Madhya Pradesh High Court
Smt. Reena Tuli vs Naveen Tuli on 20 March, 2019
Equivalent citations: AIR 2019 MADHYA PRADESH 169, (2019) 3 HINDULR 511
Author: B.K. Shrivastava
Bench: B.K. Shrivastava
(1)
First Appeal No. 382/2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
First Appeal No. : 382/2018
Parties Name : Smt. Reena Tuli -Versus- Naveen Tuli
Bench Constituted : Hon'ble Shri Justice J.K.Maheshwari &
Hon'ble Shri Justice B.K. Shrivastava
Judgment delivered by : Hon'ble Shri Justice J.K.Maheshwari
Approved for reporting : Yes
Counsel for the petitioner : Shri D.S.Baghel, Advocate.
Counsel for the respondent : Shri Siddharth Sharma, Advocate
Law laid down:
➢ The suit seeking restitution of conjugal right cannot be dismissed as not
maintainable merely on denial of the marriage in the written statement. The said
issue is required to be adjudicated after framing the issues and adducing the
evidence by the parties. In case, it is found that the marriage has not been
proved, the restitution may be refused because solemnization of the marriage has
not been proved. But at the initial stage, dismissal of suit as not maintainable
merely because the marriage is denied, is wholly unjustified. The judgment of
Chhattisgarh High Court in the case of Santosh Kumar Pandey Versus Smt.
Ananya Pandey reported in AIR 2013 Chh 95 has not been followed in view of
the decisions of the Supreme Court in the cases of Pallavi Bhardwah Versus
Pratap Chouhan reported in AIR 2012 SC (supp) 441; K.A. Abdul Jaleel
Versus T.A. Shahida reported in (2003) 4 SCC 166.
➢ In a suit for restitution of conjugal right either the husband or the wife may
apply for, if they have withdrawn from the society of each other without
reasonable excuse. On filing a petition in this regard, the District Court or the
Family Court "on being satisfied of the truth of the statements made in the
petition" would not mean the truthfulness of the reason of withdrawal from the
society of each other. The word "statements" indicate plural, however, the
averments essential is that marriage of the spouse inter se may be adjudicated as
per the spirit of Section 9 of the Hindu Marriage Act.
➢ In case, the specific procedure has not been prescribed in the Family
Courts Act to decide the suit as per Section 10, the procedure prescribed in the
Code of Civil Procedure shall be applicable. On denial of the pleading, the
dismissal of the suit without framing the issue and adducing the evidence would
contrary to the procedure as contemplated under Section 10 of the Family Courts
Act.
Significant Paragraph Nos. : 12 to 20
**********
(2)
First Appeal No. 382/2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
Division Bench : Hon'ble Shri Justice J.K.Maheshwari &
Hon'ble Shri Justice B.K. Shrivastava
**
First Appeal No. 382/2018
Smt. Reena Tuli
-Versus-
Naveen Tuli
**************
Shri D.S.Baghel, Advocate for the appellant.
Shri Siddharth Sharma, Advocate for the respondent.
**************
JUDGMENT
(20/03/2019) Per : J.K. Maheshwari, J.
1. This first appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the HMA) arises out of the judgment and decree dated 12.1.2018 passed by First Additional Principal Judge, Family Court, Jabalpur in Hindu Marriage Case No. 336-A/2013 by which the suit filed by the appellant/wife seeking restitution of conjugal right has been dismissed as not maintainable in view of the judgment of Division Bench of Chhattisgarh High Court in the case of Santosh Kumar Pandey Versus Smt. Ananya Pandey reported in AIR 2013 Chh 95.
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2. On perusal of the impugned judgment, it reveal that the factum of performance of marriage pleaded by the appellant was denied in the written statement by defendant, however, observed that on having a denial of performance of marriage, petition under Section 9 of the HMA is not maintainable as per the judgment in the case of Santosh Kumar Pandey (supra). Therefore, the Family Court allowing the application filed by the respondent on 31.7.2014, dismissed the suit for restitution of conjugal right. While passing the said order, the Court has also referred the provision of Section 10(3) of the Family Courts Act whereby the Family Court is not prevented from laying down its own procedure.
3. Learned counsel appearing for the appellant contends that the jurisdiction of the Civil Court is conferred to the Family Court in respect of the suits and proceedings of the nature referred to in the Explanation of Section 7 (1) of the Family Courts Act and the said Court would be deemed to be the District Court or subordinate Civil Court to which jurisdiction of the Family Court is extended. The Explanation specifies that suits and proceedings between the parties to a marriage may be brought; for a decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage; for a declaration as to the validity of a marriage or as to the matrimonial status of any person; with respect to the property of the parties or of either of them; for an order or injunction in circumstances (4) First Appeal No. 382/2018 arising out of a marital relationship; for a declaration as to the legitimacy of any person; for maintenance or in relation to the guardianship of the person or the custody of, or access to, any minor. As per Section 8 of the Family Courts Act, after establishment of the Family Court, the jurisdiction of the District Court or subordinate Civil Court in respect of any suit or proceeding of the nature referred to in the Explanation of Section 7(1), has been excluded and given to the Family Court to the area to which it extends.
4. In such circumstances, if any suit is filed seeking restitution of conjugal rights either by husband or the wife alleging that they have withdrawn from the society of other, may approach to the Family Court and on being satisfied regarding truthfulness of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree the restitution of conjugal right accordingly. Therefore, in a suit for restitution of conjugal right the existence of marriage is a sine qua non but on denial of the said marriage, the satisfaction is required to be recorded regarding truthfulness of the said statements and the legal ground for grant of such relief, which can be proved by either party. The marriage may be proved by customs or ceremonies sacraments but mere denial of the marriage without recording satisfaction to the truthfulness of the said denial, suit cannot be dismissed. The judgment of the Chhattisgarh High Court in the case of Santosh (5) First Appeal No. 382/2018 Kumar Pandey (supra) may have a persuasive value but it is not binding upon this Court, therefore, considering the basic provisions of the Family Courts Act or HMA the impugned judgment passed by the trial Court may be set aside and the suit may be restored to its file for decision on merit. In support of the said contention, reliance has been placed on a judgment of this Court in Pushpalata Versus Hiralal reported in 1987 (2) MPWN 69 and on a Division Bench judgment of this Court in F.A. No. 548/2003 (Devendra Kumar Patle Versus Smt. Manjushri Patle) decided on 3.12.2007. Reliance has also been placed on the judgments of the Supreme Court in Pallavi Bhardwah Versus Pratap Chouhan reported in AIR 2012 SC (supp) 441; K.A. Abdul Jaleel Versus T.A. Shahida reported in (2003) 4 SCC 166 and Balram Yadav Versus Fulmaniya Yadav reported in (2016) 3 SCC 308.
5. On the other hand, learned counsel appearing on behalf of the respondent submits that as per the judgment of Division Bench of Chhattisgarh High Court which was a part of Madhya Pradesh High Court, now separated, in the case of Santosh Kumar Pandey (supra), it is observed that in a suit for restitution of conjugal right, the factum of marriage must be admitted and the Court has to decide, whether either party has withdrawn from the society of other without any reasonable cause or not. The Court further observed that in such proceeding, the Court cannot decide the issue regarding (6) First Appeal No. 382/2018 solemnization of marriage inter se parties, therefore, the said judgment is binding upon this Court. However, prayer is made to dismiss the appeal maintaining the impugned judgment.
6. After having heard learned counsel appearing for both the parties, the moot question arise for consideration is whether in a suit seeking restitution of conjugal right, as provided in Explanation (a) to Section 7(1), the marriage inter se parties, if not admitted in the pleading, is not maintainable and the parties to the suit are required to take recourse as per Explanation (b) to Section 7(1) of the Family Courts Act. To advert the arguments for answer to the said question, provisions of the Family Courts Act dealing with the jurisdiction, exclusion of jurisdiction to the Civil Court and to confer the said power to the Family Court, are required to be taken note of.
7. Chapter III, Section 7 of the Family Courts Act confer the jurisdiction to Family Courts. Section 7 is relevant, therefore, it is reproduced 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 (7) First Appeal No. 382/2018
(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 refrred 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 (8) First Appeal No. 382/2018 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.
8. On perusal of the aforesaid, it is clear that the Family Court shall exercise the jurisdiction, which may be exercisable by the District Court or 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 for the said purpose the Family Court shall be deemed to be the District Court or subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. The Explanation further clarifies that what may be the nature of the suits or proceeding, which may be brought before the Family Court. It states "a suit or proceeding between the parties to a marriage may be brought"; for a decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage; for a declaration as to the validity of a marriage or as to the matrimonial status of any person; with respect to the property of the parties or of either of them; for an order or injunction in circumstances arising out of a marital relationship; for a declaration as to the legitimacy of any person; for maintenance or in relation to the guardianship of the person or the custody of, or access to, any minor. As per sub-section (2) of the Section 7, certain jurisdiction of a (9) First Appeal No. 382/2018 Magistrate First Class under Chapter IX of the Code of Criminal Procedure has also been conferred to the Family Court.
9. Section 8 specifies the power of exclusion of jurisdiction in a pending proceeding to the Family Court, therefore, it is relevant, however, reproduced as under:-
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 sub-section (10 of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Proceure, 1973 (2 of 1974),-
(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had (10) First Appeal No. 382/2018 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.
10. As per Section 8, on establishment of the Family Court, the jurisdiction of the District Court or subordinate Court referred to in sub-section (1) of Section 7 is excluded to such area, with respect to suit or proceeding of the nature referred in the Explanation to Section 7(1). Thus on wake of the provisions of the Family Courts Act and in the light of Section 9 of the Code of Civil Procedure, it is clear the jurisdiction conferred to the Civil Court would be exercisable, untill by an enactment, either expressly or impliedly taken away, thus on exclusion, the Civil Court shall not take cognizance in the proceedings. As per Section 20, the Family Courts Act, is having overriding effect inter alia stating that notwithstanding anything inconsistent with the provisions of the Family Courts Act contained in any other law after commencement of the Family Courts Act, therefore, it can safely be concluded that the jurisdiction which was conferred to the Civil Court entertaining the suit or proceeding of either of the parties of marriage has been now conferred to the Family Court on its establishment in the said area and the nature of a suit or proceeding between the parties to a marriage for a decree sought for as specified in Explanation (a) to (g) of Section 7(1) of the Family Courts Act. Hence, as per Explanation (a) of Section 7(1), a suit or (11) First Appeal No. 382/2018 proceeding between the parties to a marriage seeking decree of restitution of conjugal right may be brought before the Family Court by either party.
11. Section 9 of the HMA deals with the restitution of conjugal right. The said provision is relevant and required to be referred to answer the question posed, therefore, it is reproduced as under:-
9. Restitution of conjugal rights.- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation - Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
12. Thus on perusal, it is clear that either the husband or the wife without reasonable excuse if withdraws from the society of other and whosoever is aggrieved may file a petition to the District Court now Family Court on its establishment to ask for the relief of restitution of conjugal right. On receiving the said petition, the Court is required to satisfy the "truthfulness of the statements made in the petition" and if the "ground raised has not been proved in lieu of the defence taken by other side, a decree of restitution of conjugal right may be granted. Its explanation only clarifies that the burden of proving reasonable (12) First Appeal No. 382/2018 excuses taken by either party for withdrawal from the society of other shall be on such person who has withdrawn from the society. Thus, either husband or wife, who wish to withdraw from the society of other must plead for the marriage and the reason of the withdrawal made by other on which the satisfaction to the truthfulness of the statements made in such petition is required to be adjudged by the District Court or by the Family Court. The satisfaction of words "truthfulness of statements", indicate the plurality of facts for recording satisfaction to the truthfulness, therefore, it would include the performance of marriage, and the grounds of withdrawal from the society of others and on rebuttal of those allegation, if ground of refusal of restitution is not available, after adducing evidence by the parties, the Court may pass the judgment granting decree of restitution of conjugal rights.
13. Hon'ble the Apex Court in the case of Pallavi Bhardwah (supra) observed that the husband has taken a plea of marriage, which was rebutted by the wife taking defence that the husband is already married and having one daughter, who is studying in school. The trial Court held that since there is no marriage, there can be no restitution, however, dismissed the suit. On filing an appeal, the High Court without recording any finding about the validity of the marriage and its validity was denied by the appellant, give certain directions, which were not found as per law by the Apex Court, therefore, set aside the order passed by the High Court. Meaning thereby in a suit (13) First Appeal No. 382/2018 for restitution of conjugal right, the existence of marriage on denial, may be examined within the phrase "satisfaction of truthfulness to the said statements" along with the ground on which the plaintiff pleaded withdrawal from the society by the defendant without any reasonable excuse, and on satisfied, the restitution either may be granted or refused.
14. The Apex Court in the case of K.A.Abdul Jaleel (supra) clarified about the jurisdiction of the Family Court under Explanation
(a) of Section 7(1) of the Family Courts Act. The Court observed that "a suit or proceeding between the parties to a marriage do not mean the subsisting marriage, if said interpretation is taken note of, it would lead to miscarriage of justice". Thus in a suit or proceeding between the parties to a marriage, the requirement to prove ingredient looking to the nature of the suit or proceeding may be dealt with by the Family Court. Mere denial by other side would not lead to a conclusion that a suit or proceeding between the parties to marriage , which has been brought, cannot be decided by the Family Court. The Court further said, the Explanation of Section 7(1) of the Family Courts Act clarifies the nature of the suit and proceeding to which the jurisdiction can be exercised by the Family Court. If a suit for restitution of conjugal right is filed without pleading existence of marriage and the ground, on which the either party has withdrawn from the society of the other, is found justified, the restitution may be allowed but mere denial of the (14) First Appeal No. 382/2018 marriage would not ip so facto made the suit not maintainable and to relegate the party to take recourse of Explanation (b) of sub-section (1) of Section 7. In case marriage has not been proved, the restitution can be refusal by the Court.
15. It is to observe here that when the party comes to the Court by filing a suit or proceeding, the statements of fact may be made by the plaintiff to which the written statement may be filed by the other side. The said suit and proceeding shall be decided by a procedure applicable to the Family Court. As per Section 10, subject to the provisions of the Family Courts Act and the rules, the provision of Code of Civil Procedure and any other law for the time being in force shall apply to the suit or proceeding. On denial of the pleading, the issues be framed and the evidence be recorded, is the procedure prescribed under the Code of Civil Procedure. In this regard, under the Family Courts Act, no separate procedure has been prescribed, therefore, the provision of Code of Civil Procedure would be applicable in the case.
16. Thus, after pleading of the parties and if either party denies those pleading, the issues may be formulated and the evidence be taken by the Court which may be decided after recording satisfaction to the truthfulness of the statements made by the parties. Mere denial by the other side regarding marriage, the suit or proceeding filed by either party cannot be dismissed on the ground of non-maintainability. (15) First Appeal No. 382/2018 If the said interpretation is allowed to stand refusing to maintain suit or grant of decree, it would result into absurdity.
17. The judgment of Santosh Kumar Pandey (supra) of Chhattisgarh High Court contemplates that the marriage between the parties must be admitted for a suit of restitution of conjugal right. Looking to the provisions of Sections 7 and 8 of the Family Courts Act and Section 9 of the HMA as discussed hereinabove, the observation of the Court regarding admission of marriage has neither been specified nor it may be an intention of the legislature. The observation made by the Court in the said judgment that "Court has to decide that one party has withdrawn from the society of other without any reasonable cause, would make the suit or proceeding outside the purview of Section 9 of the HMA due to denial of existence of marriage", do not appear to be a plausible reasoning in view of the judgments of the Supreme Court as referred hereinabove.
18. A Division Bench of this Court in the case of Devendra Kumar Patle (supra) in a suit for restitution of conjugal right has upheld the finding recorded by the trial Court regarding solemnization of the marriage by the appellant with the defendant and granted restitution of conjugal right. Similar is the position in a case of Pushplata (supra). Though the issue of maintainability on denial of marriage was not dealt with in the aforesaid cases but the factum of marriage was (16) First Appeal No. 382/2018 adjudicated on denial in a suit or proceeding fall under Exception (a) of sub-section (1) of Section 7, which may be for a decree of nullity, restitution of conjugal right, judicial separation or dissolution of marriage. The grounds for respective relief may be different but existence of marriage inter se parties is required to be adjudicated applying the procedure as contemplated in the Code of Civil Procedure recognized by Section 10 of the Family Courts Act. Therefore, we respectfully disagree with the view taken by the Chhattisgarh High Court in the case of Santosh Kumar Pandey (supra), which in our opinion, is not based on sound reasoning. It is required to observe that the view taken by the Chhattisgarh High Court may have persuasive value but if it is not based on sound reasoning, this Court is not bound to accept the same and may take different view.
19. In view of the foregoing discussion in reference to the judgments of Hon'ble Supreme Court in the case of Pallavi Bhardwah (supra) and K.A. Abdul Jaleel (supra) and also of this Court in the case of Devendra Kumar Patle (supra) and Pushplata (supra), the judgment and decree passed by the trial Court dismissing the suit as not maintainable relying the judgment of Chhattisgarh High Court in the case of Santosh Kumar Pandey (supra), is hereby set aside.
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20. Accordingly, this appeal succeeds and is hereby allowed. The trial Court is directed to restore the suit and on framing the issues and giving opportunity to lead the evidence to the parties the suit be decided on merit. It is made clear that this Court has not expressed any opinion regarding solemnization of marriage by the parties. However, the said issue is required to be decided by the trial Court in a proceeding for restitution of conjugal right and if found that the marriage has not been solemnized the suit for restitution of conjugal right may be rejected.
(J.K. Maheshwari) (B.K. Shrivastava)
Judge Judge
PB
Digitally signed by
PRADYUMNA BARVE
Date: 2019.03.20
18:27:45 +05'30'