Whether the family court has jurisdiction to entertain a suit between mother-in-law and daughter-in-law?

 Unquestionably, the dispute in this case revolves around Clause (d) of explanation to Section 7 (1) of the Family Courts Act. A mere glance at the provision indicates that it has been worded in careful and cautious terms. It states that a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship would lie exclusively before the Family Court. 

{Para 21}

22. What has to be seen is whether the circumstances in which the order or injunction is sought in the present case arise out of a marital relationship. The test is not whether the cause of action, forming the the basis of the prayer for injunction, arises out of a marital relationship or whether the marital relationship is the reason for the grievance ventilated by the plaintiff. All that has to been seen are the circumstances in which the injunction is sought. Once the Court identifies the circumstances, if those circumstances arise out of a marital relationship, Clause (d) of the Explanation to Section 7 (1) of the Family Courts Act would ipso facto be attracted.

23. Explanation (d) in Section 7 (1) of the Family Courts Act does not, either expressly or by necessary implication, require the parties to the lis to be husband and wife. Clearly, in so opining, the learned SCJ has effectively re-written the statutory provision. There is nothing in Clause (d) of the explanation to Section 7 (1) of the Family Courts Act in which indicates that the clause would apply only where the litigation is between husband and wife. For the clause to apply, all that is required is that (i) there is a marital relationship, (ii) the martial relationship has resulted in a certain set of circumstances and (iii) the order or injunction which is sought in the suit is sought in those circumstances.

24. Applying these tests to the case at hand, if one examines the plaint, and the case set up by the respondents in the plaint, it is clear that the circumstances in which injunction has been sought by them have arisen out of the marital relationship between the petitioner and Pardip. Had the petitioner not married Pardip, she would never had been the daughter-in-law of the respondents, she would never had come to stay in the residence of the respondents, the respondents would never had given her any permissive licence to reside therein, and the entire chiaroscuro of events, which have been emphasised in the plaint by the plaintiffs, to highlight the alleged ignominy and persecution to which petitioner allegedly subjected the respondents, would not be in existence. The fact that the petitioner married the respondents’ son was the foundation of the relationship that emerged between the petitioner and the respondents, and it was in the circumstances which arouse out of that relationship that the entire dispute between the respondents and the petitioner, as per the allegations contained in the plaint, filed by the respondents, arose.

28. That being so, in my view, the case squarely falls within Clause (d) of the explanation to Section 7 (1) of the Family Courts Act.

29. I am unable, therefore, to subscribe to the view expressed by the learned SCJ in the impugned order 30th October, 2019 in Suit 12114/2016 that the suit was not required to be transferred to the Family Court.

IN THE HIGH COURT OF DELHI AT NEW DELHI

CM(M) 69/2020 & CM APPL. 2707/2020

AVNEET KAUR  Vs SADHU SINGH & ANR .

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

Dated: 01.06.2022

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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

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Whether judgment passed by civil court will be nullity if family court is working in that area?

However, the issue is, when no objection was raised to the jurisdiction in the trial Court but was raised in the Ist & IInd appellate Courts, whether it is curable irregularity and whether the judgment & decree would be binding unless prejudice is shown to the parties. If the establishment of Family Court and vesting of exclusive jurisdiction with the Family Court is treated at par with the territorial jurisdiction, then the decision passed by Civil Judge Sr. Divn., will not be a nullity. However, if it is subject-wise exclusion of jurisdiction u/s. 8, the decision will be a nullity.

10. Learned counsel Shri. Patil placed reliance on Dr. Jagmittar Sain Bhagat vs. Dir., Health Services, Haryana and Ors. reported in MANU/SC/0703/2013 : AIR 2013 SC 3060, wherein it is laid down that, if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply.

11. Section 8 is specific. It lays down that, where a family court is established in any area, 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. Similarly, the jurisdiction of the Magistrate court is also ousted by the sub-clause (b).

15. The specific ouster of jurisdiction of the courts in respect of area for which the Family court has been established u/s. 8 shows that, the subject-wise jurisdiction of Civil Judge Sr. Divn., has been ousted and it is not a simple question of territorial jurisdiction. Therefore, the decisions rendered by the courts having no subject-wise jurisdiction will be a nullity.

16. In fact, the Civil Judge Senior Division should have been more careful and should not have entertained the petition and should have returned it for presentation before the proper court. Whenever in any city there is a family court, all Civil Judges (Sr. Divn.) should see whether the cause of action for the matrimonial petitions filed before them arises within the area for which Family Court has been established or not. If it is established, the Civil Judges (Sr. Divn.) should return the plaint and should avoid unnecessary wastage of time, money and energy of the litigants. As Sec. 8 of the Family Courts Act has taken away the jurisdiction, the decisions rendered by the Civil Judges (Sr. Divn.) and District Courts are nullity.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 237 of 2016

Decided On: 02.11.2018

 Ravindra Sukhdev Ghadge  Vs. Swati Ravindra Ghadge and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(2) MHLJ 110

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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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When property dispute between mother-in-law and daughter-in-law will come within jurisdiction of family court?

We are of the considered opinion that the crucial

aspect to be considered while deciding the question as to

whether it is a suit or a proceedings instituted seeking an

order or injunction in the circumstances arising out of the

marital relationship, is the cause of the lis itself and not the

parties to the lis.     Prime consideration should be as to

whether the cause of the lis has got any bearing with the

marital relationship.     An objective assessment should be

made as to whether the cause has got any stem from the

circumstances arising out of the marital relationship.        In

other words, whether the cause should have been existed

but for the marital relationship, shall be the basis of the

assessment. If the answer is on the positive, definitely the

lis can be categorized as one not coming within the scope of


explanation (d). But if the cause of action is emerging out

of     any     circumstances related to    the   matrimonial

relationship and the same could not have existed

independently, then the suit can be maintained before the

Family Court, and it will fall under Explanation (d) to

Section F(1) of the Act.
 When the facts of the case at hand is analyzed

based on the above said parameters, it is evident that the

claim of the 1st respondent that she paid money to the 1st

appellant by disposing her own property for discharging

the bank liability of the mother-in-law, on the basis of a

specific understanding that the B-schedule property will be

assigned into her name, has got a clear stem arising out of a

circumstances connected to a marital relationship. Since

the alleged promise was not complied with and since the 1st

appellant had assigned the properties to her sons, the 1st

respondent is claiming declaration of title over the property

contained in B-schedule.    The alleged transaction of the 1st

respondent selling her own property for discharging her

mother-in-law's debt on the basis that the B-schedule will be


assigned to her name, happens only because of the

matrimonial relationship of the parties as daughter-in-law

and mother-in-law.        But for the marriage of the 1st

respondent with the son of the 1st appellant, such an alleged

transaction would not have taken place.        Therefore the

cause of action agitated against the mother-in-law had

arisen from circumstance connected with the matrimonial

relationship .      Whether the parties to the marriage are

parties        to the lis, becomes     immaterial  in    such

circumstances.       Therefore    considering   the    wider

interpretation to be given to the ambit and scope of the

explanation contained under clause (d), as guided by

binding precedents of this court and the hon'ble Supreme

Court, we are persuaded to hold that the cause agitated is

emerging from circumstances arising out of marital

relationship. It is rightly observed by the Family Court that

the alleged contract between the 1st respondent and the 1st

appellant is only due to the marriage of the 1st respondent

with the son of the 1st appellant.    The entire transaction

took place after the marriage. Therefore it is found that the


dispute will squarely come            within the purview   of

explanation (d) to section 7(1) of the Act.

         The Family Court observed that, the question as

to whether the transaction is a valid transaction, where

there is any bar of limitation, whether the relief claimed

under the other enactment can be claimed in the main

petition itself etc. are matters which need to be adjudicated

while contesting the suit.       We perfectly agree with such

observations and hold that the original petition instituted

before the Family Court is maintainable before that court.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                        PRESENT:

                           MR.JUSTICE C.K.ABDUL REHIM
                                                               &
                          MRS. JUSTICE MARY JOSEPH

   Dated;              15TH DAY OF OCTOBER 2015
                                           Mat.Appeal.No. 999 of 2015 ()
                                               

         JANAKI AMMA, Vs RENUKA SADANANDAN, 

Citation:AIR 2016 kerala 75

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