Delhi High Court
Harjyot Singh vs Manpreet Kaur on 18 November, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th November, 2019.
+ CS(OS) 444/2019
HARJYOT SINGH ..... Plaintiff
Through: Mr. Amit Gupta and Ms. Mansi
Kukreja, Advs.
Versus
MANPREET KAUR ..... Defendant
Through: Mr. Hrishikesh Baruah and Ms.
Radhika Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.15976/2019 (of the defendant u/O VII R-11 CPC).
1. The counsel for the plaintiff has fairly stated that no reply is required
and the application can be heard today itself. The counsel for the plaintiff
and the counsel for the applicant/defendant have been heard.
2. The plaintiff has instituted this suit, for (i) permanent injunction to
restrain the applicant/defendant from publishing / sending / circulating /
posting / propagating any kind of abusive or threatening or intimidating or
defamatory content in any manner whatsoever, either by print or
electronically, to the plaintiff or to the plaintiff‟s relatives, friends, staff,
colleagues and their spouses as well as other residents of Saket Court
Residential Complex; (ii) for permanent injunction to restrain the
applicant/defendant from visiting the workplace of the plaintiff and from
entering the Court room and chamber of the plaintiff and all other places
where the plaintiff has to be present in discharge of his official duties; (iii)
CS(OS) 444/2019 Page 1 of 20
for mandatory injunction directing the applicant/defendant to
unconditionally apologise to the plaintiff; and, (iv) for recovery of damages
in the sum of Rs.2,00,00,001/-.
3. The applicant/defendant is the wife of the plaintiff and the parties are
Hindus by religion. For the purpose of the present application, need to detail
the facts constituting the cause of action for the suit is not felt.
4. The applicant/defendant, by this application seeks rejection of the
plaint on the ground of the suit, from the statements and averments in the
plaint, being barred by law i.e. under Section 4 of the Hindu Marriage Act,
1955 and Section 7 read with Section 20 of the Family Courts Act, 1984.
5. It is the plea of the applicant/defendant, (a) that the Hindu Marriage
Act creates special rights (not existing previously) and provides for a
machinery for their enforcement; therefore the Civil Courts jurisdiction over
these matters is specifically barred; (b) that Section 4 of the Hindu Marriage
Act is as under:-
"4. Overriding effect of Act - Save as otherwise expressly
provided in this Act-
(a) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force immediately
before the commencement of this Act shall cease to have
effect with respect to any matter for which provision is made
in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to have effect in so
far as it is inconsistent with any of the provisions contained
in this Act.";
CS(OS) 444/2019 Page 2 of 20
(c) that a close scrutiny of the averments in the plaint would show that in
reality the factual assertions therein are of cruelty, desertion or unacceptable
behaviour, which constitute grounds for seeking judicial separation or
divorce; if the prayers in the suit are granted after trial, then they would be
deemed binding - at least in personam, in between parties and the plaintiff
husband would then have no difficulty claiming the relief of his choice
under the Hindu Marriage Act as the defendant would be bound by the
principles of res judicata etc. on the factual aspects; this tactic of getting
around the provisions of Hindu Marriage Act cannot be permitted; (d) that
the parliamentary intention in enacting the Hindu Marriage Act was to
codify the existing rights and to create new ones; the entire bundle of rights
and obligations relating to marriage, recourse to marital discord and offences
etc. has to be dealt with under the Hindu Marriage Act and not in a Civil
Court; the suit is barred by Section 4 supra; (e) that the jurisdiction of the
Civil Court is also impliedly barred by Section 7 of the Family Courts Act
which is as under:-
"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.
CS(OS) 444/2019 Page 3 of 20
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.";
CS(OS) 444/2019 Page 4 of 20
and, (f) that Section 20 of the Family Courts Act provides that the provisions
of the Family Courts shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.
6. The counsel for the applicant/defendant has placed reliance on
Vidyanidhi Dalmia Vs. Nilanjana Dalmia 150 (2008) DLT 19 wherein this
Court therein was concerned with a suit filed by a husband against his wife,
for permanent injunction to restrain the wife (a) from entering into or
approaching within 100 metres of husband‟s residence and from speaking to
or approaching the plaintiff‟s staff; (b) from speaking with or addressing any
written communication to the personnel associated with the plaintiff‟s
companies, on any issue relating to the companies; (c) from addressing
communications to the personnel associated with the plaintiff‟s companies;
(d) from addressing any communication(s) to the plaintiff‟s family members,
relatives, friends, which are abusive to the plaintiff and which cast
aspersions on his character and from approaching them; (e) from entering,
attending or disrupting any social/private gathering hosted by the plaintiff in
public or private place; and, (f) from creating any third party interest in
immovable/movable properties.
7. The reasoning which prevailed with the Court, in Vidyanidhi Dalmia
supra, in rejecting the plaint with the said reliefs was, (i) that Section 4 of the
Hindu Marriage Act gives an overriding effect to the Hindu Marriage Act;
therefore unless in any other enactment there is a provision which abrogates
or amends those of the Hindu Marriage Act or repeals the provisions of the
Hindu Marriage Act, the provisions of the Hindu Marriage Act alone would
be applicable to matters dealt with or covered by the same; (ii) Sections 9 &
CS(OS) 444/2019 Page 5 of 20
10 of the Hindu Marriage Act provide for restitution of conjugal rights and
Section 13 lists grounds for dissolution of marriage by a decree of divorce;
though the releifs claimed by the plaintiff in the suit were seemingly
different from the remedies available under Hindu Marriage Act, a closer
scrutiny of the plaint and the averments therein showed that in reality they
are all factual assertions of cruelty or unacceptable behavior which
constitute grounds for seeking judicial separation or divorce; if granted after
a trial, they would be deemed binding- at least in personem, inter parties; the
plaintiff husband would then have no difficulty claiming the relief of his
choice under the Hindu Marriage Act, as the defendant would be bound by
principles of res judicata as well as issue estoppel on the factual aspects;
(iii) this circumlocutory manner of getting around the provisions of the
Hindu Marriage Act, with its regime of special rights, special obligations, on
spouses, and special responsibility on the Courts constituted under it, was
never envisioned; (iv) the Parliamentary intention, while enacting Hindu
Marriage Act was to codify whatever were existing rights, and create new
ones, with the objective of enforcing them through a special mechanism; (v)
the entire bundle of mutual rights and obligations relating to marriage,
treatment of marital discord and offences and the remedies, is to be dealt
with under the Hindu Marriage Act; so viewed, there is no basis for the
assertion of the plaintiff that he has a special zone of privacy, outside of the
Act, which can form the basis of the reliefs claimed in the suit; (vi) if the
injunctive relief claimed is granted, it would practically amount to decreeing
judicial separation of the parties without the observance of requisite
standards mandated by law; (vii) public policy considerations weighed
against the plaintiff's claim for privacy against his wife; the Protection of
CS(OS) 444/2019 Page 6 of 20
Women from Domestic Violence Act, 2005 by Section 17 thereof conferred
the women with a right to reside in a shared household; and, (viii) there is no
valid legal basis for the claims for injunction sought by the plaintiff; he
cannot therefore assert an actionable cause in the Civil Court; whatever be
his remedies under the Hindu Marriage Act.
8. The counsel for the applicant/defendant has further contended that
now in any case Section 7 of the Family Courts Act, vide Explanation (d)
therein confers the Family Court with jurisdiction over a suit or proceeding
for an order or injunction in „circumstances arising out of a marital
relationship‟. It is contended that all claims for injunction between husband
and wife are now in the exclusive domain of the Family Court. On enquiry,
about the relief claimed in a suit of recovery of damages it is contended that
Explanation (d) provides for "a suit or a proceeding for an order" not
necessarily by injunction and the said phrase would include an order of
recovery of damages as well.
9. Per contra the counsel for the plaintiff has relied on Samar Kumar
Roy Vs. Jharna Bera (2017) 9 SC 591. The suit therein was under, Section
34 of the Specific Relief Act, 1963 for a declaratory decree, and Section 38
of the Specific Relief Act for perpetual injunction. It was the claim of the
plaintiff therein that, by blackmail and coercion, a show of a marriage
between the plaintiff and defendant was arranged by the defendant‟s father,
by registration of the said marriage under the Special Marriage Act, 1954;
that no essential ceremonies of a Hindu marriage were performed and there
was no consummation of the said marriage thereafter. On the said pleas, a
declaration that the defendant was not the legally married wife of the
CS(OS) 444/2019 Page 7 of 20
plaintiff and of permanent injunction restraining the defendant from
claiming the plaintiff as her husband, disturbing the plaintiff at his office, on
the way of the plaintiff going to office and coming back home, was sought.
The plaintiff died during the pendency of the suit and his mother sought
substitution, which was denied by the High Court. It was the contention of
the mother of the plaintiff before the Supreme Court, that the proceeding
was not a petition for dissolution of marriage but a suit under Specific Relief
Act for declaration of a legal character and which could be continued even
after the death of the plaintiff. The Supreme Court held, (i) that the High
Courts have uniformly taken the view that a suit for declaration of a legal
character filed under Section 34 of the Specific Relief Act can be continued
at the behest of the legal representative of a dead plaintiff; (ii) that a suit for
declaration that there was no marriage solemnised at all, cannot be
considered to be a petition under the Hindu Marriage Act and was merely a
suit for declaration regarding the status of the parties; (iii) that the
circumstances under which a petition can be filed for annulment of marriage
on the ground that the same is void, are clearly specified in the Hindu
Marriage Act; however where a declaration that the marriage is void, has not
been asked for on any of such grounds on which such annulment can be
obtained under Section 12 or even under Section 11 of the Hindu Marriage
Act, the suit remains a suit for declaration as to status of the party; (iv) that a
suit or proceeding between parties to a marriage, for a decree of nullity or
restitution of conjugal rights or judicial separation or dissolution of
marriage, all have reference to suits or petitions that are filed under the
Hindu Marriage Act for the said reliefs; there is no reference whatsoever to
suits that are filed for declaration of a legal character under Section 34 of the
CS(OS) 444/2019 Page 8 of 20
Specific Relief Act; (v) that an exclusion of jurisdiction of the Civil Court is
not to be readily inferred; (vi) that examination of the remedies provided and
the scheme of the Hindu Marriage Act show that the statute creates special
rights or liabilities and provides for determination of rights relating to
marriage; the Act does 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; (vii) that while 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, where the suit is to annul or dissolve a marriage or 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; and, (viii) that the Civil Court‟s jurisdiction to determine the said
legal character is not barred either expressly or impliedly, by any law.
10. I have invited the attention of the counsels also to Manita Khurana
Vs. Indra Khurana AIR 2010 Del 69 and Amina Bharatram Vs. Sumant
Bharatram (2018) 249 DLT 107, where I had an occasion to deal with the
question of jurisdiction of Civil Court after the coming into force of the
Family Courts Act. In Manita Khurana supra, the plaintiff was the mother-
in-law of the defendant wife and had instituted the suit for recovery of
possession and mesne profits. The defendant wife sought transfer of the suit
to the Family Court, citing Sections 7 & 8 of the Family Courts Act. It was
held that (i) the claim of a third party to a marriage, even if mother of one of
the spouses, cannot be adjudicated before the Family Court, the procedure to
be followed by which Court is materially different from the procedure to be
CS(OS) 444/2019 Page 9 of 20
followed by a Civil Court; (ii) merely because certain facts leading to the
cause of action referred to the marital relationship of the defendant with the
son of the plaintiff, would not make the suit as one in circumstances arising
out of marital relationship; (iii) the words "circumstances arising out of
marital relationship" in Explanation (d) of Section 7 of the Family Courts
Act do not qualify the words "suit or proceeding" but qualify words "order
or injunction"; and, (iv) thus, the order of injunction sought from the Court
has to be in circumstances arising out of a marital relationship, for a suit or
proceeding to fall within Explanation (d) to Section 7 of the Family Courts
Act. In Amina Bharatram supra, the wife had sued her husband as well as
father, mother and brother of the husband, for maintenance including
residence and to restrain them from throwing out the plaintiff from the
matrimonial home. The husband objected to the jurisdiction of the Civil
Court, citing Section 8 of the Family Courts Act. The suit was however held
to be falling within the ambit of Explanation (f) to Section 7 of the Family
Courts Act which provides that "a suit or proceeding for maintenance" is a
suit or proceeding over which the Family Court has exclusive jurisdiction
and the jurisdiction of the Civil Court held to be barred.
11. The counsel for the plaintiff contends that my view in Manita
Khurana supra is in favour of the plaintiff.
12. The counsel for the defendant, after conclusion of hearing, has also
sent copies of K.A. Abdul Jaleel Vs. T.A. Shahida (2003) 4 SCC 166, Leby
Issac Vs. Leena M. Ninan AIR 2005 Ker 285, Krishna Moorthy Vs.
Soumya Krishnan AIR 2016 Ker 81, Musthafa Vs. Buhari 2017 SCC
CS(OS) 444/2019 Page 10 of 20
OnLine Ker 15325 and Jasmeet Kaur Vs. Navtej Singh 251 (2018) DLT
233.
13. However, I may notice that the decisive factor in K.A. Abdul Jaleel
supra, was an earlier order in the same proceedings, which was held to
operate as res judicata. The Division Bench of the Kerala High Court in
Leby Issac supra, was concerned with a suit by a husband against the wife
and another for recovery of Rs.10 lacs as compensation and damages on
account of the defendant wife living with the second defendant in adultery.
The suit was held to be within the exclusive domain of the Family Court
under Explanation (d) to Section 7 of the Act. Another Division Bench of
the Kerala High Court in Krishna Moorthy supra was concerned with the
maintainability in the Family Court of a claim for recovery of money
promised to be paid for the marriage. The parties to the proceedings were
not parties to the marriage. The proceeding was held to be maintainable in
the Family Court since the cause of action agitated was based on rights and
obligations which arose out of the marital relationship between one party to
the marriage and the mother of the other party to the marriage. Yet another
Division Bench of the same High Court in Musthafa supra held a
proceeding by a wife against her husband and another to whom the husband
had transferred the property, for recovery of possession of the property,
would be within the domain of the Family Court. Finally, a Co-ordinate
Bench of this Court in Jasmeet Kaur supra held a suit between parties to a
marriage for anti-suit injunction to be within the domain of the Family
Court.
CS(OS) 444/2019 Page 11 of 20
14. I have considered the judgments aforesaid. Needless to state that
none of the judgments had occasion to consider Samar Kumar Roy supra
and the same being a judgment of the Apex Court has to prevail.
15. As far as reliance by the counsel for the defendant on Vidyanidhi
Dalmia supra is concerned, I find the same to be running contrary to the
subsequent dicta of the Supreme Court in Samar Kumar Roy supra and
which approves the earlier judgments of the High Courts of Calcutta in
Krishna Pal Vs. Ashok Kumar Pal 1982 SCC OnLine Cal 120, Tapash
Kumar Moitra Vs. Pratima Roy Chowdhury MANU/WB/0504/1984 and
Sasanka Sekhar Basu Vs. Dipika Roy AIR 1993 Cal 203 holding suits for
declaration under Section 34 of the Specific Relief Act to be maintainable
before the Civil Court and negating the plea of the same being barred by the
provisions of the Hindu Marriage Act and which was not noticed in
Vidyanidhi Dalmia supra. In view of the said subsequent judgments,
Vidyanidhi Dalmia supra cannot be said to be a binding precedent on the
undersigned. Not only so, Vidyanidhi Dalmia supra does not notice (a) that
the Hindu Marriage Act made no provision for the grant of reliefs as were
claimed in Vidyanidhi Dalmia supra; Section 4 of the Hindu Marriage Act
cannot be considered as negating the inherent civil rights of parties to the
marriage against each other and confining the rights of the parties to the
marriage against each other only to those provided under the Act; (b) that till
the coming into force of the Family Courts Act, a proceeding under Hindu
Marriage Act also used to lie before the Civil Court only before which a
civil suit asserting rights other than those provided for under the Hindu
Marriage Act, albeit against a party to the marriage, were asserted; and, (c)
that the finding, even if any, in a trial for grant of reliefs, as were sought in
CS(OS) 444/2019 Page 12 of 20
Vidyanidhi Dalmia supra, would be for the purpose of that relief only and
not for the relief of judicial separation.
16. The High Court of Mysore in Shankarappa Vs. Basamma AIR 1964
Mysore 247 was concerned with the jurisdiction of the Civil Court to
entertain a suit by a wife for permanent injunction to restrain her husband
from contracting a second marriage. It was the contention of the counsel for
the husband therein, as of the counsel for the wife in this case, that the
Hindu Marriage Act is a complete and exhaustive Code on all the matters
regulated by it and a law to amend and codify the law relating to marriage
amongst Hindus and Section 4 thereof gives the Act an overriding effect. It
was held (i) that Section 4 has to be read with Section 29 and Section 19 of
the Hindu Marriage Act; (ii) it is clear from the provisions of the said three
Sections and particularly from Section 4 that the only statutory provisions
which cease to have effect after enactment of the Hindu Marriage Act, 1955
are those which relate to matters for which provision is made in the Act or
which are inconsistent with any such provisions; (iii) the suit brought by the
wife therein was a suit of a Civil nature; (iv) Hindu Marriage Act has not
expressly barred the institution of such a suit and there is no other law which
so expressly bars it; and, (v) though the Hindu Marriage Act authorizes a
declaration that the bigamous marriage is void but only after the act of
bigamy is committed. The suit was thus held to be maintainable. The
Division Bench of the High Court of Andhra Pradesh, in Urlankula Gopal
Rao Vs. Urlankula Suramma, 1969 SSC OnLine AP 30 was concerned
with the question, whether a suit by a wife for recovery of maintenance from
the husband after an order for separation was made under Section 10 of the
Hindu Marriage Act is maintainable or whether her remedy was only to
CS(OS) 444/2019 Page 13 of 20
invoke the jurisdiction of the Matrimonial Court under Section 25 of the
Hindu Marriage Act. Reliance therein also was placed on Section 4 of the
Hindu Marriage Act. It was held that (a) exclusion of jurisdiction of a Civil
Court is not to be readily inferred and infringement of any legal right is
always actionable in a Court unless its cognizance is expressly or impliedly
barred; (b) there is no provision in the Hindu Marriage Act expressly barring
the jurisdiction of the Civil Court in the matter of a claim for maintenance of
a wife; (c) the right to maintenance of a Hindu wife is a right conferred
under the ancient Hindu law and has been recognized and affirmed by
subsequent enactments ending with the Hindu Adoption and Maintenance
Act, 1956; (d) this legal right can always be enforced by means of a suit; in
the absence of any provision negating such suit, the right to sue in a Civil
Court for recovery of maintenance continues; (e) the Hindu Marriage Act is
an enactment relating to marriage and in no sense can be regarded as a
special law relating to the right of maintenance; and, (f) the suit thus has to
be maintainable. The High Court of Bombay also in Rajeshbai & Ors. Vs.
Shantabai AIR 1982 Bombay 231, concerned with the maintainability of a
suit by a wife against the husband for permanent injunction restraining the
husband from disturbing possession and enjoyment of the property, held that
(A) the contention that only in special proceedings under the Hindu
Marriage Act could such an issue arise and be adjudicated upon could not be
accepted; (B) the object of enacting the Hindu Marriage Act was to amend
and codify the law relating to marriages amongst the Hindus; (C) though no
doubt the Act provides for special remedies with regard to specific reliefs
through Marital Courts, it does not follow that when the legality of marriage
in any other proceedings is in issue, the same cannot be answered by
CS(OS) 444/2019 Page 14 of 20
reference to the provisions of the Hindu Marriage Act; (D) some of the
provisions of the Hindu Marriage Act are definitive and declaratory and they
can be applied as and when occasion arises to apply the same and in any
proceedings; (E) special remedial provisions available of Section 9 to 13 of
the Act, permitting marital reliefs, are not exhaustive nor compulsively
universal so as to exclude powers of Civil Courts to find out legality of
marital relations; so when reliefs of the kind mentioned in Sections 9 to 13
are sought, those provisions are exhaustive and compulsive and exclude the
jurisdiction of other Courts; (F) marriage, being a legal relation involving
matters of status and title of a person; whenever the same is in issue, the
definitive provisions will have to be applied; (G) remedial aspect enables
either of the parties to present a petition for declaration and get a decree of
nullity with regard to the marriage solemnised in contravention of the
provisions of the Act; from this, it does not follow that in any other action,
the legal validity of marriage cannot be set up; if such a construction is
preferred, it will cut down the universal jurisdiction of Civil Courts to
consider matters of civil status and title; and, (H) if marriage involves the
matters of personal and proprietary titles, jurisdiction available to Courts
cannot be deemed to be excluded. Finally, in Sasanka Sekhar Basu supra,
the question for consideration was, whether a suit, in which reliefs other
than reliefs contemplated under the various provisions of Hindu Marriage
Act have been prayed for, is to be filed before the Court of the learned
District Judge under Section 19 of the Hindu Marriage Act or before the
Civil Court. It was held that (I) the proposition that no relief other than the
reliefs contemplated under the Hindu Marriage Act can be obtained by any
of the spouses cannot be accepted; (II) Section 4 of the Hindu Marriage Act
CS(OS) 444/2019 Page 15 of 20
inter alia provides that any other law in force immediately before the
commencement of the Hindu Marriage Act shall cease to have effect so far
the same is inconsistent with any of the provisions contained in the Hindu
Marriage Act; (III) the provisions of the Specific Relief Act under which a
person can apply for a declaratory relief, cannot be said to be inconsistent
with any of the provisions of the Hindu Marriage Act when the reliefs
claimed in the suit do not fall within the purview of any of the provisions of
the Hindu Marriage Act; (IV) the Hindu Marriage Act, though a special Act,
does not have an overriding effect for matters for which no provisions is
made therein; (V) Section 4 abrogates only the rules and the law of
marriage earlier applicable to Hindus, whether by virtue of any text or rule
of Hindu law or any custom or usage having the force of law, in respect of
all matters dealt with in the Act; (VI) Section 4 supersedes any other law
only if inconsistent with the provisions contained in the Hindu Marriage Act
and not otherwise; and, (VII) the Act does not impliedly or expressly
exclude the jurisdiction of the Civil Court under Section 9 of the Civil Court
to grant a declaratory decree under the Specific Relief Act. I may emphasise
that the said judgment of the Calcutta High Court was expressly approved of
in Samar Kumar Roy supra.
17. As far as the judgments of the High Court of Kerala are concerned,
the reasoning thereof has not found favour in the subsequent dicta of the
Supreme Court in Samar Kumar Roy supra. Samar Kumar Roy supra was
a suit by a husband for declaration that the defendant was not his legally
wedded wife. Notwithstanding the Explanation (a) to Section 7(1) of the
Family Courts Act providing the Family Court to be having exclusive
jurisdiction between the parties to a marriage for a decree of nullity of
CS(OS) 444/2019 Page 16 of 20
marriage (declaring the marriage to be null and void or as the case may be,
annulling the marriage) and Explanation (b) to Section 7(1) of the Act
providing the Family Court to be having exclusive jurisdiction over a suit or
proceeding for a declaration as to the validity of a marriage or as to the
matrimonial status of any person, the suit for declaration was held to be
maintainable. The same negates the reasoning through all the judgments of
the Kerala High Court. If the argument of the counsel for the defendant
were to be accepted, a suit for declaration by a husband that the defendant
was not his legally wedded wife, would also fall within the meaning of
Explanation (d) to Section 7(1) of the Family Courts Act as also under
Explanation (e) to Section 7(1), providing for the Family Court to have
exclusive jurisdiction over a suit or proceeding for declaration as to
legitimacy of any person and which would include the legitimacy of a
person as a wife.
18. Thus, in my view, the application of the defendant for rejection of the
plaint has to fail on account of Samar Kumar Roy supra alone.
19. I have in Manita Khurana supra held Explanation (d) to Section 7(1)
of the Family Courts Act which is invoked by the defendant to oust the
jurisdiction of this Court that the words "circumstances arising out of
marital relationship" in Explanation (d) to Section 7(1) do not qualify the
words "suit or proceeding" but qualify the words "order or injunction". The
order or injunction claimed by the plaintiff in the present suit is of recovery
of damages for defamation and harassment and for injunction restraining the
defendant from indulging in acts aforementioned which are per se not
permissible in law to be committed by any person, even if in a matrimonial
CS(OS) 444/2019 Page 17 of 20
relationship with the other. Supreme Court, in S. Nambi Narayanan Vs.
Siby Mathews (2018) 10 SCC 804 observed that the reputation of an
individual is an insegregable facet of his right to life with dignity. In Kiran
Bedi Vs. Committee of Inquiry (1989) 1 SCC 494, it was observed that the
right to enjoyment of a reputation, unassailed by malicious slander is of
ancient origin and necessary to human society and a good reputation is an
element of personal security and is protected by the Constitution equally
with the right to the enjoyment of life, liberty and property. Therefore, none,
including a spouse, has a right to publish, circulate, propagate, abuse,
threaten to disseminate defamatory content, to visit the work place of the
other spouse and to interfere in discharge of official duties by the other
spouse. The fact that the parties are in a matrimonial relationship would, in
my view, make no difference. Rather, all communications between spouses
are confidential and no spouse has a right to defame other. Only
proceedings in accordance with law can be taken.
20. The Hindu Marriage Act does not vest any right in a spouse of
injunction or of recovery of damages on account of such acts. Even if it
vests a right on the said facts to a relief of judicial separation or dissolution
of marriage by a decree of divorce, it cannot be said that on account of
Section 4 of the Hindu Marriage Act or any other provision, the spouse is
compelled, when faced with such circumstances, to necessarily seek the
reliefs of judicial separation or dissolution of marriage by a decree of
divorce. None can be compelled to do so. Moreover, the reliefs of judicial
separation and/or divorce would still not be a cure for the acts complained of
continuing.
CS(OS) 444/2019 Page 18 of 20
21. Mention may be made of Pearl Chesson Vs. Sean Lawrence
MANU/MH/0127/2018 where, concerned with the maintainability of a civil
suit by a wife against the husband and mother-in-law for permanent
injunction restraining them from dealing with a flat claimed to be financed
by the husband and wife, it was held (i) that the suit was not a proceeding
arising out of the Hindu Marriage Act; it was a pure and simple proceeding
for declaration under Section 34 of the Specific Relief Act, 1963, seeking to
establish a right to property; (ii) the suit did not arise out of or in any way
was concerned with any of the provisions of the Hindu Marriage Act; (iii)
though the parties happened to be husband and wife, the suit was in respect
of a property which was owned as an individual; and, (iv) such a suit would
not be barred. Mention may also be made of H. P. Shobha Vs.
Parvathamma 2019 Indlaw KAR 4618 upholding the maintainability of the
suit for permanent injunction restraining use of surname. Mention may yet
further be made of Vijayalakshmy Vs. P.K. Jayashree AIR 2019 Ker 53
(DB) holding that though adjudication of matrimonial disputes in a
congenial atmosphere is a function of the Family Court and a broad and
liberal approach is required in determining the jurisdiction of the Family
Court, but the same does not mean that the Family Court has jurisdiction to
adjudicate the matter not even remotely connected with the marriage and
marital relationship; exclusion of jurisdiction of Civil Court cannot be
readily inferred. Recently, in R. Kasthuri Vs. M. Kasthuri (2018) 5 SCC
353 also, the jurisdiction of the Civil Court over a suit for declaration of the
plaintiff no.1 as the legally wedded wife of the deceased and of the plaintiffs
no.2 to 4 as the legitimate children of the deceased was upheld, negating the
plea of exclusive jurisdiction of the Family Court, reasoning that the dispute
CS(OS) 444/2019 Page 19 of 20
between the parties was purely a civil dispute and could be resolved vide a
civil suit.
22. Seen in this context, the present is a suit by a husband against the wife
to restrain the wife from defaming the husband and/or from harassing the
husband and interfering in the husband performing his work and for
damages therefor, and merely because the parties are married to each other,
would not be determinative of the jurisdiction. The injunction and other
reliefs sought cannot at all said to be arising out of marital relationship as is
the requirement of Explanation (d) to Section 7(1) for a proceeding to fall in
the domain of the Family Court.
23. I am therefore unable to hold that the findings, even if any, returned in
the present suit of the plaintiff being entitled to the reliefs claimed would
have any bearing on the proceedings, if any under the Hindu Marriage Act.
Rather, I am of the opinion that for granting the reliefs of injunction, as
claimed, no trial even is necessary and no findings required to be returned as
the defendant apprehends. A finding of one spouse being not entitled to
defame another and/or causing disturbance at the work place of another
cannot be a finding of cruelty under the Hindu Marriage Act. To the said
extent, I respectfully differ from Vidyanidhi Dalmia supra.
24. Resultantly, no merit is found in the application, which is dismissed.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 18, 2019 „pp/bs‟ CS(OS) 444/2019 Page 20 of 20