Final Order 1

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS NO. 1117/23
SAIYED ABRAR VS. MUSHARAT PARVEEN
24.08.2023
Fresh suit for declaration and dissolution of marriage
received by way of assignment. It be checked and registered.
Present: Sh. Ankit, Ld. Counsel for plaintiff alongwith
plaintiff. (through VC)
Arguments on the maintainability of the present suit
heard.
It is pertinent to note at the outset the judgment of
Hon’ble Supreme court in Patil Automation Private Limited vs
Rakheja Engineers Private Limited whereby it was observed
that a Court has power to reject a plaint suo motu invoking its
powers under Order VII Rule 11 of the Code of Civil Procedure,
1908. The Court has to hear the plaintiff before it invokes its
power besides giving reasons under Order VII Rule 11.
In the present case, Opportunity was given to
plaintiff to advance arguments on the maintainability of the
present suit and the arguments so made were heard.
Upon a perusal of the pleadings, It is observed that the
reliefs sought by the plaintiff are declaration of dissolution of
marriage.
It is observed that the jurisdiction of this court is
barred in the present matter by virtue of explanation (d)
appended to section 1 of the Family Courts Act. The same is
reproduced below for perusal:-
1 Jurisdiction.-
(1)
Subject to the other provisions of this Act, a Family Court
shall-
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(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:
XXXXXXXXX
(d) a suit or proceeding for an order or injunction in
circumstance arising out of a marital relationship;
XXXXXXXX
In this regard, it is relevant to mention here the recent
pronouncement of Hon'ble Justice Sh. C. HARI SHANKAR in
“AVNEET KAUR versus SADHU SINGH & ANR (CM(M)
69/2020 & CM APPL. 2707/2020)” relevant portion of which is
reproduced below:-
“21. 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.
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.
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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 marital 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.
31. It is also a well-settled jurisprudential principle that where
special Courts or Tribunals are set up, and disputes regarding
jurisdiction arise, the attempt should be to confer jurisdiction on
such special Courts or Tribunals, rather than to exclude their
jurisdiction.”
In facts of the present matter in my opinion the
circumstances that led to the filing of the present suit arise out of
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the matrimonial relationship between plaintiff and defendant and
thus, the present suit should be tried by the Family Court.
Thus, it appears that in view of Section 7(1)(d) of
the Family Courts Act, 1984, the family Court has the
jurisdiction to try the present matter and the present suit is
barred by law to be tried in this Court and thus the plaint is
rejected u/o VII Rule 11(d) CPC.
File be consigned to record room.
(Shaina Goyal)
Civil Judge-N/W District
Rohini Courts/24.08.2023
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