Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.825 OF 2019
IN
S.C. SUIT NO.2257 OF 2018
CNR NO.MHCCO10021182019
Sheela Sunil Karbhari ..Plaintiff
V/s
Kiran Ramchandra Rane ..Defendant
Ld. advocate P.M.Bhansali for the plaintiff
Ld. advocate Vira for the defendant
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 06/08/2019
ORAL ORDER
1. This notice of motion is tendered by the defendant
for rejection of the plaint. The contention of the
defendant is that plaintiff in the present suit has
challenged the validity of her marriage with the
defendant and sought declaration that the marriage
is null and void. He would submit that the reliefs
relating therewith falls under the provisions of
section 5 and 11 of Hindu Marriage Act. Therefore,
in view of provision of section 7(1) Explanation (b)
of the Family Courts Act 1984, Family Court at
Bandra has exclusive jurisdiction to entertain the
present suit.
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2. The other contention is that no cause of action is
made out against the defendant which can be
entertained by this Court. The jurisdiction of this
Court is barred u/s. 8 of the Family Courts Act, 1984.
3. The plaintiff filed the reply and raised the contention
that plaint cannot be rejected on the ground that this
Court has no jurisdiction and Family Court has
jurisdiction. At the most the plaint can be returned
to be presented to the appropriate and proper Court.
There is no whisper in the entire notice of motion as
to how and what circumstances the suit is otherwise
barred and plaint is required to be rejected. The
contention that prayer clause (f) does not disclose
any cause of action is to be believed and accepted.
Thus, on this ground also the notice of motion is
liable to be dismissed. He argued that on perusal of
the avernments in the plaint it reveals that the
registration of the marriage is outcome of the forged
and fabricated documents. The plaint avernments are
required to be taken into consideration. The
sequence of events in the plaint would reveal that
there has not been a marriage between plaintiff and
defendant and the purported entry for registration of
the marriage is due to forged and fabricated
documents and the entries are required to be
cancelled and to be revoked. The plaintiff has not
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prayed for declaring marriage as null and void. The
suit proceed on the footing that there is no marriage
and as such the documents showing purported and
alleged registration of marriage is the outcome of
fraud and forged documents. The plaintiff has also
claimed consequential loss caused to her by the
mischief done by the defendant showing their
relations as husband and wife. The plaintiff
therefore prays for dismissal of notice of motion.
4. At the outset it is to be made clear that although in
the notice of motion it is prayed for rejection of the
plaint but on the perusal of the notice of motion, it
appears that the rejection is claimed on the ground
that this Court has no jurisdiction as per Section.8 of
the Family Courts Act, 1984. Therefore, irrespective
of the fact of relief of rejection of plaint claimed by
the defendant, the Court can consider the present
notice of motion to the extent of return of plaint as
the issue raised is that this Court has no jurisdiction
to entertain this suit and Family Court has
jurisdiction to entertain and try this suit.
5. The foundation of the plaintiff's case is that the
plaintiff disputed her marriage with the defendant.
The stand of the plaintiff is that no marriage was
performed between her and defendant on
08/04/2004. She claims that marriage registration
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form is false and fabricated. The registration needs
to be struck down. The plaintiff has sought
declaration of execution of marriage dated
21/03/2006 vide entry no.14056 in the register of
marriage as null and void. It is the contention of the
plaintiff that on the basis of forged and fraudulent
document the said entries were caused by the
defendant. She had not performed marriage with
defendant.
6. On perusal of the plaint avernments, it appears that
the plaintiff has challenged the validity of the
marriage. She has challenged her matrimonial status
with defendant. It is necessary to reproduce relevant
portion of section 7 of the Family Courts Act, 1984,
to ascertain whether relief claimed by the plaintiff
come within the domain of the Family Court which is
reproduced as under:
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 purpose of exercising such
jurisdiction under such law, to be a district court or,
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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)
(b)a suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status
of any person.
7. On perusal of the explanation (b) to sub section (1)
of Section 7 of Family Courts Act, 1984, it is apparent
that Family Court is vested with the power for
deciding the validity of the marriage or matrimonial
status of a person. On perusal of the plaint
avernments it appears that in fact there was a
marriage. The plaintiff disputed the said marriage.
So, at this juncture the issue is as to validity of
marriage which is to be entertained and tried by the
Family Court. The Family Court is a Civil Court of
coordinate jurisdiction. As per section. 8 of Family
Courts Act, 1984, there is express bar for the Civil
Court to entertain the suit of the nature specified u/s.
7 of Family Courts Act, 1984. No doubt, the Civil
Court is the Court of residuary jurisdiction and
therefore can exhaust jurisdiction to entertain such
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type of dispute. But where there is express bar to the
jurisdiction of the Civil Court by way of section.8 of
Family Courts Act, 1984, the present suit cannot be
entertained by this Court.
8. The other issue raised by the plaintiff is that the
plaintiff has claimed compensation. The issue of
compensation cannot be decided by the Family
Court. He argued that the suit is comprehensive suit
consisting of various relief which can be decided by
Ordinary Civil Court. The inquiry for relief of
compensation or the fraud played by defendant upon
plaintiff and/or forged document prepared by the
defendant are interconnected to main relief. Those
reliefs are ancillary to main relief. The same has to
be considered while inquiry of validity of marriage.
The Family Court being Court of coordinate civil
jurisdiction can inquire in to the said issue. In view of
the above discussion, the jurisdiction of the Civil
Court is barred u/s. 8 of Family Courts Act, 1984 and
therefore the plaint is required to be returned to the
plaintiff to present it to the Court which has
jurisdiction. Hence, it is expedient to pass following
order:
ORDER
1.Notice of Motion No.825/2019 is allowed and
thereby order to return the plaint to the plaintiff to
be presented before the court to which it have been
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instituted i.e. Family Court, Bandra.
2.The plaintiff is intimated about the decision of
return of plaint for want of jurisdiction.
3.The plaintiff to take steps as per Order 7 rule 10(A)
of the CPC.
4.Notice of Motion is disposed of accordingly.
06/08/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 06/08/2019
Transcribed on : 09/08/2019
Signed on : 21/08/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
21/08/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
06/08/2019
Judgment and order signed by P.O. 21/08/2019
Judgment/order uploaded on 21/08/2019
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