Heard learned Counsel for the applicant.
This transfer application has come to be filed in peculiar circumstances. The applicant no. 1 is the daughter of applicant no. 2. The applicants have filed a civil suit for cancellation of marriage certificate issued by the Deputy Registrar / Registrar, Hindu Marriage, Mahmoodabad, Sitapur which appears to have been issued in favour of the respondent no. 2 certifying the applicant no. 1 to be a legally wedded wife of respondent no. 2 herein. This transfer application seeks transfer of the above suit filed by the applicants from Civil Judge (S.D.) Sitapur to the court of competent jurisdiction at Lucknow.
The case set up by the applicants before the Civil Judge (S.D.) Sitapur is to the effect that the applicant no. 1 was never married to respondent no. 2 but has been rather married to one Vipin Kumar Chandra who is a different person. The respondent no. 2 is alleged to have obtained a fictitious and fraudulent marriage certificate on the basis of which the applicants are being black mailed and harassed.
The civil proceedings instituted before the Civil Judge (S.D.) Sitapur after exchange of pleadings between the parties reached the stage of framing of issues on 29.07.2015 when issue nos. 1 to 5 were drawn. Issue no. 2 was decided on the same date which related to the accrual of cause of action. Issue nos. 3 and 4 regarding valuation and payment of court fee were decided by order dated 12.08.2015 in favour of the applicants.
At the stage, when evidence was to be led by the parties on other issues, an application under Order 7 Rule 11 has been filed by respondent no. 2 raising an objection against the maintainability of proceedings before the Civil Court, inasmuch as, the dispute being matrimonial in nature, therefore, it would be amenable to the jurisdiction of Family Court is the objection raised by respondent no. 2 (disputed husband).
The question that immediately crops up for consideration is as to whether the proceedings for cancellation of marriage certificate which is in the nature of a matrimonial dispute would at all be maintainable before the Civil Court under Section 9 of the Code of Civil Procedure or the same would lie within the domain of Family Court which exercises jurisdiction under the Family Court Act, 1984.
It is well settled that the jurisdiction of the civil courts conferred under Section 9 of the Code of Civil Procedure can be exercised unless it is expressly or impliedly barred. The jurisdiction of Family Court is defined under Section 7 of the Family Court Act, 1984 which is extracted below:-
"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 subsection are suits and proceedings of the following nature, namely:
a. a suit or proceeding between the parties to a marriage for decree of a nullity 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."
This Court having regard to the domain of jurisdiction defined under the aforesaid provision does find that though the provision quoted above is not exhaustive yet the same provides for carving out jurisdiction of the Family Courts in the matters of all matrimonial disputes.
The instant case for declaring a marriage certificate issued by the Deputy Registrar as invalid by its very nature is a matrimonial dispute which in my opinion would lie within the encompass of explanation provided under Section 7 of the Family Court Act, 1984. Therefore, while upholding the objection in favour of respondent no. 2, this Court proceeds to deal with the transfer application.
In so far as the transfer of the civil suit from District Sitapur in terms of the prayer made in the present application is concerned, the same would require a notice to be issued to the respondent no. 2 in view of the provisions of Section 24 of Code of Civil Procedure but having taken notice of the peculiar issue where applicant no. 1 denies to be the legally wedded wife of respondent no. 2 and having regard to the alleged conduct of respondent no. 2, issuance of notice to respondent no. 2 is hereby dispensed with.
Although the civil suit is instituted by the applicants themselves before the Civil Judge (S.D.) Sitapur and any indulgence by this Court under Section 24 of the C.P.C. and that too at the stage when the suit proceedings are at the stage of evidence may not be in the fitness of things but looking to the peculiar facts and circumstances of the case where the applicant no. 1 claims herself to be married to a different person and the respondent no. 2 being denied to be the lawful husband coupled with other allegations made in this application, it is desirable to invoke the jurisdiction vested in this Court under Section 24 of the Code of Civil Procedure.
In the interest of justice, the proceedings of civil suit no. 521 of 2014 are accordingly transferred from Civil Judge (S.D.) Sitapur to the Family Court, Lucknow where the case shall be registered and tried. The applicants shall file a copy of this order before the Civil Judge (S.D.) District Sitapur within two weeks who shall forthwith pass necessary order for transfer of the paper book with due notice to respondent no. 2 and the parties shall accordingly appear before the Family Court, Lucknow to co-operate with the proceedings. It is also clarified that the proceedings are maintainable at the instance of applicant no. 1 and her father having no locus to contest the case may be deleted from the array of plaintiffs, however, he may be allowed pairvi only.
Accordingly, the transfer application is hereby allowed. The necessary steps for transfer of the proceedings with due notice to the parties shall be carried out not later than one month from today. In case, there be any grievance to the respondent no. 2 against this order, it is open for him to seek an opportunity of hearing by filing an application for re-call.
It is further directed that the Family Court, Lucknow shall make an earnest endeavour to decide the suit proceedings expeditiously and preferably within a period of one year from the date a certified copy of this order is filed before the Court concerned.
Order Date :- 18.4.2016 I.A. Siddiqui