section 7(1), 8 and 20 of the Act, Section

2 (4) of the Code and Clause (12) of Letters Patent (Bombay) held

as under :

“On the basis of Section 7 of the Family Courts Act,

1984 so far as the suit for maintenance is concerned,

it is covered by the provisions of the said Act and,

therefore, the Court, as contemplated by the said

Act, will be the one to hear the same. Sections 7

and 8 of the Family Courts Act show that the

jurisdiction of the District Court as well as

subordinate Court is ousted in respect of the matters

which can be entertained by the Family Court. If

therefore in exercise of its Ordinary Original Civil

Jurisdiction within the local limits, High Court is

taking up those very matters which are covered by

the Family Court Cases, and if it is acting as a

District Court, it certainty would lose the

jurisdiction. With reference to section 2(4) of the

Code of Civil Procedure, for all practical purposes,

save and except section 120 of the Code of Civil

Procedure, the High Court which exercises its

Original Civil Jurisdiction will be in the same

position as the District Court in relation to a District

viz. Principal Civil Court of Original Jurisdiction.

The Original Civil Jurisdiction of the High Court is

confined to a limit and, therefore, that would be a

District Court for the purpose of High Court in

exercise of that jurisdiction. When the High Court

exercises its Ordinary Original Civil Jurisdiction in

relation to the matters under the Family Court Act, it

would be a District Court as understood therein. It

would, therefore, lose its jurisdiction.

63 Similarly, in Balram Yadav (supra) the Hon'ble Apex

Court held as under :

“7. Under Section 7(1) Explanation (b) of the Family

Courts Act, 1984, a Suit or a proceeding for a

declaration as to the validity of both marriage and

matrimonial status of a person is within the

exclusive jurisdiction of the Family Court, since

under Section 8 of the said Act, all those

jurisdictions covered under Section 7 are excluded

from the purview of the jurisdiction of the Civil

Courts. In case, there is a dispute on the

matrimonial status of any person, a declaration in

that regard has to be sought only before the Family

Court. It makes no difference as to whether it is an

affirmative relief or a negative relief. What is

important is the declaration regarding the

matrimonial status. Section 20 of the Family Courts

Act also endorses the above since the said Act has an

overriding effect on other laws.”

64 Having closely studied and pondered and in the light

of above pronouncements an irresistible and inescapable

conclusion would be that when the High Court exercises its

ordinary original civil jurisdiction in relation to the matters under

the Act, it would be a District Court as understood therein.

Resultantly, it would be denuded of its jurisdiction. In our view,

since in view of Explanation (b) to Section 7(1) of the Act, the

reliefs sought in the proceedings filed before the Family Court

could not have been granted by the Civil Court in the suits filed by

the appellant, question of applicability of Order 2 Rule 2 did not

arise even remotely.

65 The learned counsel for the respondent, in this regard,

heavily placed reliance on the decision of Smiti Nitikona Banerjeec

(supra) wherein the High Court of Gauhati (Division Bench) while

interpreting Section 7(b) of the Act held that 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.

It further held that 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.

66 We, respectfully differ from what has been held by the

learned Judges of the Gauhati High Court for the simple reason

that it is against not only the letter and spirit of provision of

Section 7 but as also against the rationale behind the Object and

Reasons of the Act, which we have already adhered to and

explained. Besides, the observations of the Gauhati High Court

appears to be wrong in the teeth of decision given in Balram

Yadav (supra) by the Hon'ble Apex Court.


67 In view of the foregoing discussion, we cannot concur

with the reasoning and conclusion arrived at by the learned

Family Court which wrongly dismissed the appellant’s petition as

being barred by the provision of Order 2 Rule 2 of the Code. We

are satisfied that the impugned order of the learned Family Court

cannot be sustained to the extent to which the bar enacted under

Order 2 Rule 2 of the Code has been applied.

68 We, therefore, pass the following order :

ORDER

(i) Appeal succeeds and is accordingly allowed.

(ii) The impugned order is set aside to the extent that the

petition is barred by provision of Order 2 Rule 2 of the Code.

(iii) Cross Objection stands dismissed.

(iv) Family Court Petition No.B-62 of 2016 filed by the appellant

against the respondent is held maintainable. It is

accordingly restored to its original file for being tried on

merits and in accordance with law.


(v) The learned Family Court is directed to decide the Family

Court Petition No.B-62 of 2016 expeditiously and

preferably within six months from the date of receipt of this

order on its own merit.

(vi) No orders as to costs.

(V. G. BISHT, J.) (R.D.DHANUKA, J.)

Learned counsel for the respondent seeks stay of the operation of

the order. Application for stay is rejected.

(V. G. BISHT, J.) (R.D.DHANUKA, J.)


Print Page

No comments:

Post a comment