Madras High Court
Udhayabhanu vs Ranganayaki on 30 January, 2009
Equivalent citations: AIR 2009 MADRAS 91, 2009 (3) ALL LJ NOC 583, 2009 (1) AIR JHAR R 353, 2009 (3) AKAR (NOC) 495 (MAD), 2009 A I H C (NOC) 547 (MAD), (2009) 2 MARRILJ 577, (2009) MATLR 407, (2009) 6 MAD LJ 1108, (2009) 2 MAD LW 631
Author: S. Palanivelu
Bench: S. Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.01.2009 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU C.R.P.NPD.No.2794 of 2007 and M.P.No.3 of 2007 Udhayabhanu ... Petitioner Vs 1. Ranganayaki 2. S.N.Palanisamy ... Respondents Civil Revision Petition has been filed to set aside the fair and final order passed in H.A.M.O.P.No.443 of 2005, dated 26.09.2005, on the file of the Family Court, Coimbatore and to allow the above C.R.P. * * * For Petitioner : Mr. Veerakathiravan For Respondents : Mr.Rajaraman O R D E R
The Civil Revision Petition has been filed to set aside the fair and final order passed in H.A.M.O.P.No.443 of 2005, dated 26.09.2005, on the file of the Family Court, Coimbatore and to allow the above Civil Revision Petition.
2. The following are the allegations in brief found in the petition filed by the 2nd respondent :
Both the petitioners are husband and wife. Their marriage was held on 25.08.1952. They had no children. The Respondent is the sister's husband of the 2nd petitioner. His wife is Pushpavalli. Their marriage took place in 1968. They have three daughters. Among them, the first daughter is one Vijaya. She was born on 13.03.1970. The 2nd and 3rd children Maheswari and Sarada are living with their parents. Pushpavalli died on 27.9.1994. The petitioners decided to adopt the said Vijaya for which the respondent agreed. On 5.7.1970, the adoption took place. It was not for any consideration. The petitioners got the capacity to take Vijaya in adoption and in turn, she was also capable of being taken to adoption. The parties are Hindus. The custom and usage furnished in the petitioners to take the child in adoption. The adoptive parents do not have any progenies. As per the Hindu Customs, rites and rituals, a 'Homam' was performed for taking Vijaya in adoption. On 2.6.1997, the adoption deed was registered in Gandhipuram Sub-Registrar Office at Coimbatore. Since the adoption of Vijaya by this petitioners has to be regularised, this petition has been filed.
3. The respondent remained ex-parte before the Family Court. Both the petitioners were examined as P.W.1 and P.W.2. The Adoption Deed, dated 2.6.1997, was also marked. The learned Judge of the Family Court, Coimbatore has adverted to the facts of the case and finally concluded that the petitioners are entitled for the relief of regularisation of the adoption as pleaded in the petition.
4. The learned counsel for the petitioner would submit that the petitioner being one among the legal heirs of the propositus Ramasamy Naicker, she is entitled to question the adoption allegedly undertaken place by the petitioners, even though, she is not a party to the proceedings before the Family Court. It is his further contention that suppressing the material facts projecting false claims and in order to gain wrongfully, the petitioners approached the wrong forum, namely, the Family Court, instead of putting forth their request for relief before the competent civil court.
5. Conversely, Mr.T.R.Rajaram, learned counsel for the respondents 1 and 2 would submit that the present petitioner has no locus standi to file this application and she is in no way prejudiced by the adoption and the relief accorded by the Family Court, is legally sustainable.
6. It is the bottom-line contention of the petitioner that the Family Court is not competent to deal with the issue. It is also argued that Rangasamy was no more on the date of passing the order of the Family Court on 26.09.2005, since he breathed his last on 10.09.2005 itself. Hence, it is stated that the order passed by the Family Court is a nullity, having no legal force. In order to find out whether the Family Court has got jurisdiction to deal with the affairs relating to adoption, Section 7 of the Family Courts Act, 1984,(in short Act) has to be gone through, which reads as follows:
Section 7: Jurisdiction-(1) Subject to the other provisions of this Act, a Family Court shall
(a) have and exercise all the jurisdiction execrable 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 purpose 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 proceedings 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 proceedings for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceedings between the parties to a marriage with respect to the property of the parties of either of them;
(d) a suit or proceedings for an order or injunction in circumstances arising out a marital relationship.
(e) a suit or proceedings for a declaration as to the legitimacy of any person;
(f) a suit or proceedings for maintenance;
(g) a suit or proceedings 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) a jurisdiction execrable 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 may be conferred on it by any other enactment.
7. When the above said provisions are scrutinised, it comes to light that the Family Court shall have the jurisdiction to decide the matters enlisted under the Explanation to Section 7. All of the above said categories of proceedings are relatable to matrimonial affairs and apart from other categories, the Family Court will have no jurisdiction. The area covered by explanation to Section 7 does not provide for dealing with the matter of adoption. In case, if a Family Court is conferred with any other jurisdiction by the authority concerned under Section 7(2)(b) of the Act, then it may deal with said subject for which it was duly conferred with powers. But, there is nothing to show that the Family Court has been conferred with powers to take up the matters concerning adoption. The primary object of constitution of the Family Court Act is to bring about cordial and amicable settlement in respect of matrimonial disputes. Those should be adjudicated in a congenial atmosphere in a court specially constituted for the purpose. While the provisions of the Act are for the purpose of settling the issues with regard to guardianship of a person or access to any minor, that is also for the purpose of declaration as to the legitimacy of any person, there is no indication as regards the adoption. In short, the concept of adoption could not be brought within the purview of the Act.
8. Any disputes with regard to the adoption and the declaration respecting any aspect touching adoption could be settled only by the competent court of civil jurisdiction, which is certainly not a Family Court. Hence, it is held that the Family Court has no jurisdiction to deal with the matters pertaining to the provisions under the Hindu Adoptions and Maintenance Act, 1956.
9. The family properties originally belonged to one Ramasamy Naicker, who had two sons by name Rangasamy Naicker and Gopal. Ranganayaki is the wife of Rangasamy Naicker. He died on 19.09.2005. Saradha was wife of Gopal and both of them are no more. Their daughter is Udaya Banu and son is one Devarajulu. Devarajulu died. The remaining heirs to Ramasamy Naicker are Ranganayaki and Udaya Banu alone, each represents their respective branch. Hence, only one heir available in each of the branch. They have stated that both the petitioners took Vijaya in adoption and even though in case, if the adoption is valid, by means of which the petitioner would not get prejudiced. Whatever share she is legally eligible will come to her and the share available to the other branch will come to Ranganayaki. In this circumstances, a question arises in what way the petitioner is prejudiced with the adoption.
10. The learned counsel appearing for the petitioner would answer this question by stating that by exercising power under Article 227 of the Constitution of India, this Court can interfere with the jurisdiction wrongly exercised by the court below in the interest of justice. It is his further contention that a person aggrieved need not have been affected directly by the proceedings of the court and if anybody else is felt prejudiced by the wrong exercise of the jurisdiction by a court, he may approach this Court.
11. He cites decision of a Division Bench of Karnataka High Court in AIR 1991 Karnataka 6 Canara Bank Relief and Welfare Society and others in which it is observed that the Family Court is no jurisdiction to deal with the matters coming under the Hindu Adoption and Maintenance Act. The operative portion of the said judgment goes thus :
"As none of the matters categorised in clauses (a) to (g) of the explanation to sub-section (1) of S.7 of the Family Courts Act or in clauses (a) and (b) of sub-s.(2) thereof can be regarded as a matter relating to grant of previous permission to give a child in adoption by its guardian envisaged in sub-s.(4) of S.9 of the Act, it has to be inevitably held that the manner respecting which applications were made in the Miscellaneous Cases before the Court of City Civil Judge under sub-s(4) of S.9 of the Act, is not a matter falling within the jurisdiction of the Family Court, respecting which it can exercise jurisdiction under S.7 of the Family Courts Act."
12. The Court is of the opinion that it can interfere with an order passed by a Court, which has patently usurped the jurisdiction exercisable by any other court and there is no impediment to interfere with the same, if the courts, subordinate to the High Court are allowed to transgress their powers by touching the subjects, which are not ear marked for them, the justice will not be rendered to the needy persons. Under supervisory jurisdiction, the High Court has got every power to correct the orders and decisions of the courts below, which are passed without jurisdiction, particularly when they are not specifically conferred with power to try a particular subject.
13. A report was called for from the Principal District Judge, Coimbatore, as to whether the Family Court in Coimbatore has been conferred with any powers to try the matters falling under the provisions of the Hindu Adoption and Maintenance Act, for which he has replied that no such powers have been conferred on the Family Court, Coimbatore, to try such matters. When there is no specific powers conferred on the Family Court, Coimbatore to try the matters relating to adoption, it has no jurisdiction to entertain any claim in this regard and the order passed by the said Court without jurisdiction is non-est in the eye of law.
14. In these circumstances, this Court is of the considered view that the powers exercised by the Family Court, Coimbatore in the matter of adoption is not in accordance with law and this Court has to set aside the orders passed by it and the order impugned is set aside. The petition deserves to be allowed.
15. In fine, the Civil Revision Petition is allowed, setting aside the order passed by the learned Judge, Family Court, Coimbatore in HAMOP.No.443/2005 dated 26.09.2005. Consequently, connected Miscellaneous Petition is closed. No costs.
30.01.2009
Index : Yes
Internet : Yes
tsi/ggs
To
The Judge,
Family Court,
Coimbatore.
S. PALANIVELU,J.
tsi/ggs
Order in :
C.R.P.NPD.No.2794 of 2007
30.01.2009