not have the jurisdiction to grant these reliefs of maintenance and
share in the matrimonial property. Under the provisions of the
Protection of Women from Domestic Violence Act, 2005, Section 26
confers concurrent jurisdiction on all the three forums, including the
Family Court, the Court of Judicial Magistrate First Class and also the
Civil Court, as regards the relief like the maintenance. So far as the
relief in respect of the matrimonial property or the property standing
in the joint name of both the spouses which is a fact in this case also,
the Civil Court is having the jurisdiction to entertain such suit. As a
matter of fact, according to learned counsel for the Appellant also,
Section 22 of 'The Specific Relief Act, 1963', clearly provides for
partition of such jointly owned property and under the provisions of
'The Specific Relief Act, 1963', it is the Civil Court, which is having the
jurisdiction to grant such decree. Therefore, it is not a case, where the
Civil Court was not having the jurisdiction to grant the reliefs which
the Respondent had claimed in the suit. Hence, it also cannot be said
that the trial Court has exceeded its jurisdiction.
31] As regards the reliance placed by learned counsel for the
Appellant on the judgment of the Hon'ble Supreme Court in the case of
Chandrika Singh (supra), there the issue framed was relating to the
tenancy, for which a separate competent authority is established and
the Civil Court's jurisdiction to decide such issue is excluded.
Therefore, it was held that such issue was required to be referred to
the tenancy authorities. Here, in the case, the jurisdiction of the Civil
Court is not excluded in any way to decide both these issues relating to
maintenance of the children and the right and share of the
Respondent in the jointly owned flat. The Civil Court was having very
much jurisdiction and therefore, there is no question of the trial Court
exceeding its jurisdiction or acting beyond its jurisdiction or
exercising the jurisdiction, which was not vested in it. Hence, on this
score also, the contention raised by learned counsel for the Appellant
cannot be accepted.
32] Third and the most important factor which is required to
be considered is that the law always expect that all the disputes
between the parties should be decided in one forum and in one
proceeding, so as to avoid the multiplicity of proceedings and the
waste of time, energy and money of the parties in prosecuting the
remedies in different forums. The right of maintenance and right in
the matrimonial property are the consequences of the marriage or its
dissolution. Those reliefs are incidental to the main relief of
'dissolution of marriage' and therefore, these reliefs are very much
integral part of decree of 'dissolution of marriage'. Hence, they are
required to be considered in the same proceeding, even if at times
such reliefs are not asked for also. It is well recognized that the award
of maintenance is the fall out of the decree of 'dissolution of marriage',
hence even if at times, the Respondent has not asked for the
maintenance, she is awarded that maintenance for herself and her
children while passing the decree for 'dissolution of marriage'. It may
be stated that, even when the decree is of 'Restitution of Conjugal
Rights' under Section 9 of 'The Hindu Marriage Act, 1955' there is
provision for award of maintenance under Order 21, Rule 33 of the
Code of Civil Procedure, till the decree is complied with. The point to
be stressed is that the relief of maintenance whether to the wife or the
children is incidental to the relief of 'dissolution of marriage'. Merely
because 'The Dissolution of Muslim Marriages Act, 1939', does not
mention that the Court is also having the jurisdiction or power to
grant such relief, it cannot be said that the Court is not having
jurisdiction to grant it, if it is incidental, claimed and the Court finds it
necessary to grant the same. Moreover, the right of maintenance
given to wife and the minor children under the provisions of the
Muslim Women (Protection of Rights on Divorce) Act, 1986, is in
addition to the right, which the minor children are having under
Muslim Law to get maintenance from the father. The law expects that
the parties should not be driven to approach the different forums but
in one forum itself they should be granted whatever reliefs to which
they are entitled.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST.) NO. 11650 OF 2017
WITH
CIVIL APPLICATION NO. 1570 OF 2017
IN
SECOND APPEAL (ST.) NO. 11650 OF 2017
Adnan Chara Vs Farhat Adnan
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
PRONOUNCED ON : 2nd AUGUST, 2018.
Citation:AIR 2018 Bom 282
1] With consent of learned counsel for the parties, heard
finally at the stage of 'admission' itself.
2] Admit.
3] A very short question raised for consideration in this
Second Appeal is, whether in a suit filed under Section 2 of the
Dissolution of Muslim Marriages Act, 1939, the Civil Court was
competent to grant the relief of maintenance and the relief in respect
of matrimonial property of the spouses, for which other statutory
enactments and other forums are available?
4] This Second Appeal is directed against the judgment and
order dated 06/12/2016 passed by the District Judge-5, Thane, in Civil
Appeal No.56 of 2016 which was preferred against the judgment and
order dated 11/02/2013 passed by the 9th Joint Civil Judge, Senior
Division, Thane, in Special Civil Suit No. 257 of 2011.
5] The said suit was filed by the Respondent-wife, herein,
under Section 2 of the Dissolution of Muslim Marriages Act, 1939
(hereinafter referred as, “the Act”), seeking divorce on the ground of
cruelty. In the plaint itself, she has claimed the return of 'Meher
Amount', the maintenance for her two minor children and half share
in the flat jointly owned by her and the Appellant.
6] The Appellant resisted the suit on all the counts but did not
raise any objection to the maintainability of the various reliefs claimed
in the plaint, apart from the decree for 'dissolution of marriage'. No
plea was raised before the trial Court that these reliefs relating to the
maintenance, meher and share in the jointly owned flat cannot be
asked for or granted in the suit filed under Section 2 of the Act, as
those reliefs are provided under different statutes. Conversely, the
suit was resisted on merits.
7] Both the parties led their evidence in support of their
respective contentions and thereafter, the trial Court was pleased to
decree the suit partially. The trial Court granted the decree for
dissolution of marriage and also for return of meher amount of
Rs.51,000/-. At the same time, the trial Court also awarded the
maintenance, at the rate of Rs.15,000/- per month each, to the two
minor children and 50% of the share in the jointly owned flat of the
parties. The trial Court further directed that either the Appellant can
give Respondent 50% of the market value of the said flat or by
appointment of Court Commissioner, the flat may be sold and the sale
proceeds be divided between the parties equally.
8] The Appellant challenged this judgment and decree of the
trial Court before the First Appellate Court and the First Appellate
Court vide its impugned judgment and decree dismissed the appeal on
all the counts and confirmed the judgment and order of the trial Court.
At this stage, it may also be stated that, no specific contention was
raised before the Appellate Court also that in a suit filed under Section
2 of the Act, the trial Court was not competent to grant other reliefs,
like, return of meher amount or the maintenance and the share in the
jointly owned flat.
9] In this Second Appeal, however, this contention is
advanced for the first time by learned counsel for the Appellant by
submitting that when admittedly as per the title of the suit filed before
the trial Court, it was a simpliciter suit filed under Section 2 of the Act,
the trial Court was not at all competent to grant any of the above said
reliefs. It is submitted that the separate forums are provided for
seeking these reliefs, as those rights are granted under various other
statutes. According to learned counsel for the Appellant, as the trial
Court has thus exceeded its jurisdiction in granting such reliefs, it is a
substantial question of law, which is required to be decided in this
Second Appeal.
10] Normally, when the objection to the jurisdiction of the trial
Court to entertain and grant such reliefs is not raised either before the
trial Court or even in the First Appellate Court, this Court in the
Second Appeal cannot entertain such objection, as it is too late in a
day to do so, because after subjecting himself to the jurisdiction of the
trial Court and contesting the suit and the First Appeal also on merits,
now as the certain reliefs granted by the Courts below are against him,
the Appellant is raising this contention for the first time and therefore,
such contention needs to be rejected outrightly.
11] However, as learned counsel for the Appellant has
advanced extensive submissions on this issue, mainly on the count
that, if any relief is granted by the Court which it was not having
jurisdiction to grant, then not only such Court has acted without
jurisdiction or exceeded its jurisdiction but such decree also becomes
null and void, this Second Appeal is heard and admitted on this
substantial question of law only, which is framed as follows:-
“Whether in a suit filed under Section 2 of the
Dissolution of Muslim Marriages Act, 1939, the Civil
Court was competent to grant the reliefs in respect
of maintenance of the children and matrimonial
property of the parties, for which other statutory
enactments and the other forums are available?”
12] In short, the question for consideration is, whether both
the Courts below have committed an error in granting these reliefs to
the Respondent, when admittedly the suit was filed under Section 2 of
the Dissolution of Muslim Marriages Act, 1939?
13] In this respect, learned counsel for the Appellant has
drawn attention of this Court to the title of the plaint, which states
that, it was a petition filed for 'dissolution of marriage' under Section 2
of the Dissolution of Muslim Marriages Act. Then learned counsel for
the Appellant has also taken this Court through the provisions of the
said Act to submit that, the Act was enacted purely “to consolidate
and clarify the provisions of Muslim Law relating to suits for
'dissolution of marriage' by women married under Muslim Law and to
remove doubts as to the effect of the renunciation of Islam by a
married Muslim woman on her married tie”. It is urged this Preamble
of the Act, nowhere stipulates that the Act also deals with the
“matters incidental” to the 'dissolution of marriage', which clause
normally appears in such enactments.
14] Further, it is submitted that 'The Dissolution of Muslim
Marriages Act, 1939' is a very short one, consisting of only five
sections. Section 1 deals with the definition and extent of the Act;
whereas Section 2 provides grounds for decree for dissolution of
marriage. Section 3 then deals with the notice to be served on heirs of
the husband, when the husband's whereabouts are not known. Section
4 deals with the effect of conversion to another faith by a married
Muslim woman and Section 5 states that, 'nothing contained in this
Act shall affect any right which a married woman may have under
Muslim Law to her dower or any part thereof on the dissolution of her
marriage'.
15] Thus, it is submitted that the entire Act is conspicuously
silent, as to, the rights of the married Muslim woman towards the
meher, maintenance or the matrimonial property. In such situation,
according to learned counsel for the Appellant, in a suit filed under
Section 2 of the said Act, the Respondent cannot claim other reliefs
like maintenance, meher or share in jointly owner property, nor the
Court is also competent to grant such rights or reliefs to her.
According to learned counsel for the Appellant, the Respondent may
be having those rights under other enactments, like, the right of
maintenance under 'The Protection of Women from Domestic Violence
Act, 2005' or under 'The Muslim Women (Protection of Rights on
Divorce) Act, 1986', but such rights cannot be granted under 'The
Dissolution of Muslim Marriages Act, 1939' because the rights under
those two enactments, like, 'The Protection of Women from Domestic
Violence Act, 2005' and 'The Muslim Women (Protection of Rights on
Divorce) Act, 1986', are available under different forums. For getting
those rights, the competent Court is “Judicial Magistrate First Class”
or “Family Court” and not the “Civil Court”, where this suit was filed.
According to learned counsel for the Appellant, therefore, the trial
Court had exceeded its jurisdiction or exercised the jurisdiction which
was not vested in it, while granting these reliefs to the Respondent.
16] It is submitted by learned counsel for the Appellant that,
as regards the decree of 'dissolution for marriage', granted by both the
Courts below, the Appellant is not having any grievance. The
Appellant is also not pressing the grievance in respect of the order
relating to return of meher amount, as he has already returned the
same. However, as regards the reliefs of maintenance to the children
and in respect of granting share to the Respondent in the jointly
owned flat, the Appellant is having real grievance; because these
reliefs should not have been granted by the trial Court and confirmed
by the Appellate Court.
17] In support of his submission, learned counsel for the
Appellant has relied upon the judgment of the Hon'ble Supreme Court
in the case of Santosh Hazari V/s. Purushottam Tiwari1, wherein it
was held that when both the Courts have not functioned properly, then
it may give rise to substantial question of law. It is urged that, when in
a suit for 'dissolution of marriage', the Courts below have granted the
other reliefs like maintenance and share in the matrimonial property,
then definitely it has to be inferred that both the Courts below have
functioned improperly. Their judgments do not display conscious
application of mind and whenever such doubt arises, as to, whether
the Courts below have carried out their functions correctly, such doubt
itself must give rise to a substantial question of law, on which this
Second Appeal needs to be admitted, heard and decided.
18] Learned counsel for the Appellant has then relied upon
another judgment of the Hon'ble Supreme Court in the case of Gauri
Shankar V/s. Rakesh Kumar and Others2, wherein on the count of non
consideration of substantial question of law articulated in memo of
Second Appeal, it was found fit by the Hon'ble Supreme Court to
remand the matter to the High Court for reconsideration afresh.
1 (2001) 3 SCC 179
2 (2017) 5 SCC 792
19] Then, learned counsel for the Appellant has placed reliance
on the judgment of the Hon'ble Supreme Court in the case of
Chandrika Singh and Others V/s. Raja Vishwanath Pratap Singh and
Another3, wherein it was held that, as the issue of tenancy was framed
in the suit, it was not open to the Civil Judge to decide the same on its
own. The said issue should have been referred to the appropriate and
competent authority established under the relevant law. Accordingly,
the appeal was allowed and the issue was referred for its decision to
the competent authority.
20] Learned counsel for the Appellant has then relied upon the
judgment of the Hon'ble Supreme Court in the case of Rameshwar
Dass Gupta V/s. State of U.P. and Another4 to submit that it is bounden
duty of the High Court to ensure that the Courts below do not exceed
their jurisdiction.
21] According to learned counsel for the Appellant, therefore,
as in the instant case, it is clear that the Courts below have exceeded
their jurisdiction by granting those reliefs to the Respondent, which
could not have been claimed in this suit, it is necessary to set-aside the
3 (1992) 3 SCC 90
4 (1996) 5 SCC 728
findings of fact recorded by both the Courts below, by entertaining and
allowing this Second Appeal on this substantial question of law.
22] Per contra, learned counsel for the Respondent has relied
upon the Full Bench judgment of this Court in the case of Jagdish
Balwantrao Abhyankar & Others V/s. State of Maharashtra & Others5
to submit that if the relief is claimed under wrong provision, it is
within the power of the Court to grant relief by disregarding the
'nomenclature' or the 'label' to ensure that the right of the party is not
lost. In this case, it was observed by the Full Bench of this Court that,
“some times it does happen that the application is filed under a
particular provision of statute and it is found to be not maintainable
thereunder or the Court or Tribunal has no power to grant the relief
asked for thereunder but the said application is maintainable under
some other provision of the statute before the same Court or Tribunal
and it has power to grant the relief asked for, it is in such cases that it
has always been held that the “label” or the “nomenclature” of the
application or petition should not matter and after seeing the
substance or contents of the application, if it is possible to grant the
relief under some other provision of the statute, such a relief should
not be denied to a party. Such a recourse can be taken only when it is
5 AIR 1994 Bombay 141 (At Nagpur)
found that the relief asked for cannot be granted under the provisions
under which the jurisdiction of the Court or Tribunal is invoked, much
less when the result would be to deprive the party of a right of appeal
provided against the order passed under such a provision”.
23] According to learned counsel for the Respondent, the Civil
Court, definitely has the jurisdiction to grant the relief of maintenance
and also in respect of share in the property. It is not a case at all, that
the Civil Court has no jurisdiction over the subject matter of the
dispute. The entitlement of the Respondent to those reliefs is
recognized under other statutes. In such situation, there was nothing
wrong, much less illegal, if the trial Court has exercised the
jurisdiction available to it and granted the relief in the suit. Merely
because the suit was labeled to be filed under Section 2 of the Act, does
not take out the power or jurisdiction of the Court to grant such
reliefs; especially when at the very first opportunity, the Appellant has
not taken any such objection. According to him, if such objection was
taken at the appropriate time, the Respondent would have taken
resort to appropriate remedies. At this stage, if the decree of the trial
Court, which is confirmed by the Appellate Court also, in respect of
these two reliefs is set-aside by this Court, merely on the count that
the 'nomenclature' of the suit filed before the trial Court was a suit
under Section 2 of the Act and hence, the trial Court should not have
granted these reliefs, then the valuable rights accrued to the
Respondent, would be lost; especially if such plea is allowed to be
entertained in the Second Appeal.
24] Learned counsel for the Respondent has then also placed
reliance on the judgment of the Hon'ble Supreme Court in the case of
Sushilabai Laxminarayan Mudliyar & Others V/s. Nihalchand
Waghajibhai Shah & Others6 wherein also it was held that while
considering the maintainability of the appeal against the judgment of
the Single Judge, the Division Bench has to find out whether in
substance the judgment has been passed by the learned Single Judge
in exercise of the jurisdiction under Article 226 of the Constitution of
India. Learned Single Judge is at liberty to decide according to the
facts of each particular case, whether the said application had to be
dealt with only under Article 226 of the Constitution of India or
whether it can invoke the power under Article 227 of the Constitution
of India. It was held that, “the determining factor is the real nature of
the principal order passed by the Single Judge, which is appealed
against and neither mentioning in the cause title of the application of
both the Articles nor the granting of ancillary orders thereupon made
6 AIR 1999 SC 185
by learned Single Judge would be relevant”.
25] Here, in the case, according to learned counsel for the
Respondent, it is totally irrelevant, whether the plaint should also
carry the title of other reliefs claimed in the suit and it is sufficient if
the plaint carries only the nomenclature that it was filed under
Section 2 of the Act. According to him, all the reliefs which
Respondent was seeking in the suit were pleaded specifically in the
plaint, including the relief relating to the maintenance of the children
and also the share in the jointly owned flat. The Appellant has resisted
the suit including these reliefs also. He has proceeded with the trial
knowing fully that these reliefs were claimed. Even after the judgment
of the trial Court, in the First Appellate Court he has not raised any
grievance on this score. Hence, according to learned counsel for the
Respondent, the Appellant is now in the first place precluded from
raising this contention and secondly, mere title of the suit will not be
sufficient to deprive the Court from exercising its power under other
enactments when the reliefs to that effect were maintainable under
other enactments. Mere non mentioning of those enactments or the
Sections thereof in the title of plaint, according to him, is not sufficient
to hold that the trial Court has exceeded its brief.
26] Further, learned counsel for the Respondent has also
relied upon the various judgments of the Hon'ble Supreme Court and
this Court to submit that the relief of maintenance and the right in
matrimonial property being incidental reliefs to the 'dissolution of
marriage', it cannot be accepted that the trial Court has exceeded its
jurisdiction in granting those reliefs. Conversely, according to him, the
very object of enactment of 'The Family Courts Act, 1984', if kept in
mind, then it requires that all the disputes between the spouses should
be brought in one forum and they should be decided together under
one umbrella, so that the valuable time spent by the parties in the
litigation can be saved.
27] Having given my anxious consideration to the rival
submissions advanced by learned counsel for the parties, I find much
substance in the submissions advanced by learned counsel for the
Respondent. Here, in the first place, the Appellant has not raised
objection to the Respondent claiming in the plaint these reliefs of
maintenance and share in the jointly owned flat, though she has titled
the suit as the one for 'dissolution of marriage' under Section 2 of the
Act. The Appellant has contested these reliefs on merits. He has
resisted these reliefs by filing his written statement and leading his
own evidence. Even after the reliefs were granted by the trial Court in
the First Appeal also, he has at no time raised any objection on this
score that Respondent could not have sought these reliefs in a suit
filed under Section 2 of the Act and the trial Court has exceeded its
jurisdiction in granting those reliefs.
28] In the 'Appeal Memo' of the Second Appeal also, he has not
raised this ground. Only at the time of final hearing, if the Appellant is
raising this objection that too merely because in the title of the suit,
the provisions of other enactments, like, 'The Protection of Women
from Domestic Violence Act, 2005' and 'The Muslim Women
(Protection of Rights on Divorce) Act, 1986', are not added, then it is
not only too late in a day to do so but it is as good as to deprive the
Respondent of the right accrued to her. It would be also as good as
directing the Court to be guided merely by “nomenclature” or “label” of
the plaint. It can hardly be accepted as it would be against the spirit of
the law.
29] While deciding any litigation, the Court has to consider
entire case in its proper perspective, including the pleadings, the
points argued, the reliefs claimed, everything. The Court is never
expected to be guided by mere “nomenclature” or “label” of the plaint.
As held by this Court, in the above referred judgment of Jagdish
Balwantrao Abhyankar, at times such nomenclature may be due to
mistake or inadvertence. The party cannot be penalized for the same.
The Court of law has to do the substantive justice to the parties and
not to be misled by technicalities. Even if at times, the 'nomenclature'
is incorrect, like, where it is not mentioned specifically whether the
petition is under Article 226 or 227 of the Constitution of India, the
Court has to consider properly, depending upon the reliefs sought
thereunder and accordingly grant or reject such petition. Merely
because a wrong provision of statute is quoted in the petition or the
suit, the Court cannot dismiss the same. Here, in the case, therefore,
merely because the Respondent had not stated the provisions of other
statutes, while filing the plaint and has stated that it is filed under
Section 2 of the Act, it will not denude the Court from its powers to do
the justice.
30] It is also not a case where the Civil Court cannot and does
not have the jurisdiction to grant these reliefs of maintenance and
share in the matrimonial property. Under the provisions of the
Protection of Women from Domestic Violence Act, 2005, Section 26
confers concurrent jurisdiction on all the three forums, including the
Family Court, the Court of Judicial Magistrate First Class and also the
Civil Court, as regards the relief like the maintenance. So far as the
relief in respect of the matrimonial property or the property standing
in the joint name of both the spouses which is a fact in this case also,
the Civil Court is having the jurisdiction to entertain such suit. As a
matter of fact, according to learned counsel for the Appellant also,
Section 22 of 'The Specific Relief Act, 1963', clearly provides for
partition of such jointly owned property and under the provisions of
'The Specific Relief Act, 1963', it is the Civil Court, which is having the
jurisdiction to grant such decree. Therefore, it is not a case, where the
Civil Court was not having the jurisdiction to grant the reliefs which
the Respondent had claimed in the suit. Hence, it also cannot be said
that the trial Court has exceeded its jurisdiction.
31] As regards the reliance placed by learned counsel for the
Appellant on the judgment of the Hon'ble Supreme Court in the case of
Chandrika Singh (supra), there the issue framed was relating to the
tenancy, for which a separate competent authority is established and
the Civil Court's jurisdiction to decide such issue is excluded.
Therefore, it was held that such issue was required to be referred to
the tenancy authorities. Here, in the case, the jurisdiction of the Civil
Court is not excluded in any way to decide both these issues relating to
maintenance of the children and the right and share of the
Respondent in the jointly owned flat. The Civil Court was having very
much jurisdiction and therefore, there is no question of the trial Court
exceeding its jurisdiction or acting beyond its jurisdiction or
exercising the jurisdiction, which was not vested in it. Hence, on this
score also, the contention raised by learned counsel for the Appellant
cannot be accepted.
32] Third and the most important factor which is required to
be considered is that the law always expect that all the disputes
between the parties should be decided in one forum and in one
proceeding, so as to avoid the multiplicity of proceedings and the
waste of time, energy and money of the parties in prosecuting the
remedies in different forums. The right of maintenance and right in
the matrimonial property are the consequences of the marriage or its
dissolution. Those reliefs are incidental to the main relief of
'dissolution of marriage' and therefore, these reliefs are very much
integral part of decree of 'dissolution of marriage'. Hence, they are
required to be considered in the same proceeding, even if at times
such reliefs are not asked for also. It is well recognized that the award
of maintenance is the fall out of the decree of 'dissolution of marriage',
hence even if at times, the Respondent has not asked for the
maintenance, she is awarded that maintenance for herself and her
children while passing the decree for 'dissolution of marriage'. It may
be stated that, even when the decree is of 'Restitution of Conjugal
Rights' under Section 9 of 'The Hindu Marriage Act, 1955' there is
provision for award of maintenance under Order 21, Rule 33 of the
Code of Civil Procedure, till the decree is complied with. The point to
be stressed is that the relief of maintenance whether to the wife or the
children is incidental to the relief of 'dissolution of marriage'. Merely
because 'The Dissolution of Muslim Marriages Act, 1939', does not
mention that the Court is also having the jurisdiction or power to
grant such relief, it cannot be said that the Court is not having
jurisdiction to grant it, if it is incidental, claimed and the Court finds it
necessary to grant the same. Moreover, the right of maintenance
given to wife and the minor children under the provisions of the
Muslim Women (Protection of Rights on Divorce) Act, 1986, is in
addition to the right, which the minor children are having under
Muslim Law to get maintenance from the father. The law expects that
the parties should not be driven to approach the different forums but
in one forum itself they should be granted whatever reliefs to which
they are entitled.
33] In this respect one can also take note of the decision of this
Court relied upon by learned counsel for the Respondent, in the case of
Mohammed Anis Ul Haq Manzul Ul Haq V/s. Asma Anjum Anis Ul
Haq7. The issue raised in that case before this Court was whether in a
suit filed under Section 2 of the Dissolution of Muslim Marriages Act,
1939, cognizable under Section 9 of the Civil Procedure Code, 1908,
the Civil Court has power or jurisdiction to grant interim
maintenance? After taking note of its earlier decisions and
considering various provisions of the Mohammedan Law, it was held
by this Court that, though the parties to the case are Mohammedan, as
the maintainability of the suit filed under Section 2 of 'The Dissolution
of Muslim Marriages Act, 1939', was not disputed, the power to grant
interim maintenance was available to the Civil Court. It was held that
“inherent power of the Court, as is well known, can be denied only by
way of statutory interdiction. There does not exist any provision
either in Civil Procedure Code, or in the Dissolution of Muslim
Marriages Act, 1939, dis-entitling the Court from granting interim
maintenance”. It was held that such power is available by necessary
implication, where circumstances so warrant.
34] In respect of the right of minor children to get
maintenance from the father, learned counsel for the Respondent has
placed reliance on the judgment of the Hon'ble Supreme Court in the
7 I (2011) DMC 646
case of Noor Saba Khatoon V/s. Mohd. Quasim8, wherein it was held
that when the children are in custody of the mother, the obligation of
father to maintain his children till they attain majority is absolute.
Even under the Muslim Personal Law, the right of minor children to
receive maintenance from the father till they are able to maintain
themselves is absolute”. Thus, if the trial Court in this case was having
such jurisdiction to grant the maintenance to the children, then
exercise of such jurisdiction by the trial Court, in the facts of the
present case, cannot be called as exceeding beyond its jurisdiction.
35] As a matter of fact, the Division Bench of this Court, in the
case of Shabbir Ahmed Sheikh V/s. Shaikilabanu9, has held as follows:-
“The preamble of the Dissolution of Muslim
Marriages Act, 1939, shows that the Act is of a
consolidating and declaratory character and that it
was intended to consolidate and clarify the
provisions of Muslim Law relating to suits for
dissolution of marriages by women married under
Muslim Law and to remove doubts as to the effect of
the renunciation of Islam by a married Muslim
woman on her marriage tie. It was never intended to
abrogate the general Law applicable to
Mohammedans. Therefore, this Act is not the sole
statute. They are having the rights under other
8 AIR 1997 SC 3280
9 II (1985) DMC 13
statutes also and those rights can be very well
exercised in the Civil Court. Therefore, if any decree
is passed by the Civil Court granting those rights, it
cannot be said that the Civil Court is acted beyond its
jurisdiction.” (emphasis supplied)
36] In this respect, the useful reference can also be made to the
judgment of the Hon'ble Supreme Court in the case of K.A. Abdul
Jaleel V/s. Shahida10, wherein the Hon'ble Supreme Court was
concerned with the provisions of Section 7 of the Family Courts Act,
1984, as to, whether the Family Court had jurisdiction to adjudicate
upon any question relating to properties of the parties not only of
subsisting marriage but also divorced parties and the Hon'ble
Supreme Court was pleased to hold that the reason for enactment of
the Family Courts Act, 1984, was to set up a Court to deal with all the
disputes concerning with the Family and it is now well settled
principle of law that the jurisdiction of a Court created specifically for
resolution of disputes of certain kinds should be construed liberally.
Hence, the restricted meaning if ascribed to explanation “C” appended
to Section 7 of the Act would frustrate the object where for the FamilyCivil Court can grant Maintenance, Mehr & a Share in Matrimonial property to a Muslim Woman
Courts were set-up.
37] The point to be stressed is that in the course of
10 AIR 2003 SC 2525
matrimonial proceedings, all the disputes relating to the parties are as
far as possible, required to be brought under one umbrella and one
forum, instead of driving the parties to various forums. If the Family
Court can decide such disputes, the Civil Court, which is considering
whether to grant decree for 'dissolution of marriage', cannot be said to
be devoid of the jurisdiction to grant the relief of maintenance and
right in matrimonial property.
38] The law is required to be interpreted in such a manner that
it causes least inconvenience to the parties to the litigation. Now
setting aside the decree of the trial Court, after the lapse of seven
years from the date of filing of the suit that too on technical and
academic ground that the specific provisions of these two enactments,
like, 'The Protection of Women from Domestic Violence Act, 2005' and
'The Muslim Women (Protection of Rights on Divorce) Act, 1986', were
not quoted in the plaint filed before the trial Court is not only going to
cause inconvenience to the parties but it is also taking too technical
and pedantic view of the matter and thereby allowing the ends of
justice to be defeated. Such approach cannot be adopted by any Court
of law, which is in the real sense a “Court of justice”. Things would
have been different, if the Appellant had taken such objection at the
earliest opportunity but now in the Second Appeal, raising such
objection, after contesting the matter on merits, is merely an attempt
to protract and prolong the execution of the decree and thereby to
harass his wife and children. The answer to the point framed for
determination therefore has to be in the negative.
39] As regards the submission that one of the child has already
become major and therefore, not entitled for maintenance; if it is so,
the Appellant can very well raise that grievance in the Executing
Court. This is not a forum to raise that grievance.
40] Before concluding, one more submission advanced by
learned counsel for the Appellant needs to be considered and it
pertains to the sale of the jointly owned flat, as ordered by the Courts
below. There is concurrent finding recorded by both the Courts below
and which is based on proper appreciation of evidence on record;
especially the admission given by the Appellant himself in the course
of his cross-examination that the flat stands in the joint name. It is
proved on record that the Respondent has contributed the amount of
Rs.5,00,000/- for purchase of the said flat. Hence, in the light of the
judgment of this Court in the case of Smt.Sunita Shankar Salvi V/s.
Shankar Laxman Salvi 11 as the flat is standing in the joint name and
appeared to be acquired jointly by the parties, then it follows that the
11 AIR 2003 Bombay 431
Respondent is having right and share therein. Therefore that finding
cannot be disputed in the Second Appeal.
41] The only grievance raised by learned counsel for the
Appellant is that the trial Court has directed the flat be sold and
consideration thereof be divided equally between the parties; in the
alternate the Appellant himself can purchase the flat and pay the half
consideration, as per the market price to the Respondent. The
submission of learned counsel for the Appellant is that the trial Court
has not considered the provision of Section 22 of the Specific Relief
Act, which also provide for the partition of the property owned jointly.
Here, in the case, according to him, such discretion is not given to the
executing Court as the decree is silent about the same. If it is so, then
in my considered opinion, this point also should have been advanced
before the trial Court or the Appellate Court but assuming that it is not
advanced, to that extent, it is directed that the Executing Court is also
having the discretion to consider, in addition to the two other modes
given in the decree, whether the flat can be partitioned between the
Appellant and the Respondent, if it is acceptable, agreeable and
convenient to both the parties. Except to this limited extent, no other
substantial question of law is raised, hence this Second Appeal stands
dismissed.
42] In view of the dismissal of the Second Appeal, nothing
survives in the Civil Application and therefore, it stands disposed off.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
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