Saturday, 10 April 2021

Whether High court can entertain the matrimonial matter as the court of Original Jurisdiction at Mumbai if it comes within the family court's jurisdiction?

 The plea with regard to the Family Court is raised on the basis of the provisions of section 2(e) along with section 8 of the said Act. Exclusion of jurisdiction of the Civil Court will also have to be considered. Section 2(e) reads as under:

"2(e) all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code."

Relevant portion of section 8 reads as under :

"8. Exclusion of jurisdiction and pending proceedings.---

(a) no District Court or any Subordinate Civil Court referred to in subsection (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 sub-section;"

5. Reference to District Court or any Subordinate Civil Court may in the aforesaid portion of the said section 8 will therefore have to be understood with reference to the Code of Civil Procedure. Section 2(4) of the Code reads as under:

"2(4) district means the local limits of the jurisdiction of a principal Civil Court of Original Jurisdiction (hereinafter called a "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court."

28. Virtually, the litigation before the Family Court is a mixture of inquisitorial trial, participatory form of grievance redressal and adversorial trial.

As the Family Court is left to devise its own practice, it can have a judicious mixture of all three of them and can as well proceed under any of- them exclusively.

29. The anomaly would thus be obvious. The Ordinary Original Civil Jurisdiction is held to be retained as per the learned Judges of the Division Bench and the learned Judges of the Full Bench of the Madras High Court. The procedure will be in accordance with the respective rules of the High Court on its Original Side. When legal representation being a certainty with all trapping of a full-fledged trial and the Evidence Act, 1872 will apply with force and rigour.

30. The litigants deciding to litigate within the limits of the City of Mumbai will thus continue to operate under the existing system. The litigants other than that litigating with new system will have the benefit of the aforesaid Family Courts Act which with reference to the aforesaid changes brought about in the conduct of the matters before the Family Court is clearly radical departure from the accepted form of a trial of a Civil Court. If the legislature in its wisdom has decided to make this departure while interpreting any provision of it, in our opinion, the interpretation should be in furtherance of the objective.

31. When thus interpreted, in our opinion, the conclusion would be inescapable that 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. The reference is answered accordingly.

Bombay High Court
Romila Jaidev Shroff vs Jaidev Rajnikant Shroff on 5 May, 2000
Equivalent citations: AIR 2000 Bom 356, 2000 (4) BomCR 122, (2000) 3 BOMLR 14, II (2000) DMC 600, 2000 (3) MhLj 468
Author: N Pandya

Bench: N Pandya, S R Desai, V Daga.
Read full Judgment here: Click here
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