K.RAVIRAJA PANDIAN, J.
The appeal arises out of the judgment and decree dated 02.01.2002 made in O.S.No.80 of 2000 decreeing a suit for partition and separate possession of respondent's half share in the suit properties. The correctness of the said decree is canvassed in this appeal.
2. The brief facts are :-
The appellant and the respondent were wife and husband. The marriage that took place between the appellant and the respondent on 06.09.1965 was dissolved by a decree of divorce granted by the High Court of creteil, France on 25.03.1998. On the marriage being dissolved, the spouses are entitled to have half share each in the property that belonged to the "Communate legale". On the aforesaid ground, the respondent sought for decree for partition before the Family Court, Pondicherry. Before the Family Court, Pondicherry it was the defence of the appellant that the High Court of creteil, while granting divorce dated 25.03.1998, also ordered for partition of the property of spouses as envisaged under the French legal system. That judgment of the High Court of Creteil dated 25.03.1998 was marked as Ex.A13 and the translated copy was marked as Ex.A14. As per that judgment, the Court, while considering the question of divorce and the consequence of divorce, had decided the share of the parties and had also provided for liquidation of the spouses' joint assets. As per the said judgment, the parties are at liberty to move the President of Paris, Interdepartmental Chamber of Notaries or the person whom he delegates with this operation for liquidation of the matrimonial settlement.
3. In view of the judgment it was contended that the present suit before the Family Court, Pondicherry was barred by res judicata and the respondent was at liberty to seek execution of the decree of the High Court of creteil. Therefore, the suit for partition was not maintainable. The Family Court negatived the contention and granted the relief. Hence this appeal.
4. Mr.R.Subramanian, learned counsel for the appellants raised two contentions one as to the jurisdiction of the Court with reference to
Section 7 of the Family Courts Act, particularly, clause 'C' to Explanation
Section 7. According to him, the Explanation 'c' refers to a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. So, it is obvious that the suit with respect of properties should be between the parties to a marriage. In this case, the marriage having been already dissolved as early as 1998, the present suit which is filed in the year 2000 before the Family Court is without jurisdiction, in view of the said provision.
5. The second contention is that the decree granted by the High Court of Creteil would operate as a res judicata and as such the parties are bound by the decree of the High Court of creteil and the suit is not maintainable.
6. Mr.T.P.Manoharan, learned counsel for the respondent refuted the contention of the appellant by contending that the suit is very much maintainable under
section 7 of the Family Courts Act, which has jurisdiction to adjudicate upon any question relating to the properties of divorced parties. He further contended that the prayer sought for before the High Court of Creteil was for divorce. In Minutes No.1023/98 Dossier No.96/32605/6D dated 25.03.1988, the Court granted the relief of divorce based exclusively on the fault of either parties and for the payment of compensatory alimony of 2000 FF per month. Even the defence taken in the above referred to decree is that the exclusive fault is on the part of the appellant and further prayer was for confirmation of the measures taken at the time of non conciliation order regarding his son as well as setting up of an occupation indemnity regarding the family home beginning on the date of the judgment. Of course, it is in this context, certain observations were made about the liquidation of the properties. The said observation cannot be regarded as finding recorded on contest in as much as the properties for which the partition sought for all situated in Pondicherry within the jurisdiction of the Family Court, Pondicherry.
7. Heard the learned counsel on either side and perused the materials available on record.
8. In respect of the first contention as to the jurisdiction of the Family court with reference to
section 7 of the Family Court Act, the same has been considered by the Supreme Court and held that dispute over the properties between the parties to a marriage cannot be confined to the parties of a subsisting marriage. That would include to adjudicate with regard to the property of the divorced parties as well. The apex Court in the case of K.A.Abdul Jellel v. T.A.Shahida, AIR 2003 SC 2525 held as follows :
"The submission of the learned counsel to the effect that this Court should read the words "a suit or proceedings between the parties" as parties to a subsisting marriage, in our considered view, would lead to miscarriage of justice.
The Family Court was set up for settlement of family disputes. The reason for enactment of the said Act was to set up a Court which would deal with the dispute concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. The said Act was enacted despite the fact that Order 32A of the Code of Civil Procedure was inserted by reason of the CPC (Amendment) Act, 1976, which could not bring about the desired result.
It is well settled principle of law that the jurisdiction of a Court created specially for resolution of the dispute of certain kinds should be construed liberally. The restricted meaning if ascribed to explanation (c) appended to
section 7 of the Act, in our opinion would frustrate the object wherefor the Family Courts were set up."
9. Counsel for the appellant having seen the above judgment has not pressed this issue.
10. In respect of the second contention, Section 11 CPC provides that, "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
11. So, in order to effectively put forth the plea of res judicata, it must be proved that (1) Litigating parties must be the same; (2) the subject matter of the suit also must be identical, (3), the matter must be finally decided between the parties; and (4) the suit must be decided by a Court of competent jurisdiction. As contended on behalf of the respondent, the proceedings before the High Court of Creteil was for a decree of divorce. The minutes proceeds as follows :
"The marriage was celebrated on September 6, 1965 before the Civil Registry Officer of Pondicherry (India) without prior marriage settlement. Three children were born of this union. Nithyananda, born on October 25, 1966 in La Tronche, amouda, born on May 28,1969 in Moanda (Congo) and Divyananda, born on March 23, 1981 in Pondicherry (India).
Authorised by a non reconciliation order dated 16 September 1996, Indrabaya Manicassamy petitioned Naiker Doressamy, her spouse, for divorce founded on
Article 242 of the Civil Code, by bailiff's summons dated 11 December 1996. She requested that divorce be pronounced based exclusively on her husband's faults, the payment of compensatory alimony of 2000 FF per month, and the confirmation of the measures taken by the conciliating magistrate.
Mr.Doreasamy concluded by rejecting his spouse's claims and formulated a counter claim based on exclusively her faults. He requested the confirmation of the measures taken at the time of the non-reconciliation order regarding his son as well as the setting of an occupation indemnity regarding the family home beginning on the date of judgment."
12. After narrating the accusations made by the wife, which are five in number, and after noticing that the defendant did not comply with the judgment pronounced on 17 July 1995 by the Judge of Family affairs of the High Court of Creteil, which sentenced Mr.Doressamy to pay his spouse a monthly sum of 2000 FF, and after considering the counter claim of the respondent that it is the appellant who refused to follow him or join him in Pondicherry, despite such an agreement and opening of the locker without the knowledge of the respondent, the High Court of Creteil ultimately decided that it would be proper to pronounce divorce by joint fault of the two spouses and certain relief as to the alimony was granted. Of course it is true that there was certain directions as to the liquidation of the spouses joint assets. Hence, primarily what was adjudicated before the High Court of Creteil was for a decree of divorce. Thus, the subject matter of the suit or proceedings is not identical. It cannot be regarded as a matter directly or substantially in issue, but could be considered as collateral and incidental to the main issue. The matter cannot be regarded to have been directly and substantially in issue unless it was alleged by one party and denied or admitted either expressly or necessary implication by the other. Further the words employed in
section 11 are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party, then the decision would be a res judicata in a subsequent proceedings. If a matter was collateral and incidental in issue and decided on earlier proceedings, the finding therein would not ordinarily be res judicata in a latter proceedings. (See. Lonankutty v. Thomman, AIR 1976 SC 1645).
13. In addition to that, in order to have the partition of the properties which are situated within India, in this case, in Pondicherry, the peripheral order issued in a divorce application decided by a High court at France cannot be regarded as an executable order. Further in Ex.A.14 no division has been made as to the entitlement of the parties. Only certain observations as to the liquidation of the properties were made.
14. In view of the above reasoning, we are not able to approve the argument of the learned counsel for the appellant in respect of the second contention also.
15. For the foregoing reasons, the appeal deserves to be dismissed and it is accordingly dismissed. No costs.
mf/usk Copy to:
The Judge, Family Court Pondicherry