IN THE HIGH COURT OF DELHI
CS (OS) 104/2017
Decided On: 06.05.2020
Meena Kapoor Vs. Ayushi Rawal and Ors.
Hon'ble Judges/Coram:
Mukta Gupta, J.
1. Plaintiff, who is the mother-in-law of defendant No. 1 and mother of defendant No. 2 has filed the present suit seeking a decree of permanent injunction against the defendants restraining them or their agents, representatives etc. from entering and creating disturbance in the peaceful possession and occupation of the plaintiff to the premises bearing No. K-1/48, Model Town, Part II, Delhi-110009 (in short, the "suit property). Case of the plaintiff is that she purchased the suit property consisting of ground floor, first floor and second floor for a valuable consideration vide registered sale deed dated 29th August, 2017 and after the purchase thereof, she constructed the suit property which is a self acquired property of the plaintiff with no semblance of a Joint Hindu Family or ancestral property. The plaintiff's husband is a senior citizen and suffering from various ailments. Defendant No. 1 who is the daughter-in-law of the plaintiff was married to defendant No. 2, her son on 19th January, 2016 and due to violent and unpredictable behaviour of defendant No. 1, there is a matrimonial discord between the defendant No. 1 and defendant No. 2. Defendant No. 1 left the suit property on 4th November, 2016 and since defendant No. 1 was living with her parents, defendant No. 2 also moved out of the suit property and started staying separately. Thus, the plaintiff claims that the defendants have no right, title or interest in the suit property.
2. It is the case of the plaintiff that on 5th November, 2016, defendant No. 1 went to her parents' place along with her belongings and valuables and despite the best efforts of the plaintiff and her husband to try to settle the disputes between the defendant No. 1 and defendant No. 2 to save their marriage, due to adamant behaviour of defendant No. 1, no result was forthcoming. Defendant No. 2 thus filed the divorce petition on the ground of fraud and cruelty against defendant No. 1 which proceedings are pending before the Family Courts, Rohini. Since defendant No. 2 is also not residing in the suit property and has filed the divorce petition, defendant No. 1 has no right to come to the suit property. The suit premises is neither the matrimonial home of the defendant No. 1 nor a shared household.
3. Summons were issued to the defendants and written statements were filed both by defendant Nos. 1 and 2. Defendant No. 2 has supported the stand of the plaintiff, however, the stand of the defendant No. 1 in the written statement is that the present suit has been filed by the plaintiff in collusion with defendant No. 2 and this Court has no jurisdiction to entertain the suit in terms of Notification No. 45/Rules/DHC dated 23rd December, 2016 issued by this Court also as per the judgment of the Division Bench of this Court in CS(OS) 411/2010 & IA 12186/2010, reported as MANU/DE/1693/2016 : 231 (2016) DLT 682 (DB) Amina Bharatram Vs. Sumant Bharatram and Ors. decided on 19th July, 2016. It is claimed that the defendant No. 1 has a right to reside in the suit property as during the talks of marriage, it was portrayed to the defendant No. 1 that defendant No. 2 had contributed a sum of ` 1 Crore for the purchase of the suit property and had spent around ` 55 lakhs for the construction of the suit property. Defendant No. 2 being the only son of the plaintiff and her husband, was entitled to equal share in the suit property as he was running the business and was actively involved in earning huge profits in the said business of wholesale fabrics by the name of Vimla Dupatta Private Ltd. Defendant No. 2 is one of the Directors of the said company of which the two other Directors were his parents.
4. After the pleadings and admission-denial of documents were completed vide order dated 12th April, 2019, this Court framed a preliminary issue i.e. 'Whether this matter is liable to be transferred to the Family Courts? OPD-1'. Hence, parties have addressed arguments on the preliminary issue.
5. Learned counsel for the plaintiff submits that the present suit is not between the parties to a marriage with respect to the properties of the parties or of either of them but with respect to the absolute property of the mother who claims injunction against defendants restraining them from entering or creating disturbance in the peaceful possession and occupation of the suit property.
6. Learned counsel for the plaintiff in support of her contention relies upon the decisions of this Court reported as MANU/DE/0198/2010 : AIR 2010 DEL 58 Manita Khurana Vs. Indra Khurana, CM(M) 957/2019 Atul Kumar Gupta and Ors. Vs. Mitthan Lal Aggarwal and Ors. decided on 1st July, 2019, whereas learned counsel for the defendant No. 1 states that since the relief is sought against both the defendants i.e. defendant No. 1 and defendant No. 2, the same would be relating to a property in relation to the parties to the marriage and hence, the decision of this Court in Amina Bharatram Vs. Sumant Bharatram & Ors. (supra) would apply to the facts of this case. Learned counsel for the defendant No. 1 also relies upon the Practice Directions issued by this Court pursuant to the decision of the Division Bench in Amina Bharatram (supra) and decision of the High Court of Kerala reported as MANU/KE/2129/2015 : 2015 (4) KLT 471 Krishna Moorthy Vs. Soumya Krishnan.
7. Before proceeding further, it would be appropriate to note Sections 7 and 8 of the Family Courts Act, 1984 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
(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 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 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. 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 (1) 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 Procedure, 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 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".
8. Interpreting Sections 7 and 8 of the Family Courts Act, 1984, a Division Bench of this Court in Amina Bharatram Vs. Sumant Bharatram & Ors. (supra) held that the High Court is a District Court in terms of Section 8 of Family Courts Act, 1984 in respect of all matters enumerated in Explanation to Section 7(1) of the Family Courts Act, 1984 and that the Delhi High Court does not possess jurisdiction to entertain, try and decide cases and causes referred to in Sections 7 and 8 of the Family Courts Act, 1984. Pursuant to the decision of the Division Bench, the following Practice Directions were issued by this Court on 23rd December, 2016:
"1. In view of the judgment dated 19.07.2016 passed by the Hon'ble Division Bench of this Court on reference in CS(OS) No. 411/2010 & I.A. No. 12186/2010 titled "Amina Bharatram Vs. Sumant Bharatram and Others", all matters enumerated in Explanation to Sub-Section (i) of Section 7 and Section 8 of the Family Courts act, 1984 shall be exclusively triable by the Family Courts and the jurisdiction of the High Court to the extent it exercises Ordinary Original Civil Jurisdiction in respect of such matters stands excluded by virtue of Section 8(c)(ii) of the said Act. Such matters listed before this Court shall be transferred to the Family Courts by passing the necessary Orders in this respect on their dates of listing.
2. The Registry, henceforth, is directed not to accept such matters as enumerated in Explanation to Sub Section (i) of Section 7 and Section 8 of the Family Courts Act, 1984."
9. Thus, it is required to be determined whether the facts in the present suit and the cause pleaded falls within Sections 7 and 8 of the Family Courts Act, 1984 in which case this Court will have no jurisdiction to entertain, try and decide the present suit.
10. In Amina Bharatram Vs. Sumant Bharatram and Ors. (supra), the plaintiff therein had instituted a suit for maintenance and separate residence under Sections 18, 20 and 23 of the Hindu Adoptions and Maintenance Act, 1956 and for permanent and mandatory injunction and declaration claiming the following reliefs:-
"a) a decree of maintenance be passed in favour of the plaintiff and against the defendants, awarding Rs. 2.5 lakhs per month and appropriate orders be passed, securing the payment of the maintenance amount against/from the assets of the defendants.
b) Pass a decree of mandatory injunction against the defendants to continuing to pay the rent for the matrimonial home or in the alternative a decree be passed, directing the defendant to provide for residence/residential house for the plaintiff commensurate with the house No. S-70, Panchsheel Park, New Delhi-110017 in which the parties are living at present.
c) a decree for mandatory injunction be passed, directing the defendants to provide for two cars of appropriate make and two drivers for the use of the plaintiff, and her children as per the status of the family.
d) A decree of permanent injunction be passed against the restraining the defendant No. From throwing out the plaintiff from the matrimonial home i.e. House No. S70, Panchsheel Park, New Delhi-110017.
e) Perpetual injunction be granted against the defendant from in any manner selling and/or alienating the property bearing No. L-1/4, Hauz Khas, New Delhi 110016.
f) Direct the defendant to pay litigation expenses.
g) to declare that the court fee under Section 18, 20 And 23 Of The Hindu Adoption & Maintenance Act, 1956 is payable after the decree has been passed as it works to the disadvantage of plaintiff.
h) costs of the suit be also awarded to the plaintiff.
i) Any other order or direction which this Hon'ble Court may deem fit and necessary in the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendant."
11. In the light of these prayers in the suit, the husband of Amina Bharatram being impleaded as a party, as it was suit for maintenance provided in Clause (f) of Explanation to Section 7(1) of the Family Courts Act, 1984, this Court held that it had no jurisdiction to entertain and try the suit and the same ought to be decided by the Family Courts, being vested with exclusive jurisdiction thereof.
12. In Manita Khurana Vs. Indra Khurana (supra), a Co-ordinate Bench of this Court which also decided Amina Bharatram Vs. Sumant Bharatram and Ors. (supra) noted the provisions of Sections 7 and 8 of the Family Courts Act, 1984 and came to the conclusion that the Family Courts had no exclusive jurisdiction to try the subject matter and thus, the suit before the Court was maintainable. In the said case, Indra Khurana, the mother-in-law of Manita Khurana had instituted a suit for the relief of ejectment, possession and mesne profit against the petitioner/defendant from the house claiming herself to be absolute owner of the house even though the petitioner therein was residing in the said house after marriage with the son of Indra Khurana. Noting the various decisions of the Supreme Court and the other High Courts, it was held:
"13. The Supreme Court in K.A. Abdul Jaleel Vs. T.A. Shahida MANU/SC/0301/2003 : AIR 2003 SC 2525 also noticed that the approach of a Family Court is radically different from that adopted in ordinary civil proceedings. It was also held that jurisdiction of a court created especially for resolution of disputes of certain kinds should be construed liberally and a restricted meaning if ascribed to the explanation appended to Section 7 of the Act would frustrate the objects wherefore the Family Courts were set up. On such reasoning, it was held that even after dissolution of the marriage a dispute as to property of the spouses was within the exclusive jurisdiction of the Family Court.
14. The only clause of the explanation to Section 7 of the Act which can be said to bring within its ambit a suit of the nature as in the present case, is Clause (d).
15. What is however significant in the present case is that the husband of the petitioner is not a party to the suit. The Kerala High Court has had occasion to consider whether a suit to which persons other than spouses are a party would continue to be governed by the Family Court Act or not. A Single Judge of the Kerala High Court in Shyni Vs. George MANU/KE/0046/1997 : AIR 1997 Kerala 231 held that merely because a stranger to the marriage (in that case the father-in-law) is also impleaded in the suit along with the husband on the ground that the property of the wife or a portion of it also has been handed over to him would not take away the suit from the purview of the Family Court. It was further held that the jurisdiction of the Family Court is not confined to proceedings by one spouse against another and that so long as the suit is of 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 include the close relatives of the other spouse. It was further held that the cause of action if common could not be permitted to be split up by filing a suit against the husband in a Family Court and against the father-in-law in the Civil Court. However, in the same judgment, it was observed that a suit for partition in which a party to a marriage claims a share in the property not only along with her husband or as against her husband but also along with the various other members of the joint family would be totally different from a case where a wife files a case for recovery of her exclusive property against her husband and someone else who is holding the property on her behalf like the father-in-law in that case. On the aforesaid reasoning, in Devaki Antharjanam Vs. Narayanan Namboodiri MANU/KE/0159/2006 : AIR 2007 Kerala 38 another Bench of the Kerala High Court held that a suit for partition in which not only the husband and wife but their children were also parties did not fall within the exclusive jurisdiction of the Family Court and as such the decree in the suit passed by the Civil Court could not be held to be void. The reasoning was that the property belongs not only to the parties to the marriage but to others as well. It was further held that where other parties to the suit are merely a proforma party or a party with whom the money or the property of the parties to the marriage or either of them is entrusted or where the third party claims through either or both the parties to the marriage or a legal representative of a party to a marriage or a person in possession of property of the parties to the marriage, notwithstanding such third party being party to the suit, the exclusive jurisdiction to try the suit would still be of the Family Court; however where there is a sharer to the property other than the parties to the marriage, such a sharer could not be compelled to bring a suit for partition before the Family Court merely because the other sharers were married to each other. However, a Division Bench of the Kerala High Court in Joseph Vs. Marium Thomas MANU/KE/0034/2006 held that the claim of a stranger over a property over which the wife had a charge for her maintenance was not required to be adjudicated in the Family Court. It was held that Section 7 excludes the jurisdiction of the civil court only in certain matters which are relating to proceedings between parties to a marriage; however, the claim of a total stranger could not be covered by Section 7 of the Act.
16. A Single Judge of the Bombay High Court in Rakhi Vs. Jayendra MANU/MH/0799/2008, has held that the Family Courts Act which is a special legislation and creates a forum and mechanism for beneficial and effective enforcement of existing rights cannot be construed to bring within its jurisdiction what was not intended and expressed so. In that case the suit filed by the father-in-law for an injunction restraining the daughter-in-law from entering the house which he claimed to be belonging to him absolutely was held not transferrable to the Family Court.
17. I respectfully agree with the Division Bench of the Kerala High Court and the view aforesaid of the Bombay High Court. The claim of a third party to a marriage even if she be the mother of one of the spouses cannot be adjudicated before the Family Court and to the prejudice, on the aspects noted herein above, as to procedure, appeal, limitation, of such third party. It may be noted that the respondent/plaintiff in the present case is claiming absolute title to the property not as the representative or trustee of the husband of the petitioner/defendant and/or through the husband of the petitioner/defendant but in her own capacity as the widow and nominee of her deceased husband. It is also significant that though the petitioner/defendant is admitted to have been inducted into the suit premises owing to the marriage with the son of the respondent/plaintiff but that is not the cause of action for the suit. The cause of action for the suit is the refusal of the petitioner/defendant to vacate the house of which the respondent/plaintiff claims to be the exclusive owner. Merely because certain facts leading to the cause of action referred to the marital relationship of the petitioner/defendant would not make the suit as one in circumstances arising out of a marital relationship. The language of Clause (d) of Section 7 is peculiar. The words "circumstances arising out of marital relationship" do not qualify the words "suit or proceeding" but qualify words 'order or injunction'. Thus, the order of injunction sought from the court has to be in circumstances arising out of marital relationship. The order sought in the present case of eviction of the petitioner/defendant and of recovery of mesne profits from the petitioner/defendant does not arise out of a marital relationship but arises out of exclusive ownership claimed by the respondent/plaintiff of the property and the occupation thereof by the petitioner/defendant without authority and/or after the authority has ceased".
13. The facts of the present case are similar to the facts in Manita Khurana Vs. Indra Khurana (supra). In the present case, the plaintiff claims to be the exclusive owner of the suit property having purchased the same by way of a registered sale deed dated 29th August, 2014 and seeks the relief of injunction against the two defendants. Merely because the two defendants are married and the defendant No. 1 has taken the plea that some money in the purchase of the suit property and the construction thereof was spent from the earnings of defendant No. 2 which plea of defendant No. 1 would be hit by the Benami Transactions (Prohibition) Amendment Act, 2016, the relief in the present suit cannot be said to be between the parties to the marriage with respect to the property of the parties or either of them. Consequently, the preliminary objection raised by the defendant No. 1 that the present suit is not maintainable and should be tried by Family Court is dismissed.
14. List the suit before Court on 7th September, 2020 for further proceedings.
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