Delhi District Court
Mst. Rahil Jahan vs Haider Ali on 14 March, 2018
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET
COURTS, NEW DELHI
Presiding Officer: Ms. Neelofer Abida Perveen, ADJ04
Old Suit No.
Case no. 27235/2016
In the matter of:
Mst. Rahil Jahan,
W/o Sh. Haider Ali
R/o H. No. 700/67,
Gali No. 24, Vijay Park,
Maujpur, Delhi110053 ..........Plaintiff.
Vs.
1. Haider Ali
S/o Late Shri Saddique
R/o H. No. C20, Abul Fazal Enclave,
PartII, Shine Bagh, 08th Thokar,
Jamia Nagar, Okhla,
New Delhi 110025.
2. Mohd. Moosa
S/o Mohd. Mumtaz Ali
R/o M92, Abul Fazal Enclave,
Jamia Nagar, Okhla,
New Delhi - 110025. .........Defendants.
Date of institution : 09.06.2017
Date on which order was reserved : 09.02.2018
Date of pronouncement of the order : 14.03.2018
JUDGMENT
Vide this judgment, I shall decide the appeal U/s 96 R/w
CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 1 of 13
Section 151 CPC for setting aside Judgment and Decree dated
20.03.2017 passed by the Court of Ms. Shriya Agrawal, Learned Civil
Judge, South East District, Saket Courts, New Delhi in case titled as
MST Rahil Jahan vs. Haider Ali & Ors. in Civil Suit bearing No.
52193/2016.
1. The plaintiff is in appeal against the exparte judgment and
decree dated 20.03.2017 whereby the plaint in the suit of the plaintiff
for permanent injunction is held liable to be rejected, the claim of the
plaintiff being covered by Section 7 (1) Explanation Clause (d) R/w
Section 8 of the Family Courts Act, 1984.
2. At the very outset let me advert to the statutory provision in
the teeth of which the suit of the appellant / plaintiff for permanent
injunction is held barred by law and plaint as liable to be rejected. The
relevant statutory provision i.e. Section 7 and 8 of the Family Court's
Act, 1984 prescribes 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 law, to be a district court or,
as the case may be, such subordinate civil
CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 2 of 13
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 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.
CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 3 of 13
(2) Subject to the other provisions of this Act, a
Family Court shall also have an 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."
"8. Exclusion of jurisdiction and pending
proceedings - Where a Family Court has been
established for any area,
(a) no district court or any subordinate civil
court referred to in subsection (I) 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 subsection.
(b) no Magistrate shall, in relation to such
area, have or exercise any jurisdiction or
powers under Chapter IX of the Code of
Criminal Procedure, 1973;
(c) every suit or proceeding under Chapte
IX of the Code of Criminal Procedure, 1973,
(i) which is pending immediately before the
CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 4 of 13
establishment of such Family Court before any
district court or subordinate court referred to
in that subsection 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."
3. I shall now traverse the cause of action that the appellant as
plaintiff has set up against the respondents herein, the defendants to
the suit for permanent injunction. The plaintiff is the legally wedded wife of the defendant no. 1, the marriage of the plaintiff and defendant no. 1 was solemnized on 04.11.2000 according to Muslim rites and customs at Delhi. The marriage of the plaintiff and the defendant no. 1 was duly consummated and two male children namely Master Huzaifa and Master Harish were born out of the said wedlock with the defendant no. 1 and presently they are residing with the plaintiff. The plaintiff alleges that parents of the plaintiff spent Rs. 3,50,000/ in the marriage. That after six months of marriage, the family members of the defendant no. 1 started taunting and torturing the plaintiff mentally for bringing less dowry. That the parents of the CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 5 of 13 plaintiff gave Bajaj Chetak Scooter in the marriage to the defendant no. 1 due to which his mother was annoyed, since the motorcycle was not given in the marriage. That the plaintiff told this fact to her family members, on which brother of the aggrieved person purchased the Pulsar motorcycle to the defendant no. 1 in the year 2002 and paid the installments from his saving account with the Punjab National Bank, Yamuna Vihar, Delhi - 110053 in two years. That the defendant no. 1 and other family members used to pressurize the plaintiff to bring Rs. 2,00,000/ from her parents for enhancement of the business of the defendant no. 1 and threatened that either to bring aforesaid amount or they will not allow her to live peacefully and they started torturing the plaintiff in different ways. On the instigation of the mother of the defendant no. 1, the defendant no. 1 threatened that he will divorce or kill the plaintiff, if demand of Rs. 2 Lacs were not fulfilled. That after snatching both the children, all the family members of the defendant no. 1 with defendant no. 1 turned out the plaintiff from the matrimonial home and the plaintiff came with her father to her parental home without children. That on 16.09.2005, at about 88:30 p.m., the defendant no. 1 alongwith some goonda elements came to the parental home of the plaintiff and had given beatings to the plaintiff and her brother and also used filthy language. The brother of the plaintiff made no. 100 call for police assistance, on which all the goonda elements ran away from the spot but the defendant no. 1 was arrested but to save the matrimonial life, the plaintiff got free the defendant no. 1 from the police clutch by saying that it is our family dispute. That due to fear of the police, the defendant no. 1 with other CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 6 of 13 family members came at the parental home of the plaintiff and in presence of mediator and some respectable persons of the locality, the defendant no. 1 and other family person apologized and assured not to repeat the previous act in future and on their request and assurance the father of the plaintiff sent her to matrimonial home but thereafter the behavior of the defendant no. 1 and other family members did not change towards the plaintiff and they imposed a condition on the plaintiff not to make any contact with her family members and the defendant no. 1 threatened the plaintiff that he will kill her brother. That on 10.02.2007, somehow the plaintiff contacted her family members through telephone and narrated all atrocities, thereafter the family members of the plaintiff came to the matrimonial home of the plaintiff alongwith mediator and the family members of the defendant no. 1 made false and defamatory allegations on the character of the plaintiff. That the family members of the plaintiff requested the defendant no. 1 and other family members not to repeat the previous act and they returned back but after two days, the defendant no. 1 on the instigation of her mother again demanded illegal dowry of Rs. 2 Lacs and to get fulfilled their illegal demand defendant no. 1 brought the plaintiff from the matrimonial home and left her in the street of her parental home. That thereafter on 03.04.2007, the plaintiff lodged a police complaint before the CAW Cell, North East, Delhi on which the defendant no. 1 alongwith other family members apologized for their conduct and requested not to repeat their previous act and on believing their words, the father of the plaintiff again sent the plaintiff to the matrimonial home. That thereafter the behavior of the CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 7 of 13 defendant no. 1 and other family members became very cruel towards the plaintiff and they all used to taunt, humiliate and torture the plaintiff on one pretext or the other. That on 05.04.2009 the defendant no. 1 gave beating to the plaintiff mercilessly and on the call of the plaintiff for medical examination her MLC was prepared and on the request and assurance of Mohalla people, the plaintiff compromised with the defendant no. 1 and other family members. That on 08.08.2009, the defendant no. 1 again gave merciless beating to the plaintiff. The plaintiff called the police and police came there and on the assurance of the defendant no. 1 that he will not repeat any cruelty in future, the police returned back. On 13.08.2009, the brother of the plaintiff namely Mr. Irfan reached her matrimonial home alongwith her minor children in wearing clothes and the plaintiff lodged a complaint on 14.08.2009 in police station. That since 13.08.2009 the plaintiff alongwith her both minor children has been residing at her parental home on the mercy of her old ailing parents and the defendant no. 1 willfully has deserted the plaintiff and both the minor children. That the entire dowry articles and stridhan of the plaintiff were kept by the defendant no. 1 and other family members of the defendant no. 1 in their custody. That the plaintiff is house wife and not having any movable and immovable property in her name and is unable to maintain herself and her both the minor children and the defendant no. 1 refused to keep them in the matrimonial home and maintain them in any manner. That on 21.10.2009 the plaintiff instituted maintenance petition bearing CC No. 421/09 before the Hon'ble Court of Ms. Shuchi Laler, Ld. MM (Mahila Court), CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 8 of 13 Karkardooma Courts, Delhi for self and the minor children against the defendant no. 1. That on 30.01.2010 the Hon'ble Court while observing that the defendant no. 1 is deliberately avoiding service, the defendant no. 1 was proceeded exparte and thereafter the Hon'ble Court of Ms. Shuchi Laler, Ld. MM (Mahila Court), Karkardooma Courts, Delhi was pleased to passed the order dated 03.03.2010, thereby directing the defendant no. 1 to make an arrangement of Rs. 3,000/ per month in favour of the plaintiff and Rs. 1,500/ per month in favour of the both the minor children from the date of filing of the present petition and also directed to pay the same by 07 th of every month by money order or be deposited in the bank account of the plaintiff and also directed to clear the same within 03 moths. That the defendant no. 1 did not comply with the order dated 03.03.2010 and the plaintiff was constrained to file the execution petition bearing no. 180/10 dated 29.04.2010 before the Hon'ble Court of Ms. Shuchi Laler, Ld. MM (Mahila Court), Karkardooma Courts, Delhi and the defendant no. 1 has not made any payment in this regard and thereafter the Hon'ble Court of Ms. Shuchi Laler, Ld. MM (Mahila Court), Karkardooma Courts, Delhi was pleased to issue the warrant of attachment vide order dated 185.01.2011 but same warrant could not be executed as the defendant no. 1 was running from the Law & Order with the connivance of other family members. That thereafter again warrant of attachment dated 11.07.2011 was issued by the Hon'ble Court of Ms. Shuchi Laler, Ld. MM (Mahila Court), Karkardooma Courts, Delhi but same could not be executed as suit property was locked and no one was present there. That thereafter CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 9 of 13 now again warrant of attachment dated 03.11.2011 was issued by the Hon'ble Court of Ms. Shuchi Laler, Ld. MM (Mahila Court), Karkardooma Courts, Delhi but same could not be executed as the defendant no. 1 has been absconding from the order of the Hon'ble Court. That thereafter again the Hon'ble Court of Ms. Harleen Singh, Ld. MM (Mahila Court), Karkardooma Courts, Delhi was pleased to issued the warrant of arrest dated 23.05.2012 through the SHO P.S. Bhajanpura, Delhi but same could not be executed as the defendant no. 1 was abstaining from the compliance of the order of the Hon'ble Court. That the defendant no. 1 is owner of property bearing No. C 20, measuring area 100 Sq. Yards, part of Khasra No. 764/364 and 717/250, Abul Fazal Enclave, PartII, Shine Bagh, Jamia Nagar, Okhla, New Delhi - 110025, hereinafter referred as 'Suit Property'. That the defendant no. 1 has entered in to a collaboration Agreement dated 02.03.2016 in respect of the suit property with the defendant no.
2. That the defendant no. 1 has been intending to sell out the suit property to the defendant no. 2 and is fully aware of order dated 03.03.2010 passed by the Hon'ble Court of Ms. Shuchi Laler, Ld. MM (Mahila Court), Karkardooma Courts, Delhi as well as about the warrant of attachment of the suit property and warrant of arrest and now both the defendants with the connivance of the each other wants to defeat the order of the Hon'ble Court with their illintention in every manner and has full desire to deprive the plaintiff from the maintenance order and there is sole intention to deprive the same. That one FIR bearing no. 446/10, PS Bhajanpura u/s 498A/406 of Indian Penal Code read with Section 3/4 of Dowry Prohibition Act CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 10 of 13 has been registered against the defendant no. 1 and in the same case the defendant no. 1 has been declared the proclaimed offender vide order dated 19.04.2014. That the defendant no. 2 has full notice of each and every facts of the maintenance awarded as he has been living in the neighbourhood and deliberately with the connivance of the defendant no. 1 cooperating to deprive the plaintiff and her both the minor sons from the maintenance order. That the suit property is only source by which the maintenance can be recovered by the plaintiff as the payment of maintenance is due upon the defendant no.
1. That the maintenance order has been passed prior to the collaboration agreement between the defendant no. 1 and defendant no. 2 and there is no efficacious remedy available except the suit for permanent injunction in order to defeat the nefarious designs of the defendant no. 1 and defendant no. 2.
4. I have deliberately traversed the length and breadth of the cause of action setup before the Learned Trial Court to ascertain as to whether the cause for the institution of the suit for permanent injunction against the defendants arose out of a matrimonial dispute in terms of explanation (d) to Section 7 (1) of the Family Courts Act. The learned counsel for the appellant contended that the learned Trial Court has wrongly applied the provision of Section 7 (1) Explanation Clause (d) r/w Section 8 of the Family Court Act, 1984 as the Section applies between husband and wife and the defendant no. 2 to the suit is not connected in any manner with the matrimonial relations and is a total stranger. I revert to the statue and find that family Court is vested with the jurisdiction in respect of all suits and proceedings, in terms CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 11 of 13 of subsection (a) between parties to a marriage for a decree of nullity, restitution of conjugal right, judicial separation or dissolution of marriage. Only where a suit for the said reliefs is instituted between husband and wife, parties to the marriage, that the Family Court assumes jurisdiction over the subject matter of the dispute. Under subclause (b) it is any suit for a declaration as to the validity of a marriage or matrimonial status of a person i.e. to be instituted before the Family Court as the appropriate Court of jurisdiction. Such a suit for declaration need not necessarily be restricted interse the parties to a marriage. However, a suit with respect to property of the parties to a marriage or either of them need necessarily to be maintained interse the parties to a marriage for the Family Court to enjoy the jurisdiction in respect of such a suit and this is provided under subclause (c). Under subclause (d), however, a suit for injunction if it arises out of a marital relationship must be filed before the Family Court, the statute does not prescribe that it is only where the parties to a suit for injunction in circumstances arising out of marital relationship are, the parties to the marriage, only then the Family Court shall exercise the jurisdiction. Who may be the parties to a suit for injunction being sought from a cause of action arising out of a marital relationship is not stipulated under subclause (d) whereas under subclause (a), sub clause (c) it is specifically prescribed that the suit between parties to a marriage would lye before a Family Court. Further, a suit for declaration as to the legitimacy of a person need not necessarily be between parties to a marriage. Under subclauses (b), (d), (e), (f) and
(g) it is the nature of the relief being claimed and the premises upon CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 12 of 13 which the relief is being claimed that is relevant and material for determining the jurisdiction of the Family Court and not the parties to the suit. Having gathered all the allegations of facts raised by the appellant / plaintiff, I find that the suit of the appellant / plaintiff is one such suit. The suit is for permanent injunction restraining the defendants from creating any third party interests in property described as bearing no. C20, measuring 100 Sq. Yards, part of Khasra No. 764/364 and 717/250, Abul Fazal Enclave, PartII, Shaheen Bagh, Jamia Nagar, Okhla, till the clearance of the maintenance amount as awarded by the Learned MM (Mahila Court), Karkardooma. The entire cause of action is founded upon and the right to relief accrues from the marital relationship and no other. Besides permanent injunction no further relief is being sought by the plaintiff / appellant. In such facts and circumstances the suit of the plaintiff from the statement of facts as enumerated above and on an assessment of the bundle of facts constituting the cause of action appears squarely to be hit by the embargo raised under section 8 r/w Section 7 (1) (d) of the Family Courts Act. I find no infirmity in the impugned order. The appeal is therefore dismissed being devoid of merit. Digitally signed by NEELOFER NEELOFER ABIDA File be consigned to Record Room. ABIDA PERVEEN Date:
PERVEEN 2018.03.14
23:04:22
+0530
Pronounced in the open Court (Neelofer Abida Perveen)
on this 14th March, 2018. Addl. District Judge04,
SouthEast, Saket Court,
New Delhi.
The judgment contains 13 pages all checked and signed by me.
CS No. 27235/16 Mst. Rahil Jahan vs. Haider Ali & Anr. Page 13 of 13