Case :- MATTERS UNDER ARTICLE 227 No. - 5239 of 2019 Petitioner :- Kedar Respondent :- Radha Krishna Mahavidyalaya And 2 Others Counsel for Petitioner :- Pramod Kumar Pandey Counsel for Respondent :- Jai Prakash Rai Hon'ble Manoj Kumar Gupta,J.
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 first decide the issue relating to jurisdiction and thereafter, proceed any 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 was 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 (d) of the Explanation of sub-section (1) of Section 7. In the aforesaid backdrop, the above guidelines 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. It is urged that the suit does not involve adjudication of any dispute between spouses nor arising out of any matrimonial relationship. The submission is that the family courts were constituted with the object of settlement of family disputes and not of the nature, as has been raised in the suit in question.
On the other hand, learned counsel for the respondents submitted that since the main issue involved is whether the defendant No.3 is son of Bhairam and therefore, the said issue would fall squarely under Clause (d) of Explanation of sub-section (1) of Section 7 of the Family Courts Act.
Before proceeding to consider the submissions, it would be fruitful to note the plaint case. The suit was instituted by the plaintiff-petitioner with the allegation that the suit property belong to his ancestors 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. The third son is Rajdev. It is alleged that Mangala, defendant No.3 is son of Vishwanath. According to the plaint assertions, Vishwanath was resident of a different village. He had no connection with the family of the plaintiff and his ancestors. Defendant No.2 wrongly 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-respondents, claiming 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 and that 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 its 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 no. In case it is held that he is son of Bhairam, the basis of the plaint for cancellation of the sale deed would stand demolished. On the other hand, if it is proved that he is son of Vishwanath, then definitely the execution of the sale deed by him claiming himself to be co-sharer would not be legally sustainable.
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 in a suit of civil nature, notwithstanding that such right to defend entitle on the decision of question as to religious rights or to said jurisdiction of the civil court to .... a suit involving Right to Property is thus of pervasive subject to any exception expressly or impliedly provided under any statute or law in force. The Family Courts Act, 1984 was enacted by the Parliament to provide for the entitlement of family courts with a view to promote conciliation any, and secure speedy settlement of disputes relating to marriages and family affairs and 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 or procedure inhabited should be eliminated but exclusively, one of the object of the bill 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, laid down the jurisdiction of a Family Court and which 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 explicitly enumerates the proceedings which are guided by family court. It interalia provides that a suit for proceeding or for an order of injunction in circumstances arising within matrimonial relationship for a suit or proceedings of Declaration Act, legitimacy of any person is in the exclusive domain of family court indisputably. There is no dispute regarding the legitimacy of the defendant as son of Bhairam but rather the case of the plaintiff is that he is son of Vishwanath, who has no connection with the family of the plaintiff. The fresh matrimonial relationship used in Clause D of the explanation of sub-section 1 would mean the relationship arising out of marriage between two persons and suits or proceedings arising out of that relationship. If it is not taken within ambit and inclueds as to whether a person is son of X and Y which alleged not to be connected in any manner with each other. The sign for non application of Clause (d) is a matter arising out of matrimonial relationship which is missing in the said case. It is in the not the case of any of the parties that defendant No. 3 was illegitimate son of Bhairam but on the other hand, as noted above, the specific case is that he was son of a person wholly not connected with the family of the plaintiff thus in considered opinion of the court, issue of such a nature could not fall within domain of family court and consequently, the view taken by the appellate court is manifestly illegal. The impugned judgment passed by the appellate court is accordingly set aside. The matter is abated for trial. The appeallate court for sending the appeal afresh based on its merits in the light of the observations made.
(Manoj Kumar Gupta, J.) Order Date :- 30.7.2019 Shashank (Manoj Kumar Gupta, J.) Order Date :- 30.7.2019 Shashank