not have the jurisdiction to grant these reliefs of maintenance and
share in the matrimonial property. Under the provisions of the
Protection of Women from Domestic Violence Act, 2005, Section 26
confers concurrent jurisdiction on all the three forums, including the
Family Court, the Court of Judicial Magistrate First Class and also the
Civil Court, as regards the relief like the maintenance. So far as the
relief in respect of the matrimonial property or the property standing
in the joint name of both the spouses which is a fact in this case also,
the Civil Court is having the jurisdiction to entertain such suit. As a
matter of fact, according to learned counsel for the Appellant also,
Section 22 of 'The Specific Relief Act, 1963', clearly provides for
partition of such jointly owned property and under the provisions of
'The Specific Relief Act, 1963', it is the Civil Court, which is having the
jurisdiction to grant such decree. Therefore, it is not a case, where the
Civil Court was not having the jurisdiction to grant the reliefs which
the Respondent had claimed in the suit. Hence, it also cannot be said
that the trial Court has exceeded its jurisdiction.
31] As regards the reliance placed by learned counsel for the
Appellant on the judgment of the Hon'ble Supreme Court in the case of
Chandrika Singh (supra), there the issue framed was relating to the
tenancy, for which a separate competent authority is established and
the Civil Court's jurisdiction to decide such issue is excluded.
Therefore, it was held that such issue was required to be referred to
the tenancy authorities. Here, in the case, the jurisdiction of the Civil
Court is not excluded in any way to decide both these issues relating to
maintenance of the children and the right and share of the
Respondent in the jointly owned flat. The Civil Court was having very
much jurisdiction and therefore, there is no question of the trial Court
exceeding its jurisdiction or acting beyond its jurisdiction or
exercising the jurisdiction, which was not vested in it. Hence, on this
score also, the contention raised by learned counsel for the Appellant
cannot be accepted.
32] Third and the most important factor which is required to
be considered is that the law always expect that all the disputes
between the parties should be decided in one forum and in one
proceeding, so as to avoid the multiplicity of proceedings and the
waste of time, energy and money of the parties in prosecuting the
remedies in different forums. The right of maintenance and right in
the matrimonial property are the consequences of the marriage or its
dissolution. Those reliefs are incidental to the main relief of
'dissolution of marriage' and therefore, these reliefs are very much
integral part of decree of 'dissolution of marriage'. Hence, they are
required to be considered in the same proceeding, even if at times
such reliefs are not asked for also. It is well recognized that the award
of maintenance is the fall out of the decree of 'dissolution of marriage',
hence even if at times, the Respondent has not asked for the
maintenance, she is awarded that maintenance for herself and her
children while passing the decree for 'dissolution of marriage'. It may
be stated that, even when the decree is of 'Restitution of Conjugal
Rights' under Section 9 of 'The Hindu Marriage Act, 1955' there is
provision for award of maintenance under Order 21, Rule 33 of the
Code of Civil Procedure, till the decree is complied with. The point to
be stressed is that the relief of maintenance whether to the wife or the
children is incidental to the relief of 'dissolution of marriage'. Merely
because 'The Dissolution of Muslim Marriages Act, 1939', does not
mention that the Court is also having the jurisdiction or power to
grant such relief, it cannot be said that the Court is not having
jurisdiction to grant it, if it is incidental, claimed and the Court finds it
necessary to grant the same. Moreover, the right of maintenance
given to wife and the minor children under the provisions of the
Muslim Women (Protection of Rights on Divorce) Act, 1986, is in
addition to the right, which the minor children are having under
Muslim Law to get maintenance from the father. The law expects that
the parties should not be driven to approach the different forums but
in one forum itself they should be granted whatever reliefs to which
they are entitled.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST.) NO. 11650 OF 2017
WITH
CIVIL APPLICATION NO. 1570 OF 2017
IN
SECOND APPEAL (ST.) NO. 11650 OF 2017
Adnan Chara Vs Farhat Adnan
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
PRONOUNCED ON : 2nd AUGUST, 2018.
Citation:AIR 2018 Bom 282
