perusal of the Record & Proceedings, it appears that following points arise
for determination in this family court appeal:
(I) Whether the family court has jurisdiction to decide the
petition filed by the appellant for the declaration that he is
not the husband of the respondent ?
(II) What order ?
For answering the points for determination, it would not be
necessary to consider the pleadings of the parties in detail. Suffice it is to
state that the appellant has filed this petition for a declaration that the
respondent is not his wife. In the said petition, the respondent has filed a
counter claim seeking a declaration that she is the legal wife of the
appellant. The appellant and the respondent have pleaded their
respective cases for seeking the aforesaid relief in the petition and the
counter claim. It would, therefore, be necessary to consider the
provisions of Section 7 of the Act that confers the jurisdiction on the
family court. The relevant provisions of Section 7 of the Act read thus:
“Section 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 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.
(2) ................
(a) ................
(b) ................”
It is apparent from the provisions of Section 7 of the
Act that the family court shall have the jurisdiction in a suit
or proceedings between the parties to a marriage for a decree of nullity
of marriage or restitution of conjugal rights or judicial separation
or dissolution of marriage. So also, in view of Clause (b) of the
explanation, the family court would have jurisdiction to decide a suit or
proceedings for a declaration as to the validity of the marriage or as to
the matrimonial status of any person. It is apparent from a reading of
Clause (b) to the Explanation that the family court would have
jurisdiction to entertain and decide a suit or proceedings for a
declaration as to the matrimonial status of any person. In the instant
case, the appellant has sought a declaration that the respondent is not his
wife and the respondent has sought a declaration in her counter claim
that she is the legal wife of the appellant. Since the parties to the
proceedings had sought a declaration in regard to their matrimonial
status, the family court had jurisdiction to entertain and decide the
petition filed by the appellant in view of Explanation (b) to Section 7(1)
of the Act. Unfortunately, the family court did not advert its mind to
Explanation (b) of Section 7(1) and dismissed the petition on the ground
of absence of jurisdiction by referring to Explanation (a) and (c) of
Section 7(1) of the Act. We find that the family court committed a
jurisdictional error in dismissing the petition filed by the appellant for a
declaration that the respondent is not his wife and the respondent’s
counter claim that the respondent is the legal wife of the appellant solely
on the ground that since the parties had not pleaded about the
performance of their marriage, it has no jurisdiction to entertain and
decide the same.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL No. 214/2014
Shri Mukund S/o Sudam Borkar,
V
Smt.Pradnyasheela W/o Ramesh Ghate,
CORAM :SMT.VASANTI A NAIK AND
V.M. DESHPANDE, JJ.
DATE : 12TH JANUARY, 2017.
Citation: 2017(3) ALLMR 227
The short question involved in this family court appeal is
whether the family court has jurisdiction to decide the question whether
the respondent is the legally wedded wife of the appellant.
2. By this family court appeal, the appellant challenges the
judgment of the family court dismissing the petition filed by the
appellant for a declaration that he is not the husband of the respondent
and that the respondent has no right to trespass in the house owned by
him.
3. The relevant facts for deciding the family court appeal are
stated thus :
The appellant had filed a petition before the Family Court,
Nagpur for a declaration that the respondent is not the legally wedded
wife of the appellant and that she does not have any right to trespass in
the house owned by him. According to the appellant, when the appellant
was posted as a lecturer in the Institute of Science College, Nagpur, the
respondent seduced the appellant into a relationship. It is pleaded that
since the appellant was single, the appellant had a livein relationship
with the respondent for some time and a girl child viz. Twinkle was
born from the relationship. It is pleaded by the appellant that the
relationship between the appellant and the respondent got strained and
despite the strained relationship, the respondent was trying to force an
entry in the house owned by the appellant and was behaving in an unruly
manner, thereby threatening the peace and harmony in the house. The
appellant, therefore, sought for a declaration that the respondent is not
the wife of the appellant and that she should not trespass in the house
owned by him. The appellant claimed that the husband of the
respondent, viz. Shri Ramesh Ghate was alive and the marriage between
the respondent and Shri Ramesh Ghate was subsisting and hence, there
could not have been a ‘husbandwife’ relationship between the appellant
and the respondent.
4. The respondent filed the written statement and also filed a
counter claim. The respondent denied the claim of the appellant and
sought a declaration that she is the wife of the appellant. The respondent
pleaded that she was not aware about the whereabouts of her former
husband Shri Ramesh Ghate and there was no relationship between
herself and her former husband since 1994. It is pleaded by the
respondent that since the respondent had not heard about her former
husband for fourteen years, the marriage between the respondent and her
former husband did not subsist. On the aforesaid pleadings, the
respondent sought a declaration that the respondent is the legally wedded
wife of the appellant.
5. On the aforesaid pleadings of the parties, the family court
framed the issues. The parties tendered the evidence and the family
court, by the judgment dated 21.03.2012, dismissed the petition filed by
the appellant on the ground that it did not have the jurisdiction to
entertain and decide the petition as none of the parties had pleaded that a
marriage was solemnized between them. The family court held that since
it was not the case of the parties that their marriage was performed at any
point of time, the family court did not have jurisdiction to entertain and
decide the petition. The family court held that the petition filed by the
appellant could not be decided by the family court in view of the
provisions of Section 7 of the Family Courts Act, 1984.
6. Shri Shukla, the learned counsel for the appellant, submitted
that the family court has failed to consider the relevant provisions of
Section 7 of the Family Courts Act before dismissing the petition filed by
the appellant on the ground that it had no jurisdiction to decide the same.
It is stated that as per Explanation (b) to Section 7(1) of the Act, a suit or
proceedings for a declaration as to the validity of a marriage or as to the
matrimonial status of any person could have been decided by the family
court. It is submitted that the family court failed to consider the
provisions of Explanation (b) to Section 7(1) of the Act before dismissing
the petition filed by the appellant. It is prayed that by allowing this
appeal, the matter may be remanded to the family court for a decision in
the petition filed by the appellant, on merits.
7. Mrs Munshi, the learned counsel for the respondent,
supported the order of the family court. It is submitted that since none of
the parties had pleaded that their marriage was performed, the family
court rightly dismissed the petition filed by the appellant for the
declaration that the appellant was not the husband of the respondent.
8 On hearing the learned counsel for the parties and on a
perusal of the Record & Proceedings, it appears that following points arise
for determination in this family court appeal:
(I) Whether the family court has jurisdiction to decide the
petition filed by the appellant for the declaration that he is
not the husband of the respondent ?
(II) What order ?
For answering the points for determination, it would not be
necessary to consider the pleadings of the parties in detail. Suffice it is to
state that the appellant has filed this petition for a declaration that the
respondent is not his wife. In the said petition, the respondent has filed a
counter claim seeking a declaration that she is the legal wife of the
appellant. The appellant and the respondent have pleaded their
respective cases for seeking the aforesaid relief in the petition and the
counter claim. It would, therefore, be necessary to consider the
provisions of Section 7 of the Act that confers the jurisdiction on the
family court. The relevant provisions of Section 7 of the Act read thus:
“Section 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 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.
(2) ................
(a) ................
(b) ................”
It is apparent from the provisions of Section 7 of the
Act that the family court shall have the jurisdiction in a suit
or proceedings between the parties to a marriage for a decree of nullity
of marriage or restitution of conjugal rights or judicial separation
or dissolution of marriage. So also, in view of Clause (b) of the
explanation, the family court would have jurisdiction to decide a suit or
proceedings for a declaration as to the validity of the marriage or as to
the matrimonial status of any person. It is apparent from a reading of
Clause (b) to the Explanation that the family court would have
jurisdiction to entertain and decide a suit or proceedings for a
declaration as to the matrimonial status of any person. In the instant
case, the appellant has sought a declaration that the respondent is not his
wife and the respondent has sought a declaration in her counter claim
that she is the legal wife of the appellant. Since the parties to the
proceedings had sought a declaration in regard to their matrimonial
status, the family court had jurisdiction to entertain and decide the
petition filed by the appellant in view of Explanation (b) to Section 7(1)
of the Act. Unfortunately, the family court did not advert its mind to
Explanation (b) of Section 7(1) and dismissed the petition on the ground
of absence of jurisdiction by referring to Explanation (a) and (c) of
Section 7(1) of the Act. We find that the family court committed a
jurisdictional error in dismissing the petition filed by the appellant for a
declaration that the respondent is not his wife and the respondent’s
counter claim that the respondent is the legal wife of the appellant solely
on the ground that since the parties had not pleaded about the
performance of their marriage, it has no jurisdiction to entertain and
decide the same.
9. Hence, for the reasons aforesaid, the family court appeal is
partly allowed. The judgment of the family court is hereby quashed and
set aside. The family court is directed to decide the petition filed by the
appellant and the counter claim filed by the respondent on merits, in
accordance with law. In the circumstances of the case, there would be no
order as to costs.
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