Madras High Court
C.Raja vs M.Sridevi @ Kalpana on 3 April, 2013
CRP.No.926/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 30.01.2023
Delivered on : 19.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
CRP.No.926/2016 & CMP.No.5149/2016
C.Raja .. Petitioner
Vs.
M.Sridevi @ Kalpana .. Respondent
Prayer:- Civil Revision Petition filed under Article 226 of the Constitution
of India praying to strike off the plaint in OS.No.296/2015 pending on the
file of the learned III Additional Judge, Family Court, Chennai, and
consequently, to dismiss the said suit.
For Petitioner : Mr.S.Makesh
For Respondent : Mr.R.Bharath Kumar as
Amicus Curiae
https://www.mhc.tn.gov.in/judis 1
CRP.No.926/2016
ORDER
S.S.SUNDAR, J.
(1) The above Civil Revision Petition is filed under Article 227 of the Constitution of India with the prayer to strike off the plaint in OS.No.296/2015 pending on the file of the learned III Additional Judge, Family Court, Chenai, and consequently to dismiss the said suit.
(2) The petitioner in the above Civil Revision Petition is the husband of the respondent and defendant in the suit in OS.No.296/2015. The wife of the petitioner, namely, the respondent herein, filed the suit in OS.No.296/2015 before the learned III Additional Judge, Family Court, Chennai for permanent injunction restraining the petitioner herein from alienating the suit schedule property to any third party in whatsoever manner. The suit property is described as a flat measuring 275 sq.ft., in the second floor of a building in South Boag Road, T.Nagar, Chennai-17.
(3) The case of the respondent in the plaint is that the petitioner married her on 12.06.2014. It is her further case that after https://www.mhc.tn.gov.in/judis 2 CRP.No.926/2016 marriage, the couple started living in the matrimonial house of the petitioner. The respondent/wife had made several allegations in the plaint against the petitioner herein and it is stated that with fraudulent motive and to deceive the respondent, the respondent was forced to go to her parental home. It was her further allegation that the petitioner had deserted her and she filed a suit for permanent injunction with the specific allegation that she has got right to reside in the husband's place namely the suit property. It is also alleged that the revision petitioner is trying to alienate the suit property.
(4) When the matter was listed for admission, the learned counsel appearing for the petitioner relying upon the earlier judgment of this Court in CRP.[PD].No.142/2013 in the case of B.Gajendran V. Adhilakshmi dated 03.04.2013, by the Hon'ble Mr. Justice S.NAGAMUTHU [as he then was], submitted that the suit for a perpetual injunction filed by a wife against husband not to alienate the property is not maintainable in the Family Court as it did not fall under any one of the clauses of Section 7[1] of the Family https://www.mhc.tn.gov.in/judis 3 CRP.No.926/2016 Courts Act. In that case, a similar petition to strike off the plaint was allowed. The learned Single Judge in the said case, struck off the plaint in the original suit filed by the wife before the Family Court.
(5) After paying attention to the submissions of the learned counsel appearing for the petitioner and the order in CRP.[PD]No.142/2013 cited before the learned Judge as a precedent, Hon'ble Mr.Justice P.R.SHIVAKUMAR [as he then was], disagreeing with the view expressed by the Hon'ble Mr. Justice S.NAGAMUTHU [as he then was] in CRP.[PD].No.142/2013, was of the view that the matter should be referred to a Larger Bench. Hence, the learned Judge directed the Registry to list the above Civil Revision Petition before the Division Bench.
(6) When this matter was listed before us on 06.12.2022, this Court appointed Mr.R.Bharath Kumar, Advocate as Amicus Curiae to assist the Court.
(7) While referring to the Larger Bench, the learned Single Judge has observed that he differs from the view taken by the learned Single https://www.mhc.tn.gov.in/judis 4 CRP.No.926/2016 Judge in CRP.[PD].No.142/2013 and unable to accept the same as a precedent for the following reasons:-
''6....
[1]The power of superintendence of the High Court under Article 227 of the Constitution of India should be sparingly used and with circumspection, that too when the same is invoked for striking off the plaint, which shall have the effect of depriving the opposite party of a statutory appeal if the plaint is rejected under any of the clauses of Order VII Rule 11 CPC.
2.The contention that the Family Court does not have jurisdiction under Section 7(1) of the Family Courts Act will not mean that any other civil Court will not have jurisdiction to entertain such a suit. If at all such a suit can be entertained by any other civil Court, the suit filed in the Family Court should be construed as a suit filed in a wrong Court. If the suit is sought to be resisted on the ground of jurisdiction, then Order VII Rule 10 CPC will get attracted. In such a case, wherein an alternative remedy which is effective and efficacious is available, invocation of the Power of High Court under Article 227 for closing the https://www.mhc.tn.gov.in/judis 5 CRP.No.926/2016 door on the plaintiff at the threshold will not be justifiable.
3.Sub-clauses (c) and (d) of Section 7(1) of the Family Courts Act list out two types of cases between the spouses that can be entertained by the Family Court. For the purpose of elucidation, the entire-Sub Section (1) of Section 7 is reproduced, highlighting the relevant sub-clauses, namely Sub-Clauses (c) and
(d):
''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 sub-section are suits and proceedings of the following nature, namely:-
https://www.mhc.tn.gov.in/judis 6 CRP.No.926/2016
(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, 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 to the parties or of either of them;
(d)a suit or proceeding for an order of 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.'' Sub-Clause(c) makes a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them, as one https://www.mhc.tn.gov.in/judis 7 CRP.No.926/2016 regarding which the Family Court shall have jurisdiction. Sub-Section (d) states that the Family Court shall have jurisdiction to entertain a suit or proceeding for an order of injunction in circumstances arising out of a matrimonial relationship. Where the wife claims a right in the shared household and also an injunction not to do anything to nullify such a right, we cannot say that the Family Court does not have jurisdiction to entertain such a suit for injunction.
7.Even in cases wherein a plaint can be rejected under Order VII Rule 11 CPC, the petition invoking Article 227 of the Constitution of India for striking off the plaint can be negatived on the ground of availability of an effective and efficacious alternative remedy of rejection of plaint under Order VII Rule 11 CPC, whereupon the aggrieved party shall have a right of appeal.'' (8) The question therefore before us is whether the view expressed by the Hon'ble Mr. Justice S.NAGAMUTHU in the case of B.Gajendran Vs. Adhilakshmi in CRP.[PD].No.142/2013 dated 03.04.2013 has to be reconsidered for the reason given by Hon'ble Mr. Justice P.R.SHIVAKUMAR, in his dissenting note in this https://www.mhc.tn.gov.in/judis 8 CRP.No.926/2016 revision petition. Having regard to the specific reference, we reframe the question to be answered by us as follows: ''Whether the Family Court has inherent jurisdiction under Section 7 of the Family Courts Act to entertain a suit by wife against husband for perpetual injunction restraining the husband from alienating residential property of husband while wife and husband were living together for some time and a revision petition maintainable under Article 227 of the Constitution of India to strike of the plaint on the ground that the Family Court has no jurisdiction to entertain a suit?
(9) The learned counsel for the petitioner/husband relied upon the reasons given by the learned Single Judge in CRP.[PD].No.142/2013 to quash the proceedings before the Family court filed by the wife. It was pointed out that the learned Judge referred to a judgment of the Division Bench of Allahabad High Court which has taken the same view. In the case of Smt.Kanchan Upadhyay Vs. State of U.P.and others reported in AIR 2006 Allahabad 148, a Division Bench of Allahabad High Court https://www.mhc.tn.gov.in/judis 9 CRP.No.926/2016 considered a case where the wife had filed the suit for injunction before the Family court at Allahabad to restrain the husband from selling the house belonging to the husband. Though the Family Court granted a decree for injunction, the matter came up before the Division Bench of Allahabad High Court and it was held that the suit is not maintainable in the following lines:-
“3.The petitioner relies upon an interim injunction order dated 24.12.2005 obtained by her from the Family Court, Allahabad, restraining the husband from selling the house. For obtaining such an injunction, two things are necessary. First, the person seeking injunction should have a right to that effect. In this case, we do not see how the petitioner, merely on account of being wife, can claim the right to restrain the husband from selling property, which belongs to the husband. Therefore, the injunction did not deserve to be granted on facts. Besides, this injunction, which has been granted in proceedings under Section 125 Cr.P.C. is wholly outside the scope of those matrimonial proceedings pending before the Family Court. Thus prima facie, the Family Court has no jurisdiction to grant this kind of an injunction https://www.mhc.tn.gov.in/judis 10 CRP.No.926/2016 order”.
(10) Following the judgment of Division Bench of Allahabad High Court, above referred to, the Hon'ble Mr. Justice S.NAGAMUTHU [as he then was] held that Explanations [a], [b], [c], [e], [f] and [g] of Section 7 of the Family Courts Act would not cover the issue involved in a suit for perpetual injunction as Section 7 of the Act refers to proceedings purely relating to matrimonial relations between the parties. The learned Judge observed that Explanation [c] to Section 7 relates to suit or proceeding between the parties to marriage with respect to the property of the parties or of either of them and that the party who files the suit should have a semblance of right or title over the property. Since the learned Judge came to the conclusion that the dispute is not in respect of the property over which the plaintiff claims any semblance of right, it is held that the suit for bare injunction is a clear abuse of process of Court and therefore, the same is liable to be quashed.
(11) Mr.R.Bharath Kumar, learned counsel appearing as Amicus Curiae https://www.mhc.tn.gov.in/judis 11 CRP.No.926/2016 referred to several provisions of different Statutes, particularly, section 7 of the Family Courts Act, 1984 and specific provisions under the Protection of Women from Domestic Violence Act, 2005.
(12) It is relevant to refer to Section 7 of the Family Courts Act, 1984, which reads 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 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 https://www.mhc.tn.gov.in/judis 12 CRP.No.926/2016 marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may, 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 to the parties or of either of them;
(d)a suit or proceeding for an order of 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 https://www.mhc.tn.gov.in/judis 13 CRP.No.926/2016 Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
(13) It is pointed out that sub-section [2] of Section 7 confers jurisdiction and power of Family Courts to exercise the jurisdiction exercisable by a Magistrate of I Class under Chapter IX of CrPC, 1973 and such other jurisdiction as may be conferred on it by any other enactment. Learned counsel appearing as Amicus Curiae then referred to some of the provisions of the Protection of Women from Domestic Violence Act, 2006, particularly referring to the power of Judicial Magistrate under sections 18 to 21 of the said Act. Learned counsel submitted that the power under Section 7 of the Act will also include the power and jurisdiction exercisable by Magistrate and any other jurisdiction conferred on it by any other enactment.
(14) Mr.Bharath Kumar, learned counsel then referred to S.26 of Protection of Women from Domestic Violence Act, 2005, which reads as follows:-
''Section 26:-Relief in other suits and legal https://www.mhc.tn.gov.in/judis 14 CRP.No.926/2016 proceedings.— (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
26. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.'' (15) From the above, any relief available to a woman under Sections 18, 19, 20, 21 and 22 of the Act may also be sought in any legal proceeding, before a Civil Court, Family Court or a Criminal Court. A combined reading of Section 7[2][b] of Family Court Act and Section 26 of the Protection of Women from Domestic https://www.mhc.tn.gov.in/judis 15 CRP.No.926/2016 Violence Act, 2005, enables the Family Court, in a pending proceeding to entertain a counter claim or an application by wife to grant relief under Sections 18 to 22 of the Act even though the Family Court is not conferred with the jurisdiction to entertain a proceedings under Protection of Women from Domestic Violence Act, 2005 [hereinafter called as 'D.V.Act']. Right to reside in a shared household is given to a wife against her husband or his relative under Section 17 of the Act. This may not fall under Section 26 of the Act. However, prohibitory orders under Section 18 of the Act including alienation of assets enjoyed by both parties jointly by the wife or any aggrieved person under the Act. Similarly, Section 19 enables the wife to seek injunction against the husband from alienating or disposing off the shared household as defined under the Act. However, independent suit or proceedings before Family Court by invoking Section 26 of D.V.Act will not lie.
(16) Recently, a Full Bench of this Court in the leading case of Arul https://www.mhc.tn.gov.in/judis 16 CRP.No.926/2016 Daniel and Others Vs. Suganya, reported in 2022 [6] CTC 833, considered the question whether a proceeding under Section 12 of D.V.Act can be challenged under Article 227 of the Constitution of India or under Section 482 of Cr.P.C., and held that petition under Section 482 of Cr.P.C., is not maintainable and petition under Article 227 of Constitution is maintainable on a limited ground of patent lack of jurisdiction. Incidentally, the Hon'ble Full Bench considered the scope of Section 26 of D.V. Act, approved the maintainability of an application or a counter claim seeking relief under Sections 18 to 21 of D.V.Act, before a Civil Court or Family Court in a pending proceeding. While interpreting Section 7[2][b] of Family Courts Act, 1984, the Full Bench has consciously held that Section 7[2][b] of Family Courts Act, does not vest any jurisdiction with the Family Court though the Family Court enjoin jurisdiction vested under any other enactment. (17) Learned counsel appearing as Amicus Curiae relied upon a judgment of a learned Judge of Delhi High Court, dated 01.06.2022 in CM[M].No.69/2020 and CM.Appeal.No.2707/2020 in the case https://www.mhc.tn.gov.in/judis 17 CRP.No.926/2016 of Avneet Kaur Vs. Sadhu Singh and Another. Mother-in-law and father-in-law of the petitioner before Delhi High Court filed a suit for permanent injunction, restraining the petitioner from entering the suit property and for mandatory injunction directing the petitioner to remove from the suit property the belongings of the petitioner on specific allegation of harassment involving respondents in false criminal cases and a plea that petitioner's husband i.e., the son of respondents left their house to reside elsewhere. The petitioner wife filed an application before Senior Civil Judge seeking transfer of suit to the Family Court on the ground that the Family Court alone has jurisdiction. The learned Senior Civil Judge rejected the application holding that for application of explanations [c] and [d] to Section 7[1] of Family Court Act, the suit shall be exclusively between the parties to a marriage and that the suit between parents-in-law and daughter-in- law does not fall within the ambit of explanations [c] and [d] of Section 7[1] of Family Courts Act. The order of the Senior Civil Judge was set aside holding that the suit fall within the ambit of https://www.mhc.tn.gov.in/judis 18 CRP.No.926/2016 clause [d] of explanation to Section 7[1] of the Family Courts Act as the suit arise out of a marital relationship and explanation [d] to Section 7[1] does not expressly require the parties to the lis to be husband and wife. The following paragraphs in the said judgment are relevant:-
''25.The words ''arising out of'' have been held, by the Supreme Court, in several decisions, to be words of wide amplitude. One may refer, in this context, to the judgments of the Supreme Court in Renusagar Power Company Ltd Vs. General Electric Co reported in 1984 [4] SCC 679, Dhanrajmal Govindram V. Shamji Kalidas reported in AIR 1961 SC 1285 and Doypack Systems Ltd V. Union of India reported in 1988 [2] SCC 299. In State of Orissa V. State of Andhra Pradesh reported in 2006 [9] SCC 591, the Supreme Court held that the expression ''arising out of'' is wider in scope than the expression ''arising under'' and would include matters not only ''arising under'' but also matters ''connected with'' the instrument under consideration in that case.
26.Applying the understanding of the expression https://www.mhc.tn.gov.in/judis 19 CRP.No.926/2016 ''arising out of'' as contained in the afore cited decisions of the Supreme Court, it is clear that the circumstances in which the allegedly offending acts of the petitioner, against the respondents from which the entire dispute in the suit filed by the respondents against the petitioner germinated, arose out of the marital relationship between the petitioner and the respondent.
27.I deem it necessary to emphasize in this context, that Clause [d] of the explanation to Section 7[1] of the Family Courts Act does not envisage a causal relationship i.e., a relationship of cause and effect, between the marital relationship and the circumstances in which injunction was sought. All that is required is that the circumstances in which injunction was sought arose out of the marital relationship. A holistic reading of the case set up by the respondents against the plaintiff in suit 12114/2016 clearly indicates that the circumstances in which injunction was sought by the respondents against the petitioner did arise out of the marital relationship between the petitioner and Pardip, the son of the respondents.'' (18) Mr.Bharath Kumar, learned Amicus Curiae refered to another https://www.mhc.tn.gov.in/judis 20 CRP.No.926/2016 decision of this Court in the case of N.R.Gopal Vs. K.G.Banumathi and Others reported in 2000 [II] MLJ 107, wherein the scope of Section 7 of Family Courts Act was considered. The husband filed a petition for divorce against wife before Family Court, Madurai. Pending HMOP, the wife filed the interim applications. The first application is for an injunction restraining husband from discharging the othy in respect of a residential property in which the husband and wife were residing on the ground that the mortgage was obtained out of the funds provided by wife and the husband is trying to surrender her mortgage right and to get the mortgage amount by himself. The Family Court granted injunction. The revision petition filed by husband was dismissed by His Lordship Mr.Justice S.S.SUBRAMANI [as he then was] by referring to Section 7 of the Family Court stating that suits or proceedings between parties to a marriage with respect to property of parties or either of them has to be decided by the Family Court only.
(19) In Shyni Vs. George and Others reported in AIR 1997 Ker 231, https://www.mhc.tn.gov.in/judis 21 CRP.No.926/2016 relied upon by Mr.Bharath Kumar, a learned Judge of Kerala High Court deals with Section 7 of Family Courts Act in the following manner:-
''5.On the scheme of the Act and considering the conferment of jurisdiction on the Family Court, it is clear that a suit or preceding between the parties to a marriage with respect to the property of the parties or either of them comes within the purview of the Family Court. When a wife sues her husband for recovery of her property or which she claim to be her property, obviously the suit could be tried and disposed of only by the Family Court and when in such a suit the wife is obliged to add a close relative of the husband or even a stranger on the allegation that the husband had made over the property to that close relative or stranger, it will be too much to hold that the jurisdiction of the Family Court is ousted to deal with the claim of the plaintiff in view of the mere presence a the stranger or the close relative of the husband. In such a situation, the close relative of the husband or the stranger could only be the agent of the husband or a confident of the husband holding the property claimed by the wife on behalf of the husband. It is no https://www.mhc.tn.gov.in/judis 22 CRP.No.926/2016 possible to accept the argument that in such a circumstance also the wife would be obligee to file the suit against the stranger in an ordinary Civil Court even while she is forced to maintain her suit against the husband in the Family Court. Would it make any difference if in a given case, the property of the wife was entrusted not merely to the husband but also to a close relative of the husband, in this case the father- in-law? I think that it will be the very negation of the scheme of the Family Court Act and the attempt made by that Act to constitute a Special Civil Court for the purpose of dealing with all matrimonial disputes including dispute about property to hold that the wife would not be entitled to maintain a suit for recovery of her property against the father-in-law in the Family Court. If it were merely a suit against the father-in- law it is quite clear that the suit could be instituted only in the ordinary Civil Court. Equally, if it is merely a suit against the husband for recovery of property, the same could only be maintained in the Family Court. In a case where the claims have to be combined or the same has to be made against both the husband and the father-in-law as in the present case, could it be said that the jurisdiction of the Family https://www.mhc.tn.gov.in/judis 23 CRP.No.926/2016 Court would Stand ousted? My answer is an emphatic no. The suit will remain as a suit against the spouse for recovery of the property of the wife. No doubt even at the time of the marriage the property was handed over not only to the husband but also to the father-in- law. But that would not make the suit anything Mother than for recovery of the property of a party to the marriage from the other party to the marriage and persons connected with him or related to him. It is notorious that in our State, what is called Streedhanam or whit is understood as the share of the bribe in the properties of her father is normally handed over at the time of the marriage not to the husband but to the father-in-law who receives it on behalf of the husband. It is really a case of the father- in-law acting for and on behalf of the husband while hereceives the property of the wife. In the case of the streedhanam paid at the time of the marriage of a Christian woman, this Court has held that the father- in-law would be holding the property as a trustee for the bride. Taking in the sweep of the Family Court Act and the objects sought to be achieved by the Family Courts Act, I am of the view, that merely because a stranger is also impleaded in the suit on the ground https://www.mhc.tn.gov.in/judis 24 CRP.No.926/2016 that the property of the wife or a portion of it also been handed over to him the suit cannot be entertained by the Family Court is not warranted. In any View such a construction of the statute to confine the jurisdiction of the Family Court only to the other spouse and not to anyone else who acts either for that spouse or under that spouse would tend to defeat the very object of the enactment of the Act and the establishment of the Family Courts. One of the important aims of the setting up of the Family Courts Act is to bring about a reconciliation between the spouses if possible and to permit them to separate with dignity only if all attempts at conciliation fail. Can there not be a conciliation even in a case where the wife sues her husband and her father-in-law for of the property which she claims to be hers? The answer can only be in the affirmative. There cannot be any doubt that a special machinery has been constituted by the Family Court Act for counselling and for bringing about a conciliation between the spouses. Then, Family Court Judge is charged with the duty to attempt conciliation. Should the spouses be deprived of that machinery specially provided by the family Courts Act and not available in that Form in the https://www.mhc.tn.gov.in/judis 25 CRP.No.926/2016 ordinary Civil Court merely because one of them is compelled to sue not only the other spouse but also a close relation of that spouse or a confident or assignee of that spouse? The answer can only Be ‘no’ since an answer otherwise would mean that the very scheme of the Act would stand defeated and the spouse who is sued can always take up the stand that he had made over the property to a stranger and when the suing spouse is compelled to implead that person, the suit would be taken out of the purview of the Family Court. I have therefore no hesitation in holding that so long as the suit is by one spouse against the other the suit would be maintainable in the Family Court even if for the purpose of seeking relief in respect of the cause of action put forward in the suit, the suing spouse is forced to implead persons other than the other spouse or including the close relatives of the other spouse.'' (20) A Three Member Bench of Hon'ble Supreme Court, in K.A.Abdul Jaleel V. T.A.Shahida reported in 2003 [2] MLJ 202 [SC] : 2003 [4] SCC 166, while considering the issue whether the Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties, has discussed the scope of Section 7 https://www.mhc.tn.gov.in/judis 26 CRP.No.926/2016 of Family Courts Act [the respondent/wife filed a suit for transferring a property in her name which according to her was purchased out of cash provided by her and by selling her gold jewels by husband], held as follows:-
''10. The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of objects and reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts matters relating to the property of the spouses or either of them. Section 7 of the Act provides for the jurisdiction of the Family Court in respect of suits and proceedings as referred to in the Explanation appended thereto. Explanation (c) appended to Section 7 refers to a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them.
11. The fact of the matter, as noticed hereinbefore, clearly shows that the dispute between https://www.mhc.tn.gov.in/judis 27 CRP.No.926/2016 the parties to the marriage arose out of the properties claimed by one spouse against the other. The respondent herein made a categorical statement to the effect that the properties were purchased out of the amount paid in cash or by way of ornaments and the source of consideration for purchasing the properties described in Schedules ‘A’ and ‘B’ of the suit having been borne out of the same, the appellant herein was merely a trustee in relation thereto and could not have claimed any independent interest thereupon. It is also apparent that whereas the agreement marked as Exhibit A-1 was executed on 17-9-1994, the appellant pronounced talaq on 1-11-1995. The wording “disputes relating to marriage and family affairs and for matters connected therewith” in the view of this Court must be given a broad construction. The Statement of objects and reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean the properties claimed by the parties thereto as a spouse of the other;
irrespective of the claim whether the property is claimed during the subsistence of a marriage or https://www.mhc.tn.gov.in/judis 28 CRP.No.926/2016 otherwise.
12. The submission of the learned counsel to the effect that this Court should read the words “a suit or proceeding between the parties to a marriage” as parties to a subsisting marriage, in our considered view would lead to miscarriage of justice.
13. The Family Court was set up for settlement of family disputes. The reason for enactment of the said Act was to set up a court which would deal with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. The said Act was enacted despite the fact that Order 32-A of the Code of Civil Procedure was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976, which could not bring about any desired result.
14. It is now a well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of https://www.mhc.tn.gov.in/judis 29 CRP.No.926/2016 the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up.'' (21) Learned counsel appearing for the petitioner/husband relied upon a judgment of a Division Bench of Rajasthan High Court at Jodhpur, in Smt.Payal Sancheti and Another Vs. Harshardhan Sancheti dated 30.07.2008 in CMA.No.368/2008, wherein the wife's suit for permanent injunction restraining her in-laws from interfering with her possession under Section 7 of Family Courts Act in respect of the house of her father-in-law alleging that the wife is entitled to live in the matrimonial home. The suit for injunction is to protect her possession and to restrain the defendants from alienating the same. The Lower Court dismissed the suit under Order 7 Rule 11 of CPC as the dispute is not alleged to be with respect to the property of the parties or of either of them. On Appeal, the Rajasthan High Court held as follows:-
''32.......Admittedly the house in which the husband resides, belongs to father of the husband, and the appellant has not claimed any right of maintenance for herself, rather she is claiming to be living in the house of father in law, and by claiming https://www.mhc.tn.gov.in/judis 30 CRP.No.926/2016 injunction purportedly against the husband, is indirectly seeking injunction against in-laws, restraining them from dispossessing her, and from alienating the suit property, and does not purport to claim any right of maintenance.
33. Thus, considered from any stand point, in our view, apart from the fact, that the Family Court does not have jurisdiction to entertain the present suit, as the controversy is not covered by either of Explanation (c) or (d), appended to Section 7(1), even otherwise, the plaint does not disclose any cause of action, and for this additional reason, we upheld the order of dismissal under O. 7 Rule 11 C.P.C.'' FACTS IN THE PRESENT CASE:-
(22) Learned counsel appearing for the petitioner/husband submitted that the petitioner filed HMOP.No.84/2015 before Sub Court at Cheyyar, for divorce and the wife filed HMOP No.1728/2016 before Principal Judge, Family Court at Chennai for restitution of conjugal rights and both proceedings have been transferred to the file of Sub Court, Poonamallee, by order of this Court in Tr.CMP.No.681/2015 and the husband was directed to pay a sum https://www.mhc.tn.gov.in/judis 31 CRP.No.926/2016 of Rs.30,000/- towards litigation expenses and a further sum of Rs.1500/- as conveyance for each hearing. The respondent wife filed a petition under Protection of Women from Domestic Violence Act, 2005, before VIII Metropolitan Magistrate in DVC.No.86/2019 and the same is quashed insofar as it is against the mother of petitioner in Crl.OP.No.31911/2019. It is stated that the petitioner is directed to pay a sum of Rs.5,000/- towards maintenance. This Civil Revision Petition is filed in the year 2016 under Article 227 of the Constitution of India to dismiss the suit in OS.No.296/2015 on the file of III Additional Family Court, Chennai, for permanent injunction restraining the petitioner from alienating the suit property which is a Flat measuing 275 sq.ft., at South Boag Road, T.Nagar, on the allegation that the intention of petitioner is to leave her homeless and penniless in the streets by alienating the suit property. It is also stated that the petitioner is trying to alienate the property only to deprive the respondent/wife of her matrimonial residence.
(23) The present suit is not a proceeding falls under Section 26 of https://www.mhc.tn.gov.in/judis 32 CRP.No.926/2016 D.V.Act. The suit is not for maintenance. The prayer for injunction is not consequential to any declaration or a prayer for maintenance. The wife admits that the property was purchased by the petitioner and she does not claim any proprietory right. The petitioner herein admits that the respondent is not in possession or residing in the suit property at present. Admittedly, the respondent wife has filed a petition alleging domestic violence and no other relief under Sections 18 to 21 is sought for. The judgment of Delhi High Court deals with a situation where the parents-in-law of wife filed the suit for injunction restraining the daughter-in-law from entering/interfering with their possession and Court has only considered the scope of expression ''arising out of''. All the other judgments referred to and relied upon by Mr.Bharath Kumar, cannot be taken as precedents for the proposition that the Family Court has inherent jurisdiction to entertain a suit where the wife seeks perpetual injunction against her husband restraining him from alienating or disposing off the shared household as contemplated under Section 19 of DV Act, 2005, which can be https://www.mhc.tn.gov.in/judis 33 CRP.No.926/2016 passed in an application under Section 12[1] of DV Act, 2005, by a Magistrate on being satisfied that domestic violence has taken place. The protection order cannot b e passed by a Family Court where proceedings are pending before Metropolitan Magistrate alleging domestic violence. No issue or dispute between husband and wife is mentioned in the plaint with respect to the suit property.
A suit for perpetual injunction normally fall under Section 38 [Chapter VIII] of Specific Relief Act. Only if the plaintiff establishes her absolute right under common law, she may sue for perpetual injunction. Wife may seek maintenance and seek charge over the property of husband. The relief of permanent injunction restraining husband from alienating the property does not fall within the jurisdiction of Family Court. If the suit does not fall under explanations [c] or [d] of Section 7[1], the Family Court has no jurisdiction. If the proceedings before the Family Court suffers from lack of jurisdiction, a revision petitioner under Article 227 of the Constitution is maintainable. However, if the plaint is struck off for want of jurisdiction, it does not mean that the plaintiff is https://www.mhc.tn.gov.in/judis 34 CRP.No.926/2016 without any remedy to protect her rights under other statutes. (24) Hence, this Court upholds the view expressed by Hon'ble Mr. Justice S.NAGAMUTHU [as he then was] in the case of B.Gajendran V. Adhilakshmi in CRP.[PD]No.142/2013 dated 03.04.2013.
(25) We therefore, answer the reference by holding that Family Court has no inherent jurisdiction under Section 7 of the Family Courts Act, to entertain a suit by wife against husband for perpetual injunction restraining the husband from alienating the residential property of husband when the wife and husband were living together for some time and a revision petition is maintainable under Article 227 of the Constitution of India to strike of the plaint in such a suit.
(26) Since the matter came up before us by way of reference even before issuing notice to the respondent, the Civil Revision Petition may be posted before the Regular Court to dispose of the revision in the light of this order on reference after issuing notice to the respondent.
https://www.mhc.tn.gov.in/judis 35 CRP.No.926/2016 (27) Before parting with the case, this Court place it on record its appreciation for the assistance rendered by Mr.Bharath Kumar, learned Amicus Curiae who assisted this Court with an impressive preparation in the decision making process by referring to every fact that is relevant and every judgments that will have some bearing in understanding the scope of several provisions of the Family Courts Act, Protection of Women from Domestic Violence Act and other statutes.
[SSSRJ] [AANJ]
19.04.2023
AP
Internet : Yes
To
1.The III Additional Judge
Family Court, Chennai
https://www.mhc.tn.gov.in/judis 36
CRP.No.926/2016
S.S.SUNDAR, J.
AND
A.A.NAKKIRAN, J.
AP
Order in
CRP.No.926/2016
19.04.2023
https://www.mhc.tn.gov.in/judis 37