Shri Sunil Padmanabh vs Smt Shanthi K R

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

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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

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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

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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

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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

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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

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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.

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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

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(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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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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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

MEG List No.: 1 Sl No.: 1