Shri Sunil Padmanabh vs Smt Shanthi K R

-1- NC: 2024:KHC:29104 WP No. 17435 of 2017

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24TH DAY OF JULY, 2024

BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 17435 OF 2017 (GM-FC) BETWEEN:

SHRI. SUNIL PADMANABH S/O SHRI S.B.PADMANABH, AGED ABOUT 47 YEARS, R/AT NO.666, 1ST MAIN, 2ND STAGE, RAJAJINAGAR, BANGALORE-560 010 ...PETITIONER (BY SRI. GEETHA DEVI M.P., ADVOCATE)

AND:

SMT.SHANTHI K R D/O SRI.RAMAMURTHY, EX-WIFE OF SUNIL PADMANABH, AGED ABOUT 43 YEARS, R/AT NO.9, VHBCS LAYOUT, WEST OF CHORD ROAD, Digitally signed by BANGALORE-560 086 MEGHA ...RESPONDENT MOHAN (BY SRI. HEMALATHA MAHISHI, ADVOCATE) Location: HIGH THIS WP IS FILED ARTICLES 226 AND 227 OF THE COURT OF CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS FROM KARNATAKA IN O.S.NO.101/2009 ON THE FILE OF THE VI ADDITIONAL PRINCIPAL JUDGE FAMILY COURT AT BANGALORE AND TO SET ASIDE THE ORDER DATED: 28.3.2017 IN O.S.NO.101/2009 ON THE FILE OF THE VI ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE AS PER ANNEXURE-F.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI -2- NC: 2024:KHC:29104 WP No. 17435 of 2017

ORAL ORDER

(PER: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI)

Aggrieved by the order passed in O.S.No.101/2009 dated

28.03.2017 by the VI Additional Principal Judge, Family Court,

Bengaluru, whereby the Family Court had returned the plaint

on the ground of jurisdiction, the petitioner who is the plaintiff

in the suit is before this Court.

2. The petitioner and the respondent got married on

24.02.2000 and the suit schedule property was purchased on

15.09.2004. In view of the disputes between the parties, they

had filed M.C.No.2881/2006 which came to be allowed on

17.02.2006. Thereafter, the petitioner had issued legal notice

to the respondent on 27.05.2009 and filed a suit in

O.S.No.101/2009 before the Family Court at Bangalore seeking

declaration that the plaintiff is the absolute owner of the suit

schedule property, consequentially set aside/cancel the name

of the defendant in the encumbrance of the suit schedule

property as per the sale deed dated 15.09.2004 and direct the

defendant to transfer the suit schedule property in the name of

plaintiff by collecting necessary expenditure for transfer in case -3- NC: 2024:KHC:29104 WP No. 17435 of 2017

if the defendant fails to follow the directions of the Court

alternatively, the Court to transfer the suit schedule property in

the name of the plaintiff by registering the sale deed collecting

the necessary expenditures for transfer and consequential relief

and to direct the defendant to deliver the vacant possession of

the suit property to the plaintiff as the plaintiff is the owner of

the suit schedule property and to direct the defendant to hand

over the original title documents i.e., the sale deed dated

15.09.2004 and such other reliefs.

3. In the suit, the defendant had filed her written

statement and also filed counter claim seeking recovery of an

amount of Rs.2,88,387.75/- from the plaintiff after deducting

an amount of Rs.2,20,000/- which was paid by the plaintiff

towards discharge of his outstanding liability and has sought for

accounts about her alleged sale of her shares by the plaintiff to

the tune of an amount of Rs.1,37,095/-.

4. The evidence was let in and the Family Court had

elaborately discussed the facts of the case. The judgment is

running into 40 pages and the Family Court had also framed as

many as 8 issues and another 4 additional issues. Issue No.4 is -4- NC: 2024:KHC:29104 WP No. 17435 of 2017

whether the suit of the plaintiff is not maintainable under

Family Courts Act. Then the Court had dealt with the issue

whether the suit is maintainable before the Family Court. The

Court had observed that the divorce was granted on

17.02.2007 and after obtaining the divorce, the plaintiff has

filed the suit in the year 2009. The Court had further observed

that the plaintiff has not filed the suit pending divorce petition

and after obtaining the divorce the plaintiff has filed suit

against the defendant seeking declaration. The Court came to

the conclusion that after obtaining divorce by the parties there

is no relationship in between the parties as husband and wife

and they cannot maintain a suit before the Family Court and

the family Court has no jurisdiction to entertain the same. The

Court had also observed that the property is situated at

Srirangapatna, Mandya District and accordingly directed the

office to return the plaint along with documents if any to the

plaintiff and the plaintiff was directed to present the plaint

before the competent court within fourteen days from the date

of the order.

5. Learned counsel appearing for the petitioner submits

that the Family Court failed to appreciate the fact that though -5- NC: 2024:KHC:29104 WP No. 17435 of 2017

the parties are divorced, still the Family Court has got the

jurisdiction. Learned counsel submits that the interpretation

that the suit does not lie in the Family Courts when the

marriage is not subsisting is contrary to the law laid down by

the Hon'ble Apex Court in the case of K.A.Abdul Jaleel Vs.

T.A.Shahid1. Learned counsel had relied on para Nos.10, 11,

12, 13 and 14 of the judgement and she had also relied on the

judgment of Division Bench of this Court in the case of

Nagaraj and Another Vs. Ammayamma2, wherein the Court

had specifically considered Section 7(d) of the Family Courts

Act which deals with "a suit or proceeding for an order or

injunction in circumstances arising out of a marital

relationship". Basing on the same, learned counsel submits that

the property was purchased during the subsistence of the

marriage and as it squarely falls under Section 7(d) of the

Family Courts Act, the Court ought not to have held that the

Family Courts have no jurisdiction and ought not to have

returned the plaint.

6. When it comes to the territorial jurisdiction, learned

counsel had relied on the judgment of the Hon'ble Apex Court 1 AIR 2003 SC 2525 2 ILR 2001 KAR 4004 -6- NC: 2024:KHC:29104 WP No. 17435 of 2017

in the case of Hire Lal Vs. Sri.Kalinath3 and basing on the

said judgment, it is submitted that the issue of territorial

jurisdiction has to be raised at an earliest point of time and

once the party do not take such an objection, it is not

permissible for them to raise the same at a later point of time.

Basing on this, it is submitted that it was never the case of the

defendant that the Family Court has no territorial jurisdiction

and further, the defendant has also filed counter claim and they

have submitted themselves to the jurisdiction of the Court. As

such, the Family Court at Bangalore is having territorial

jurisdiction. Learned counsel submits that now several issues

are framed and the matter was pending for eight years before

the Family Court and finally the plaint was returned. Now, by

setting aside this order, if the Family Court is directed to

proceed from that stage, basing on the evidence, the Court can

consider the case and pass appropriate orders.

7. Learned counsel appearing for the respondent submits

that as far as the jurisdiction of the Family Court is concerned,

in the light of the judgment of the Hon'ble Apex Court in the

case of K.A.Abdul Jaleel referred supra, the Family Courts are

3 (1962) 2 SCR 747 -7- NC: 2024:KHC:29104 WP No. 17435 of 2017

having the jurisdiction to try a dispute which is arising out of

the marital relationship. But when it comes to the territorial

jurisdiction, learned counsel submits that the property is

situated at Mandya District and the Family Court at Bangalore

do not have the jurisdiction and even on that ground also, the

plaint has to be returned and it has to be submitted before the

appropriate Court.

8. Having heard the learned counsels on either side,

perused the entire material on record. The Family Court had

returned the plaint on two grounds. One is the territorial

jurisdiction and the other is the inherent lack of jurisdiction of

the Family Court to entertain the suit. The plaintiff and the

defendant got married on 24.02.2000 and the property was

purchased on 15.09.2004. Divorce was granted on 17.02.2006

and the suit was filed on 08.07.2009. The Court had held that

as the parties are divorced and as there is no relationship

between the husband and wife, the Family Courts have no

jurisdiction. Before dealing with the said observation of the

Family Court, it is appropriate to look at Section 7 of the Family

Courts Act.

-8-

NC: 2024:KHC:29104 WP No. 17435 of 2017 Section 7 of the Family Courts Act, reads thus:

"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 circumstance 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) Subject to the other provisions of this Act, a Family Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and -9- NC: 2024:KHC:29104 WP No. 17435 of 2017

(b) such other jurisdiction as may be conferred on it by any other enactment."

9. Section 7(d) of the Family Courts Act deals with "suit

or proceeding for an order or injunction in circumstances

arising out of a marital relationship". In the judgment of the

Division Bench of this Court in the case of Nagaraj referred

supra, the Court had discussed in detail about the scope of

Section 7 of the Family Courts Act and the judgment of the

Hon'ble Apex Court in the case of K.A.Abdul Jaleel referred

supra, makes it very clear that the provision cannot be

interpreted in such a way as it is applicable only during the

subsistence of marriage and it even applies to the parties who

are divorced. Considering the same, as far as that issue is

concerned, order of the Family Court is not a well considered

one and it is contrary to the settled law. Even the Family Courts

will have jurisdiction in respect of the disputes between the

parties who are divorced. However, subject to Section 7(d) of

the Family Courts Act, whether it is a transaction or the dispute

should have taken place during the subsistence of the marriage

and it is arising out of a matrimonial relationship.

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NC: 2024:KHC:29104 WP No. 17435 of 2017

10. Then coming to the second issue of territorial

jurisdiction, this Court is not able to appreciate the argument

that is advanced by the learned counsel for the petitioner. The

judgment which the learned counsel for the petitioner had

relied on is altogether based on different facts and

circumstances of the case where in an execution proceedings

an order was questioned on the ground that the Court which

had passed the decree had no territorial jurisdiction. Then the

Court had observed that it cannot be challenged on that ground

in execution proceedings and he is stopped from taking such

objection in the execution. In the considered opinion of this

Court, that judgment do not apply to the facts of this case. The

Hon'ble Apex court in the case of Harshad Chiman Lal Modi

vs Dlf Universal and Another4 had held that where the

property is situated, the Courts will have the jurisdiction. Even

if the defendant agreed to the jurisdiction of the Court, it does

not confirm the jurisdiction on the Family Court at Bangalore.

On this ground, this Court is upholding the order of the Family

Court in returning the plaint. Coming back to the facts of the

case, in the present case, the property is situated in Mandya

4 AIR 2005 SC 4446

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NC: 2024:KHC:29104 WP No. 17435 of 2017

District. As this Court is already given a finding that the suit is

maintainable in the Family Court, but considering the fact that

the property is in Mandya District, this Court deems it

appropriate to pass the following order:

ORDER

i. The Family Courts within whose jurisdiction the property is situated has the jurisdiction.

The petitioner and the respondent shall present the plaint counterclaim in the appropriate Court within three weeks from the date of receipt of a copy of this order.

ii. The parties/advocates shall be present before the Court on 12.09.2024 without further notice.

iii. Accordingly, the writ petition is partly allowed.

iv. All I.As. in the writ petition shall stand closed.

SD/-

(LALITHA KANNEGANTI) JUDGE

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