Bombay High Court
Kanak Vinod Mehta vs Vinod Dulerai Mehta on 17 July, 1990
Equivalent citations: 1991(1)BOMCR69
JUDGMENT A.A. Cazi, J.
1. The Plaintiff is the wife of the defendant. The reliefs which she has asked for in this suit are :-
(a) that this Hon'ble Court be pleased to declare that the plaintiff is entitled to an undivided right title and interest in the said matrimonial home being Unit No. 4, in Chancellor Court, Carmichael Road, Bombay-400 026 and that the plaintiff is entitled to reside therein without any let or hindrance from any quarter Whatsoever :
(b) that this Hon'ble Court be pleased to declare that the plaintiff is entitled to the maintenance of the Rs. 17,000/- per month form the defendant for the maintenance of the plaintiff and their son Harshraj over and above the other expenses such as flat and lift maintenance charges, telephone bills including, superphone STD and trunk charges, electricity charges, and a chauffer driven car and the expenses pertaining to the maintenance and repairs of the car, petrol bills, insurance charges, taxes, salary of the driver etc. Which were previously being paid by the defendant directly;
(c) that this Hon'ble Court be pleased to issue a permanent order of injunction restraining the defendant, his family members, servants and agents from in any manner dealing with or disposing of or parting with possession of his right , title and interest in the matrimonial home being Unit No. 4 of chancellor Court situate at Charmichael Road, Bombay 400 026 and /or from in any manner inducting any third person into the said premises and or from in any manner interfering with or disturbing the plaintiff's right, title and interest and use and occupation of the said premises;
(d) that this Hon'ble Court be pleased to order and decree the defendant to pay a sum of Rs. 17,000/- per month to the plaintiff being the maintenance charges of the plaintiff and her son Harshraj over and above the other expenses such as flat and lift maintenance charges, electricity charges, telephone charges including superphone STD and trunk charges, and a chauffer driven car and the expenses pertaining to the maintenance and repairs of the car, petrol bills, insurance charges, taxes, salary of the driver etc. Which were being paid by the defendant directly ;
(e) that this Hon'ble Court be pleased to order and decree that the defendant to hand over to the plaintiff insurance policies, books of account, cheque books, counter-foils of cheque books, income -tax and wealth-tax returns, shares of Ficom Organic Ltd., the reliance Industries Ltd. etc. In the body of the plaint the plaintiff has referred to Unit No. 4 in Chancellor Court, Carmichael Road, Bombay-400 026 as her matrimonial home. She has further averred as follows:
"She was married to the defendant on 26th February, 1970 according to Hindu rites. On 15th February, 1973 there was a son born from this marriage, who is named Harshraj. In April 1987, the defendant's father, i.e. the plaintiff's father -in-law took a Power of attorney from the plaintiff. In January/February 1988 the defendant become aggressive and started treating the plaintiff in a rude manner. On 22nd February, 1988 the plaintiff was deprived of the use of the motor car, telephone and servant and the defendant started to engage detectives to shadow the plaintiff. There was acrimonious correspondence carried on between the parties from 17th March, 1988 to 30th November, 1988. The defendant has stopped paying for the household expenses to the plaintiff. He has openly stated that he would try to drive the plaintiff and Harshraj to the street. The household bills of March 1988 amounting to Rs. 15,000/- have remained unpaid. The plaintiff's matrimonial home is in Bombay. The defendant stays in Bombay. The cause of action has arisen in Bombay. For the purposes of Court fees and jurisdiction the plaintiff values her claim in prayers (a), (c) and (e) at Rs. 300/- each and prayer (b) and (d) at Rs. 2,04,000/- being the value of the annual maintenance. With these averments the plaintiff has asked for the reliefs, as stated above, and filed this suit in this Court".
2. On behalf of the defendant it is urged that it is the Family Court which has jurisdiction in respect of this suit by virtue of the provisions of section 7 of the Family Courts Act, 1984 and, therefore, on the establishment of the Family Court this Court has ceased to have jurisdiction in respect of this suit as provided in section 8 of the Family Courts Act, 1984. In view of this submission made on behalf of the defendant a preliminary issue on jurisdiction arises and the same is as follows :
"Whether, on the plaint as it stands, it is the Family Court which has the jurisdiction in respect of this suit by virtue of the provisions of section 7 of the Family courts Act and therefore, on the establishment of the Family Court this Court has ceased to have jurisdiction in respect of this suit by virtue of clause (a) of section 8 of the Family Courts Act and the suit stands transferred to such Family Court by virtue of clause (c) of section 8 of the Family Courts Act."
3. The relevant provisions of the Family Courts Act, 1984 are sections 7 and 8 and it would be useful to reproduce them here as follows :
"Section 7. (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 or 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 martial 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; and
(b) such other jurisdiction as may be conferred on it by any other enactment.
Section 8. Where a Family Court has been established for any area :
(a) no District Court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
(b) no Magistrate shall, in relation to such are, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973;
(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 ;
(i) which is pending immediately before the establishment of such Family Court before any District Court or subordinate Court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established.
Shall stand transferred to such Family Court on the date on which it is established."
4. It will be noticed that two conditions are required for the Family Court to have jurisdiction viz., (i) the suit or proceeding should be of the nature referred to in the Explanation to sub-section (1) of section 7, and (ii) the jurisdiction in respect or the suits and proceedings of the nature as aforesaid must be "exercisable by any District Court or any subordinate Civil Court under any law for the time being in force". If these two conditions are fulfilled then only the Family Court has jurisdiction and then it is the Family Court which shall, under clause (b) of sub-section (1) of section 7, be deemed "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". In other words in the matters referred to in the Explanation to sub-section (1) of section 7, the Family Court steps in where otherwise the district Court or any subordinate Civil Court would step in.
5. Mr. Simen urged that this Court is a "District Court", as contemplated by section 7 of the Family Courts Act. He drew my attention to section 2 of the Family Courts Act where certain words and expressions are defined and where, in clause (e) thereof, it is stated "all other words and expressions used but not defend in this Act and defined in the Code of Civil Procedure, 1908 shall have the meanings respectively assigned to them in that Code". Mr. Simen then drew my attention to item (4) of the terms defined in section 2 of the Code of Civil Procedure, 1908 which item (4) reads as follows :
"(4) "district" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"); and includes the local limits of the ordinary civil jurisdiction of a High Court".
According to Mr. Simen under this definition the High Court must be held to be a District Court for the purposes of the Code of Civil Procedure, 1908. Mr. Simen drew my attention to Mulla's Hindu Law, 15th Edition at page 729 where in the commentay it is stated that following the definition of the expression "district" in section 2(4) of the Civil Procedure Code the expression "District Court" as defined in section 3 of the Hindu Marriage Act must be understood to include a High Court in the exercise of its ordinary original civil jurisdiction. The authority for this statement is Kedarnath Mandal v. Ganesh Chandra Adak, (1908) 12 Cal.W.N. 446.
6. Now this very argument was advanced before the Full Bench of the Madras High Court in Mary Thomas v. K.E. Thomas and T.K. Chadrasekar v. Margaret and another, and it was rejected by that Court. The facts in Mary Thomas' case were similar to the facts in our case and those were as follows : There a civil suit bearing Civil Suit Diary No. 20871 of 1988 was filed by the wife against her husband for a permanent injunction restrain in g the husband from interfering with her possession and enjoyment of certain property, for a declaration that the power of attorney executed by her in favour of her husband was unenforceable, for accounts in respect of certain items specified there and for return of certain documents specified there. The suit was filed in the High Court at Madras. It came up before a Single Judge, Justice Abdul Hadi. On 24th November, 1988 Justice Abdul Hadi passed an order that the suit be returned for presentation before the Family Court. According to him the expression 'District Court' in section 7 of the Family courts Act includes of the Family Courts Act. The matter then went in appeal before the Full Bench. In fact, the Full Bench was specially constituted not only because of the decision Justice Abdul Hadi but also because of two other decisions given by the Madras High Court (1) the decision in Minor Rekba, (1989) 103 Madras L.W. 241 which was again decision of Justice Abdul Hade, and (2) the decision in Patrick Martin and Mrs. Regine Martin, which was a decision of a division Bench. The question formulated there was whether after the constitution of the Family Court for the Madras area the original jurisdiction of the High Court in respect of matters that may fall under the Explanation to section 7 of the Act is ousted or not. That question was answered in the negative. In order to answer that questioned the Full Bench was required to consider whether the High Court was a 'District Court" referred to in section 7 of the Family Courts Act and it negatived this contention. Even the decision in Kedernath Modals's case was considered and explained in Mary Thomas case. Most of the points urged by Mr. Simen in support of his submission on the preliminary issue were urged before the Madras High Court in Mary Thomas case and were negatived. Therefore, I will not repeat those arguments here and I will deal only with those points which have not been dealt with by the Madras High Court.
7. As regard Mr. Simen's reference of items (4) of section 2 of the Code of Civil Procedures it may be pointed out that what is defined in the said item (4) is the word "district". In the Civil Procedure Code there is no definition of "District Court" or 'Subordinate Court" of "High Court" or "Supreme Court" except to say that "High Court" in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta. This would indicate that the legislature did not think it necessary to give any definition of the various courts referred to. Yet reference is made in the Code of Civil Procedure to all these various courts. In section 3 thereof it says ; "For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of District Court and even Court of Small Causes is subordinate to the High Court and District Court". Surely the High court cannot be held to be a district Court for the purposes of the Code of Civil Procedure. All the various courts are established under different legal enactment. The Bombay Civil Courts Act, 1869 says that there shall be in each district a District Court. Section 7 thereof reads : "The District Court shall be the principal court of original civil jurisdiction in the district, within the meaning of the Code of Civil Procedure". It is therefore, clear that the District Court established under section 5 of the Bombay Civil Courts Act is the "District Court" referred to in the said item (4) of section 2 of the Code of Civil Procedure. This High Court is not established under any provision of the Bombay Civil courts Act. My reading of the said item (4) is that the original jurisdiction area of a High Court is a "district" and even the original jurisdiction area of a High Court is a "district". This does not mean that the High Court is a District Court.
8. Mr. Simen urged that the Family Courts Act is an All India Legislation and means for all communities and it is a special law for the subject which it covers and, therefore the general law under which this High Court exercises jurisdiction would have to be considered to have been repealed to that extent. Now, it is true that where there is a conflict between the general law and the special law then the special law prevails. But in this case I do not find such a conflict between the special law and law under which this High Court is exercising jurisdiction.
9. Mr. Simen further argued that in order to avoid multiplicity of litigation it should be held that jurisdiction to entertain this matter reset with the Family Court as the defendants has already filed a petition for divorce which is now pending in the Family Court, and that petition for divorce is on the ground of cruelty, desertion and adultery and all these questions will have to be decided here also. Now, we are considering a jurisdictional point which is purely a question of law. If that does not support the argument of Mr. Simen, I cannot, for the purpose of avoiding multiplicity of litigation in this one case, decide the case as Mr. Simen wants me to decide.
10. The next point urged by Mr. Simen is that for the purpose of giving harmonious construction to the Family Courts Act and to give full rationale to the Family courts Act, the proper construction would be to include the High Court within the meaning of "District Court" or "Subordinate Civil Court". Mr. Simen urged that the Legislature was aware that the High Court was exercising jurisdiction specially under the Indian Divorce Act and the Parse Matrimonial Act and, therefore, when it meant to bring about a separate Court for matrimonial disputes it must have been the intention of the Legislature to bring all these matters also within the jurisdiction of the Family Court. Now where the Legislature has used express terms which are clear, there is no question of giving an interpretation different from that which is unambiguous. In fact there will be disharmony if the High Court is included within the expression "District Court" used in section 7 of the Family Courts Act. Under section 19 of the Family Courts Act, from a judgement or order of a Family Court an appeal lies to "the High Court".
11. Mr. Simen's argument that this High Court is the one referred to in section 7 of the Family courts Act as "subordinate Civil Court" was on the same lines as his argument that the High Court is a 'District Court" and for the same reasons it must be rejected. I may point out that as the Bombay Civil Courts Act establishes District Courts so also it establishes subordinate Civil Courts and the District Court is the Court of Appeal from decrees and orders passed by the "Subordinate Courts" (see section 8 of the Bombay Civil Courts Act).
12. I am in full agreement with the decision given by the Full Bench of the Madras High Court in Mary Thomas' case. However there is a decision of Justice Chaudhari of our Court given in a Suit No. 199 of 1989 which decision was delivered in the first week of March 1990 and that is in conflict with the decision given in Mary Thomas case. I may point out here that the decision given in Mary Thomas' case was not pointed out to justice Chaudhari. Justice Chaudhari took support to a large extent from the decision in the matter of Patrick Martin and another , Kamal V.M. Allaudin v. Raja Shaikh, 1990(2) Bom.C.R. 335, which has been specifically overruled by the Full Bench decision given in Mary Thomas' case. However, since there is decision of Justice Chaudhari which is in conflict with the decision of the Madras High Court given in Mary Thomas' case which I am inclined to follow, I consider it proper that this question should be referred to a larger Bench of this Court for decision. Hence, I pass the following order :
ORDER The matter be placed before the Hon'ble Chief Justice for constituting a suitable bench for deciding the question which has been framed as a preliminary issue mentioned above.