Heard counsel for the parties.
The instant petition is directed against the order dated 4.4.2019 passed by District Judge, Ghazipur in Misc. Civil Appeal No. 17 of 2018 disposing of the appeal filed by the petitioner with a direction to the trial court to decide issue relating to jurisdiction in the light of the observations made in the order, before proceeding further in the matter. The appeal was directed against the order dated 9.3.2018 passed in Original Suit No. 722 of 2017, whereby the application for temporary injunction filed by the plaintiff-petitioner was rejected. The relief claimed in the suit is for cancellation of sale deed dated 13.10.2016 executed by defendant No.3, Mangala in favour of defendants no. 1 and 2; for permanent injunction restraining the defendants from interfering in the possession of the plaintiff in respect of the suit property or raising constructions over the same without getting the property partitioned; and for declaration that defendant No.3 Mangala is son of late Vishwanath and not Bhairam. The appellate court, while deciding the appeal, has held that the main issue involved in the suit is whether defendant No.3 is son of Bhairam or Vishwanath. It has observed that the said issue would fall within the jurisdiction of Family Court in view of Clause (e) of the Explanation of sub-section (1) of Section 7. In the aforesaid backdrop, the above direction had been issued by the appellate court.
Counsel for the petitioner submitted that the issue relating to parentage of defendant No.3 cropped up in relation to title to the suit property. The suit does not involve adjudication of any dispute between spouses nor any dispute arising out of any matrimonial relationship. It also does not involve any declaration as to legitimacy of the defendants. The submission is that the Family Courts are constituted with the object of settlement of family disputes and not of the nature, as has been raised in the suit.
On the other hand, learned counsel for the respondents submitted that since the main issue involved is whether defendant No.3 is son of Bhairam or not, therefore, the said issue would fall squarely under Clause (e) of Explanation of sub-section (1) of Section 7 of the Family Courts Act. He further placed reliance upon clause (d) which provides for a suit or proceeding for an order or injunction in circumstances arising out of a matrimonial relationship to be decided by a Family Court.
Before proceeding to consider the submissions, it would be apposite to take note of the plaint case. The suit was instituted by the plaintiff-petitioner with the allegation that the suit property belonged to his ancestor Khelawan. He was survived by his son Sundar. Sundar had three sons; Mukhram, Bhairam and Rajdev. Mukhram died issueless. Bhairam had two sons, namely the plaintiff-petitioner and defendant No.2, Subedar. It is alleged that Mangala, defendant No.3 is son of Vishwanath. According to the plaint assertions, father of defendant No.3, Vishwanath was resident of a different village. He had no connection with the family of the plaintiff and his ancestors. Defendant No.3 fraudulently succeeded in getting his name entered in the municipal records showing himself as son of Bhairam and on basis thereof, he illegally transferred the suit property in favour of defendant-respondent 1st set alleging himself to be a co-sharer in the properties left behind by Khelawan and Sundar. In essence, the plaint case was that the defendant No.3 wrongly claimed himself to be co-sharer of the suit property as he is in no manner connected with the family of Sundar and Bhairam.
The defendants, on the other hand, have denied the plaint assertions and claim that defendant No.3 is son of Bhairam.
No doubt, having regard to the pleadings of the parties and the relief sought, one of the main issues to be decided by the trial court is whether defendant No.3 is son of Bhairam or not. In case it is held that he is son of Bhairam, the plaint case would stand demolished. On the other hand, if it is established that he is son of Vishwanath, then definitely the sale deed executed by him, asserting himself to be a co-sharer in the properties kept behind by Bhairam, would be void.
Section 9 of the Civil Procedure Code provides that all suits of civil nature except suits of which cognizance is either expressly or impliedly barred, shall be tried by the civil courts. The first Explanation provides that a suit in which right to property is contested is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. The jurisdiction of the civil court to try a suits involving right to property is thus expressly recognised. It is also well settled that in dealing with the question whether a civil court has or has not jurisdiction to entertain a suit, every presumption has to be made in favour of jurisdiction of the civil court, unless there is express or implied bar. The Family Courts Act, 1984 (hereinafter referred to as 'the Act') was enacted by the Parliament to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. The statement of objects and reasons, interalia, provides that Family Courts are being setup for settlement of family disputes where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. One of the object of the legislation was to confer exclusive jurisdiction upon Family Courts in matters relating to:-
"(i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of a marriage or as to the matrimonial status of any person;
(ii) the property of the spouses or of either of them;
(ii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor;
(v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure;"
Section 7 of the Act, lays down the jurisdiction of a Family Court and it provides as follows:-
"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 circumstances 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
(b) such other jurisdiction as may be conferred on it by any other enactment."
The Explanation to sub-section (1) of Section 7 enumerates the disputes which are in the exclusive jurisdiction of Family Courts. It interalia provides that a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them or a suit or proceeding for an order or injunction in circumstances arising out of a matrimonial relationship or a suit or proceeding for a declaration as to the legitimacy of any person is in the exclusive domain of Family Court. There is no dispute as to whether defendant was born out of the wedlock between Bhairam and his wife and he is their legitimate son or not but rather the dispute is whether he is son of Bhairam or Vishwanath, who has no connection with the family of the plaintiff. Thus, the issue of legitimacy is not at all involved, nor Clause (e) of Explanation to sub-section I of section 7 gets attracted. The phrase 'matrimonial relationship' used in Clause (d) of the Explanation to sub-section 1 of section 7 would mean the relationship arising out of marriage between two persons. It is never intended that it would take within its sweep all disputes to property based on lineage of a person. A dispute as to whether A is son of 'X' or 'Y' so as to entitle him to succession of property is definitely not a dispute arising out of a matrimonial relationship.
The Supreme in Samar Kumar Roy vs. Jharna Bera, (2017) 9 SCC 591, considered the issue as to whether declaration sought by plaintiff that defendant is not his legally wedded wife and that she has no right to his property could be given by civil court or the suit has to be instituted before the Family Court, in view of the Sections 7 and 8 of the Act. After considering the reports of Law Commission, scheme of the Act, and Section 34 of the Specific Relief Act, the Supreme Court held that:-
"16. On a reading of the aforesaid propositions, it is clear that the examination of the remedies provided and the scheme of the Hindu Marriage Act and of the Special Marriage Act show that the statute creates special rights or liabilities and provides for determination of rights relating to marriage. The Acts do not lay down that all questions relating to the said rights and liabilities shall be determined only by the Tribunals which are constituted under the said Act. Section 8(a) of the Family Courts Act excludes the Civil Court's jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial separation. It does not purport to bar the jurisdiction of the Civil Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage. Also as was pointed out, an exclusion of the jurisdiction of the civil courts is not readily inferred. Given the line of judgments referred to by the High Courts, and given the fact that a suit for declaration as to legal character which includes the matrimonial status of parties to a marriage when it comes to a marriage which allegedly has never taken place either de jure or de facto, it is clear that the civil court's jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law."
Applying the principles laid down by the Supreme Court and having regard to the scheme of the Act, the irresistible conclusion is that the view taken by the Appellate Court is not sustainable in law.
The issue as to whether defendant No.3 is son of Bhairam or Vishwanath would not fall within the realm of the jurisdiction of Family Courts, which are courts of limited jurisdiction. The relief sought would fall under the ambit of Section 34 of the Specific Relief Act, well within the domain of ordinary civil courts. The impugned judgment passed by the appellate court is accordingly set aside. The matter is remitted to the appellate court for deciding the appeal afresh based on its merits in light of the observations made above.
As a result, the petition succeeds in part. No order as to costs.
(Manoj Kumar Gupta, J.) Order Date :- 30.7.2019 Shashank