: LOCUS STANDI :
29 The first plea raised by the learned counsel for the
respondent is that the appellant has no locus whatsoever to
challenge the validity of the respondent’s marriage to her father.
The learned counsel derives inspiration from the interpretation of
Section 7 of the Act and painstakingly dwelt upon nuances of
Section to bring home the point only to emphasize that besides
the parties to the marriage, no third party can seek a declaration
with regard to the validity of the marriage and more so when the
appellant’s father is no more.
37 In this case, the appellant is seeking declaration as to
the validity of the marriage of her late father with the respondent
and as also, according to her, the status of the respondent as on
today still continued to be the wife of Mr.Mansoor Cherwalla as
per provisions of Section 7 (1) Explanation (b) of the Act. Having
regard to the Objects and Reasons of the Act vis-a-vis literal
construction of Clause (b) under Explanation, in our considered
view, the appellant has every locus to bring in question the validity of marriage of her father with the respondent and as also
respondent’s status.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.179 OF 2019
WITH
CROSS OBJECTION (STAMP) NO.30564 OF 2019
IN
FAMILY COURT APPEAL NO.179 OF 2019
MRS. NAYANA M. RAMANI V/s. MRS.FIZZAH NAVNITLAL SHAH
CORAM : R. D. DHANUKA &
V. G. BISHT, JJ.
JUDGMENT : (PER : V. G. BISHT, J.)
PRONOUNCED ON : 17th MARCH 2021
JUDGMENT : (PER : V. G. BISHT, J.)
1 This appeal arises from the common order dated 15th
July 2019 on Exh. 1 and Exh. 11 passed by the Judge, Family
Court No.2, Mumbai, whereby the learned Judge dismissed Family
Court Petition No.B-62 of 2016 under Order 2 Rule 2 of the Code
of Civil Procedure, 1908 (hereinafter referred to as “the Code”).
1A The respondent also assails above said order by way of
cross-objection in as much as grounds for rejection of said Family
Court Petition viz. locus, limitation and non-joinder of necessary
party were rejected by the learned Judge of the Family Court.
2 Facts which lie in narrow compass required for
disposal of this appeal can be stated as follows :
(a) The appellant herein is a married daughter of late
Mr.Navnitlal R. Shah (for short the appellant’s father) with
whom the respondent alleges to have got married on 24th
July 2003 after the demise of appellant’s mother viz.
Hiralaxmi Shah in February 2003. The marriage between the
appellant/petitioner’s father and the respondent was
solemnized before the Marriage Officer, Mumbai.
(b) The appellant’s father expired on 30th June 2015 leaving
behind three married daughters and one married son. The
appellant’s father was a Jain by religion and the respondent
was a Muslim belonging to Dawoodi Bohra Section of the
said religion, at the time of the alleged marriage.
(c) According to the appellant, her father was an extremely
successful businessman who built the business of “Ashapura
Group” comprising of several Companies. He owned various
assets and properties and was till some years ago a Director
in many of the Companies in the Ashapura Group. The
appellant alleges that the respondent was already married to
Mr.Mansoor Hatimbhai Chherwala but was not divorced,
which fact she deliberately concealed and suppressed from
the appellant’s father. She falsely portrayed herself as a
divorcee but was not a divorcee at all. This fact came to be
unearthed and came to the knowledge of the
appellant/petitioner recently when she happened to come
across copies of the alleged divorce documents while going
through the personal files of her father and after verifying
the authenticity of those doubtful documents. There is no
issue to the appellant’s father and the respondent out of the
alleged wedlock.
(d) Alleging further, the appellant contends that the respondent
took undue advantage of the mental ailments, infirmities
and unsoundness of mind of her father, which she was very
well aware of, got married to him and then exercised and
applied undue influence, coercion and duress upon him with
the intention and motive of siphoning his entire properties.
She even got executed various documents including his Will
and several Gift Deeds of various valuable immovable
properties and deprived the true legal heirs of their rights.
The respondent also compelled her father to transfer a huge
quantity of shares of Ashapura Group of Industries to her
name and also forcibly took away custody of the jewellery
“Stridhan” of her mother after her death.
3 In the above factual backdrop, the appellant filed the
said Family Court petition seeking declaration that the marriage
allegedly solemnized between her father and the respondent on
24th July 2003 is null and void and also the status of the
respondent as on today continued to be the wife of the said
Mr.Mansoor Hatimbhai Chherwala under the provisions of Section
7 (1) Explanation (b)and (d) of the Family Courts Act (“the Act”
for short).
4 The respondent resisted the petition by filing her
written statement. At the very outset, the respondent raised
objection as to the jurisdiction of the Family Court by contending
that the Court does not have the jurisdiction to try and entertain
the petition and therefore deserves to be dismissed in-limine.
5 According to her, she divorced her husband viz.
Mr.Mansoor Hatimbhai Chherwala on 23rd August 1984 vide a
duly executed Talaqnama in Urdu and thereafter on 21st February
2003 after the demise of the wife of the appellant’s father, got
married to him. The Registrar of Marriage, Mumbai, registered
the marriage after satisfying himself of the facts, scrutiny of all
documents submitted and after complying with procedure as
required.
6 The respondent, on her part, also alleges that the
appellant and her siblings with sole intention filed various
litigation in various courts so as to make the respondent and her
late husband succumb under their pressure so that they could
usurp all of their father’s property.
7 The respondent further contends that the petition is
barred by Law of Limitation in as much as the appellant had
knowledge of her father’s marriage and any petition or action
challenging the validity of the said marriage, therefore, ought to
have been filed within three years of the said marriage.
8 Similarly, the appellant has no locus, whatsoever, to
challenge the validity of the respondent’s marriage. Only parties to
a marriage can challenge the validity of the marriage. In other
words, besides parties to the marriage, no third party can seek
such a declaration with regard to the validity of the marriage and
more so when one of the spouses is no more.
9 The respondent further contends that the petition
suffers from defect of non-rejoinder of a necessary party viz.
Mr.Mansoor Hatimbhai Chherwala. The only ground on which the
appellant claims the respondent’s marriage with her father to be
invalid is that the divorce between her and her ex-husband
Mr.Mansoor Hatimbhai Chherwala was invalid. This question
cannot be decided behind the back of Mr.Mansoor Hatimbhai
Chherwala and he is therefore a necessary party to the present
proceedings. The present petition is, therefore, bad in law for
non-joinder of a necessary party.
10 On going through the record it is seen that during
pendency of the proceedings, the respondent moved an
application dated 10th September 2018 (Exh. 11) raising
preliminary objections viz. maintainability of the petition, locus
standii, non-joinder of necessary party and that it being barred by
Law of Limitation, the grounds which were raised in her written
statement and have been quoted in extenso by us.
11 The above application was duly replied and resisted by
the appellant by filing her reply. The appellant denied all the
preliminary objections and reiterated almost the same facts which
are raised in the main petition in defence of those objections.
12 It is in the above factual backdrop the learned Judge
after hearing both the parties passed the order below Exh. 1 and
Exh. 11. The learned Judge after elaborately discussing the
various proceedings between the parties came to the conclusion
that the appellant could have raised the issue before this Court in
original petition and the High Court could have entertained the
same. The learned Judge further held that the appellant thus had
deemingly relinquished, given up her portion of the claim
pertaining to the declaration of the marital status of the
respondent and thus the bar under Order 2 Rule 2 of the Code
shall be applicable.
13 The learned Judge, however, rejected the objections of
the respondent as to the locus, limitation and non-joinder of
necessary party raised by the respondent.
14 The present appeal is thus against the impugned order
dated 15th July 2019 rejecting the claim of the appellant on the
ground of bar of Order 2 Rule 2 of the Code. So also, Cross
Objection against the rejection of grounds raised by the
respondent. That is how both the parties are before us.
15 Mr.Naik, learned senior counsel for the appellant/
petitioner, scathing a mounting attack on the approach of the
learned Family Court strenuously submitted that the learned Family
Court erred by proceeding on the incorrect and illogical basis that as
the appellant did not seek the relief of a declaration in respect of the
validity of the marriage of the respondent in previous proceeding
filed by her before the High Court, she had deemingly relinquished
and given up the portion of her claim that is the subject matter of
the petition before the Family Court. According to the learned senior
counsel, the appellant had filed the petition before the Family Court
seeking a declaration that the purported marriage allegedly
solemnized between the appellant’s father, the late Mr.Navnitlal R.
Shah (the deceased) and the respondent is null and void and also
that the status of the respondent as on the date of filing of the
petition continued to be the wife of the one Mr.Mansoor H.
Chherawalla as per the provisions of Section 7(1) of the Act.
16 Stretching further, the learned senior counsel contended
that it is settled law that for invoking Order II Rule 2 of the
Code, the relief which the appellant has claimed in the second
proceeding/suit must have been available to the appellant for
being claimed in the previous suit on the cause of action pleaded
in the previous suit against the respondent and yet not claimed by
her. The concept of Order II Rule 2 is alien to the Family Court
proceedings. It is also a settled law that under Section 7 of the
Act, a suit or a proceeding for a declaration as to the validity of
both marriage and matrimonial status of a person is within the
exclusive jurisdiction of the Family Court, since under Section 8 all
those jurisdictions covered under Section 7 are excluded from the
purview of the jurisdiction of the Civil Court. The cause of action
arose only after the earlier suits had been filed and it is only the
Family Court that could have granted the relief sought for by the
appellant in her petition. The said relief was not available to the
appellant in any other proceeding or before any other forum.
Therefore, there was no question of relinquishing or giving up the
claim (that forms the subject matter of the petition before the
Family Court)in other proceedings before the Civil Court.
17 The learned senior counsel next contended that the
learned Family Court erred in holding that the appellant could
have raised the issue regarding the validity of the marriage of the
respondent before the Civil Court and that the Civil Court could
have entertained the same. The impugned order is contrary to the
law laid down by the Hon'ble Apex Court which holds that a
petition regarding a dispute on the matrimonial status of a person
which seeks a declaration in that regard has to be sought only
before the Family Court.
18 The learned senior counsel then lastly contended that
the learned Family Court thus committed a grave error of
jurisdiction by dismissing the petition under Order II Rule 2 of the
Code.
19 Advancing the next limb of argument, the learned
senior counsel submitted that the appellant being daughter of the
deceased Mr.Navnitlal R. Shah has every locus standi in as much
as it is well settled law that not only spouses are entitled to file
petition challenging the validity of the marriage but the interested
persons and beneficiaries related to the spouses may also
challenge it if they bring ample evidence of its illegality. In this
regard, the learned senior counsel heavily pressed into service
Explanation (b) to Section 7 of the Act.
20 The learned senior counsel next submitted that as far
as objection regarding non-joinder of necessary party viz.
Mr.Mansoor Hatimbhai Chherwala is concerned, according to the
appellant/petitioner, there was no necessity to join him in the
present proceedings as any presumed testimony from his end with
regard to the validity of the divorce would have made no
difference to her case particularly since the compliance of Fatimid
law with regard to divorce had not been carried out by the parties.
21 The learned senior counsel lastly, while replying to the
point of limitation, submitted that the very petition was filed well
within the time as the same was filed immediately after the
discovery of the relevant facts along with the documents. Even
otherwise, it being a mixed question of law and facts, the Family
Court rightly rejected the said issue raised by the respondent for
the reasons recorded in the impugned order.
22 Summing up the submissions, the learned senior
counsel urged that for all the aforesaid reasons, the impugned
order in so far as it is impugned by his client deserves to be set
aside.
23 To buttress his submissions, the learned senior counsel
placed reliance on the order of this Court in case of Nayana
Ramani (Applicant) In the matter between Aruna Shah vs. Fizza
Shah & Anr.1, Aruna Shah vs. Fizza Shah & Anr.2, Judgment of
Kerala High Court in case of Syamaladevi vs. Sarla Devi and
Others3, Judgment of Supreme Court in case of Balram Yadav vs.
Fulmaniyua Yadav4 and in case of Sucha Singh Sodhi (Dead)
through LR vs. Baldev Raj Walia & Anr.5 and Judgment of this
Court in case of Romila Jaidev Shroff vs. Jaidev Rajnikant Shroff6.
24 Per contra, Ms.Panda, learned counsel for the
respondent, on the other hand, would seek to sustain the order
1 Order dated 17.4.2017 in Chamber Summons No.1755 of 2016
2 Order dated 27.9.2017 in Appeal (L) No.202 of 2017
3 2009 SCC Online Ker 508
4 (2016) 13 SCC 308
5 (2018) 6 SCC 733
6 2000 (3) Mh.L.J. 468
dated 15th July 2019 passed by the learned Family Court. At the
very outset, we make it clear that the learned counsel has mainly
argued on the point of locus, limitation and non-joinder of
necessary party, as all these objections were negatived by the
learned Family Court.
25 Starting with the application of Section 7of the Act,
the learned counsel vehemently submitted that the appellant/
petitioner does not have locus standi to file and maintain the
petition under Section 7 of the Act. According to the learned
counsel, in the light of mandate of Section 7 of the Act, the
marriage can be challenged only by the parties to the marriage
and no third party can seek any declaration regarding the validity
of the marriage as is sought by the appellant in the Family Court
petition, particularly after the demise of her father. The learned
Family Court patently erred in rejecting this ground and therefore
on this ground alone the petition ought to have been dismissed.
26 The learned counsel then next submitted that the
learned Family Court ought to have held that the petition suffers
from non-joinder of necessary party i.e. Mr.Mansoor Hatimbhai
Chherwala – the ex-husband of the respondent in whose absence
no declaration could have been passed regarding the alleged
existence of the marriage between Mr.Mansoor Hatimbhai
Chherwala and the respondent on the date of alleged marriage of
the respondent with the father of the appellant and the
consequent alleged invalidity of the marriage between the
appellant’s father and the respondent.
27 Lastly, the learned counsel would submit that the
learned Family Court failed to appreciate that the appellant had
knowledge of the marriage between the respondent and her father
since 2003 and any petition challenging their marriage, therefore,
ought to have been filed within three years of the date of the
marriage. The learned Family Court was therefore wrong in
rejecting the objection raised on the point of limitation admittedly
when the petition had not been filed within three years.
28 The learned counsel also placed reliance on the
judgment delivered by various Courts in cases of Smiti Nitikona
Banerjee vs. Ram Prasad Banerjee7, Vasumathi vs. Chandriyani
Madhavi8, K.A.Abdul Jaleel vs. T.A. Sahida9 and Sri P. Srihari vs.
Kum. P. Sukunda and Another10.
: LOCUS STANDI :
29 The first plea raised by the learned counsel for the
respondent is that the appellant has no locus whatsoever to
challenge the validity of the respondent’s marriage to her father.
The learned counsel derives inspiration from the interpretation of
Section 7 of the Act and painstakingly dwelt upon nuances of
Section to bring home the point only to emphasize that besides
the parties to the marriage, no third party can seek a declaration
with regard to the validity of the marriage and more so when the
appellant’s father is no more.
30 It will be useful to refer the statutory provision
contained in Section 7 to the extent it is relevant for the purpose,
7 2018 SCC Online Gau 1577
8 1990 SCC Online Kar 66
9 1997 SCC Online Ker 83
10 2001 (1) A.P.L.J. (HC)
as follows :
“7. Jurisdiction.- (1) Subject to the other provisions
of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable
by any district court or any subordinate civil court
under any law for the time being in force in respect
of suits and proceedings of the nature referred to in
the explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or,
as the case may be, such subordinate civil court for
the area to which the jurisdiction of the Family
Court extends.
Explanation.- The suits and proceedings referred to
in this sub-section are suits and proceedings of the
following nature, namely:-
(a) a suit or proceeding between the parties to a
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.”
31 It does not take much discernment to see that the
Family Court has jurisdiction exercisable by any District Court or
by a subordinate Civil Court under any law for the time being in
force in respect of suits and other proceedings of the nature
referred to in Explanation (a) to (g). Clause (a) under the
Explanation refers to nature of proceedings between the parties to
a marriage for a decree of nullity of marriage, as the case may be,
annulling the marriage or restitution of conjugal rights etc.
Essentially, this is a proceeding between the spouses.
32 Clause (b) under the Explanation is in the nature of a
declaration as to the validity of a marriage or as to the
matrimonial status of any person. What should engage our
attention here is unlike Clause (a) it does not say that such suit or
proceeding should be between the parties to the marriage. To
note that Clause (b) is widely couched to encompass in its ambit
and include the proceeding of the nature referred to regarding
declaration of the validity of the marriage or it could be for a
declaration of the matrimonial status of any person, would be a
but fair comment.
33 Here we are also mindful of Statement of Objects and
Reasons of the Act. In the Objects and Reasons it is stated that :
“STATEMENT OF OBJECTS AND REASONS
Several association of women, other organisations
and individuals have urged, from time to time, that
family Courts be set up for the settlement of family
disputes, where emphasis should be laid on
conciliation and achieving socially desirable results
and adherence to rigid rules of procedure and
evidence should be eliminated. The Law
Commission in its 59th report (1974) had also
stressed that in dealing with disputes concerning the
family the Court ought to adopt an approach
radically different from that adopted in ordinary
civil proceedings and that it should make reasonable
efforts at settlement before the commencement of
the trial. The Code of Civil Procedure was amended
in 1976 to provide for a special procedure to be
adopted in suits or proceedings relating to matters
concerning the family. However, not much use has
been made by the courts in adopting this
conciliatory procedure and the courts continue to
deal with family disputes in the same manner as
other civil matters and the same adversary approach
prevails. The need was, therefore felt, in the public
interest, to establish Family Courts for speedy
settlement of family disputes.”
34 It is further stated that Family Court is intended to
provide an exclusive jurisdiction of the matters relating to
matrimonial relief including nullity of marriage, judicial
separation, divorce, restitution of conjugal rights or declaration as
to the validity of marriage or as to the matrimonial status of any
person, the property of the spouses or of either of them,
declaration as to the legitimacy of any person, guardianship of a
person or the custody of any minor, maintenance, including
proceedings under Chapter IX of the Code of Criminal Procedure.
35 Relying on the Objects and Reasons, the learned senior
counsel for the appellant earnestly submits that Clause (b) under
the Explanation must be construed having due regard to the
Objects and Reasons to the Act. Not only the spouses are entitled
to file the petition challenging the validity of the marriage but the
interested persons and beneficiaries related to the spouses may
also challenge it, supplemented the learned senior counsel.
36 The learned senior counsel has also drawn strength
from the decision given in Syamaladevi Devi (supra) wherein the
Kerala High Court while drawing a distinction between Clause (a)
and (b) under Explanation, pointed out that unlike Clause (a),
Clause (b) does not say that such proceedings should be between
the parties to the marriage. In other words, Clause (b) is widely
couched to include the proceedings of the nature referred to
regarding declaration of validity of the marriage or it could be for
a declaration of the matrimonial status of any person. We have
also offered same interpretation as to Clause (b) under the
Explanation and respectfully agree with the view taken in the case
of Syamaladevi Devi (supra).
37 In this case, the appellant is seeking declaration as to
the validity of the marriage of her late father with the respondent
and as also, according to her, the status of the respondent as on
today still continued to be the wife of Mr.Mansoor Cherwalla as
per provisions of Section 7 (1) Explanation (b) of the Act. Having
regard to the Objects and Reasons of the Act vis-a-vis literal
construction of Clause (b) under Explanation, in our considered
view, the appellant has every locus to bring in question the validity
of marriage of her father with the respondent and as also
respondent’s status.
38 The ratio laid down in the case of Vasumathi (supra),
K.A.Abdul Jaleel (supra) and Sri. P. Srihari (supra) cannot be
made applicable to the case in hand.
39 In Vasumathi (supra) the petitioner had sought
Succession Certificate under Section 372 of the Indian Succession
Act, 1925, from City Civil Court who transferred the proceedings
to the Family Court. The petitioner challenged this order before
the High Court. The learned Single Judge held that in the absence
of such a power having been conferred on the Family Court, the
Civil Court was not right in transferring the proceedings to the
Family Court.
40 In K.A.Abdul Jaleel (supra) the Division Bench of
Kerala High Court held that the disputes between the appellant
and respondent are to be decided by the Family Court and it has
got jurisdiction under Section 7(1)(c) of the Family Courts Act,
even though the appellant and the respondent are no longer
parties to a subsisting marriage.
41 Lastly, in Sri. P. Srihari (supra) the suit was filed by the
sisters against the brothers and others claiming partition of the
property left behind by their father. The Division Bench held that
by no stretch of imagination can the Family Court assume
jurisdiction, if there is a dispute between the brothers, sisters,
mothers, fathers etc. concerning property and the case on hand
being one such, the Family Court had clearly no jurisdiction.
Completely different situation then in the case in hand.
42 To say that, as is submitted by the learned counsel for
the respondent, the appellant has no locus, whatsoever, to
challenge the validity of respondent’s marriage with the
appellant’s father under Section 7 of the Act is nothing but a
straitened interpretation of the provision of Section 7 of the Act.
This is wholly incompatible with the spirit of Section 7 as well as
Objects and Reasons of the Act.
43 The inescapable conclusion is that the appellant’s case
will squarely fall under Section 7(b) of the Act. The plea of
respondent, therefore fails.
: NON-JOINDER OF NECESSARY PARTY :
44 Order 1 Rule 9 of the Code deals with mis-joinder and
non-joinder of parties. It reads as under :
“9. Mis-joinder and non-joinder. -
No suit shall be defeated by reason of the misjoinder
or nonjoinder of parties, and the Court may in every
suit deal with the matter in controversy so far as
regards the rights and interests of the parties
actually before it :
Provided that nothing in this rule shall apply to
nonjoinder of a necessary party.
A plain reading of Rule 9 makes it clear that mis-joinder or nonjoinder
of parties is not fatal unless it is non-joinder of necessary
party. Where either a necessary or proper party is not impleaded
in the array of parties, it is said to be non-joinder of party. A
necessary party is one without impleading whom no effective
decree can be passed. That is why a proviso is added in Rule 9
that nothing in the Rule shall apply to non-joinder of necessary
party.
45 The question to be considered is whether right of the
party shall be affected if he is not added as a party. In the instant
case, the appellant has come with a specific case that her father
was a widower at the time of alleged marriage with the
respondent. The respondent who portrayed herself as a divorcee
was not a divorcee at all and this fact was unearthed when the
appellant happened to come across copies of divorce documents
while going through the personal file of her father. It is her
further case that during verification of those divorce documents,
she came to know that the so called divorce document was
nothing but a forged document showing her to be divorcee of
Mr.Mansoor Hatimbhai Chherwala. Thus, according to her, the
marriage of respondent with her father was null and void for nonfulfillment
of conditions of Section 4(a) of the Special Marriage
Act. Needless to say, it is on this ground the appellant seeks
declaration that the marriage allegedly solemnized between her
father and respondent on 24th July 2003 is null and void and also
the status of respondent as on today continued to be the wife of
said Mr.Mansoor Hatimbhai Chherwala.
46 Since the appellant had branded the documents of
divorce allegedly arrived at between the respondent and her
erstwhile husband Mr.Mansoor Hatimbhai Chherwala as forged
and fabricated, necessarily the burden is on her to prove so by
adducing necessary evidence to that effect. Moreover, no specific
relief is claimed against Mr.Mansoor Hatimbhai Chherwala. At the
most, the appellant may opt to examine Mr.Mansoor Hatimbhai
Chherwala during the course of trial, if so advised, to prove that
he did not pronounce talaq to the respondent and the documents
submitted and relied on by the respondent at the time of her
marriage with the father of the appellant were invalid, improper
and fake. The respondent also may opt to examine Mr.Mansoor
Hatimbhai Chherwala to prove her case. In our view, it was thus
not necessary for the appellant to have impleaded Mr.Mansoor
Hatimbhai Chherwala in the present proceedings.
47 The learned senior counsel for the appellant during
the course of arguments also impressed upon us that there is no
necessity to joint Mr.Mansoor Hatimbhai Chherwala in the present
proceeding as any presumed testimony at his end with regard to
the validity of the divorce would have made no difference to
appellant’s case, particularly since the compliance of Fatimid law
with regard to valid divorce has not been carried out by the
parties. It appears to us that since the appellant has also raised a
grievance about the non-compliance of Fatimid Law governing the
valid divorce between the respondent and Mr.Mansoor Hatimbhai
Chherwala, this will necessarily require the evidence from both
the sides and on this count also, in our considered opinion, the
learned senior counsel is justified in his submission. Thus, for all
the aforesaid reasons, we do not find any merit in the second plea
as well. The second plea also, therefore, fails.
: LIMITATION :
48 In the present case the issue of limitation is raised by
the respondent. According to her, the appellant had knowledge
about the marriage between the respondent and her father since
2003 and, therefore, the petition ought to have been filed within
three years of the date of the marriage, which admittedly, was not
filed. This being so, the learned Family Court ought to have
rejected the petition on the point of limitation itself.
49 It is fairly settled that so far as issue of limitation is
concerned, it is a mixed question of fact and law. Looking at the
averments made in the petition we find that the alleged
fraudulent conduct of the respondent only came to be unearthed
after receipt of documents from the office of Marriage Officer,
Mumbai, on 10th and 12th February 2016 and thus the petition was
filed well within time. In our considered opinion, such an issue,
in the light of averments made in the petition, is required to be
determined having regard to the facts and the law.
50 Since, prima facie, it appears from the petition that
the alleged fraudulent conduct of the respondent was noticed by
the appellant on 10th and 12th February 2016 and the fact that the
petition immediately was filed after the discovery of the relevant
facts along with documents, it cannot be said that the petition was
barred by law of limitation. Even otherwise, in the light of
pleadings of both the parties, this will have to be determined by
the learned Family Court while deciding the petition finally. We,
therefore, do not find any merit in the submission. Therefore, the
third plea also fails.
51 In view of above, we hold that all the objections viz.
locus, non-joinder of necessary party and limitation raised by
respondent are rightly rejected by the learned Family Court.
: ORDER 2 RULE 2 OF THE CODE :
52 Order 2 Rule 2 of the Code reads as under :
“2. Suit to include the whole claim:
(1)Every suit shall include the whole of the claim
which the plaintiff is entitled to make in respect of
the cause of action; but a plaintiff may relinquish
any portion of his claim in order to bring the suit
within the jurisdiction of any Court.
(2) Relinquishment of part of claim: - Where a
plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted
or relinquished.
(3) Omission to sue for one of several reliefs: - A
person entitled to more than one relief in respect of
the same cause of action may sue for all or any of
such reliefs; but if he omits, except with the leave of
the Court, to sue for all such reliefs, he shall not
afterwards sue for any relief so omitted.
Explanation - For the purposes of this rule an
obligation and a collateral security for its
performance and successive claims arising under the
same obligation shall be deemed respectively to
constitute but one cause of action.
53 It is clear from the reading of Order 2 Rule 2 of the
Code that the object is to prevent multiplicity of suits. The Rule is
based on the principle that no one should be vexed twice for same
cause of action. The test for raising objection under the Rule is
that whether the claim made in the subsequent suit could have
been made in the earlier suit or not. The cause of action must be
same for application of the Rule.
54 In Sucha Singh Sodhi (supra) the Hon'ble Apex Court
at paragraph 26 held as under :
“26. In our opinion, the sine qua non for invoking
Order 2 Rule 2(2) against the plaintiff by the
defendant is that the relief which the plaintiff has
claimed in the second suit was also available to the
plaintiff for being claimed in the previous suit on the
causes of action pleaded in the previous suit against
the defendant and yet not claimed by the plaintiff.”
55 Therefore, we have to examine the question as to
whether the appellant was entitled to claim relief of declaration in
the previous suit(s) on the basis of cause of action pleaded by her
in the previous suits against the respondent in relation to the
validity of the marriage of her father with the respondent.
56 Perusal of the impugned order would show that
learned Family Court found that the appellant has filed three
original suits before this Court but it was not shown whether the
appellant had raised the issue of validity of talaq between the
respondent and her ex-husband Mr.Mansoor Chherwala in those
cases. The learned Family Court further noted that the appellant
raised very contention in her Notice of Motion No.1622 of 2006 in
Original Suit No.1018 of 2015 before this Court but did not find it
fit to include the prayer of declaration of validity or invalidity of
marriage between her father Navnitlal Shah and the respondent.
We also note that the learned Family Court was not clear whether
or not the appellant had pleaded these aspects in the Original Suit
No.1018 of 2015. This simply suggests that the learned Family
Court had failed to examine the pleadings in Original Suit
No.1018 of 2015.
57 It appears to us that the learned Family Court lost sight
of the fact that Original Suit No.1018 of 2015 was instituted in the
year 2015 whereas the Notice of Motion No.1622 came to be filed
in the year 2016 after the appellant discovered the fraud alleged
to have been played by the respondent pursuant to documents
dated 10th and 12th February 2016 secured by her through Right
to Information Application. Thus, there was disclosure and
discovery of new facts constituting new cause of action. We have
also pointed out the sine-qua-non for attracting mischief
contemplated under Order 2 Rule 2 is the same cause of action.
The learned Family Court, therefore, erred in holding that
provisions of Order 2 Rule 2 are attracted without examining the
cause of action in the earlier plaints filed by the appellant.
58 Let us examine it from another angle. We assume and
proceed on the premise that the learned Family Court did labour
to find out that cause of action before it was very much a part of
cause of action in the suits before this Court. What next the
learned Family Court ought to have taken into consideration was
whether in the light of Sections 7, 8 and 20 of the Act, this Court
has jurisdiction to grant declaration as to the validity of the
marriage between the appellant’s father and the respondent
sought by the appellant. In order to get an effective answer to this
question, we undertake a quick survey and implications of those
said Sections.
59 As far as Section 7 of the Act is concerned, we have
elaborately explained in the earlier part of our discussion and
therefore we reiterate the same.
60 Section 8 of the Act deals with the exclusion of
jurisdiction which reads as follows :
“8. Exclusion of jurisdiction and pending
proceedings.- Where a Family Court has been
established for any area,- .-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 subsection;
(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.”
61 Section 20 of the Act provides for over riding effect of
the Act on other laws or any instrument having the effect of law
which reads as under :
“20. Act to have overriding effect.- The provisions of
this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law
for the time being in force or in any instrument
having effect by virtue of any law other than this
Act. -The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in
force or in any instrument having effect by virtue of
any law other than this Act."
62 The Full Bench of this Court in Romila Jaidev Shroff
(supra) after analyzing Section 7(1), 8 and 20 of the Act, Section
2 (4) of the Code and Clause (12) of Letters Patent (Bombay) held
as under :
“On the basis of Section 7 of the Family Courts Act,
1984 so far as the suit for maintenance is concerned,
it is covered by the provisions of the said Act and,
therefore, the Court, as contemplated by the said
Act, will be the one to hear the same. Sections 7
and 8 of the Family Courts Act show that the
jurisdiction of the District Court as well as
subordinate Court is ousted in respect of the matters
which can be entertained by the Family Court. If
therefore in exercise of its Ordinary Original Civil
Jurisdiction within the local limits, High Court is
taking up those very matters which are covered by
the Family Court Cases, and if it is acting as a
District Court, it certainty would lose the
jurisdiction. With reference to section 2(4) of the
Code of Civil Procedure, for all practical purposes,
save and except section 120 of the Code of Civil
Procedure, the High Court which exercises its
Original Civil Jurisdiction will be in the same
position as the District Court in relation to a District
viz. Principal Civil Court of Original Jurisdiction.
The Original Civil Jurisdiction of the High Court is
confined to a limit and, therefore, that would be a
District Court for the purpose of High Court in
exercise of that jurisdiction. When the High Court
exercises its Ordinary Original Civil Jurisdiction in
relation to the matters under the Family Court Act, it
would be a District Court as understood therein. It
would, therefore, lose its jurisdiction.
63 Similarly, in Balram Yadav (supra) the Hon'ble Apex
Court held as under :
“7. Under Section 7(1) Explanation (b) of the Family
Courts Act, 1984, a Suit or a proceeding for a
declaration as to the validity of both marriage and
matrimonial status of a person is within the
exclusive jurisdiction of the Family Court, since
under Section 8 of the said Act, all those
jurisdictions covered under Section 7 are excluded
from the purview of the jurisdiction of the Civil
Courts. In case, there is a dispute on the
matrimonial status of any person, a declaration in
that regard has to be sought only before the Family
Court. It makes no difference as to whether it is an
affirmative relief or a negative relief. What is
important is the declaration regarding the
matrimonial status. Section 20 of the Family Courts
Act also endorses the above since the said Act has an
overriding effect on other laws.”
64 Having closely studied and pondered and in the light
of above pronouncements an irresistible and inescapable
conclusion would be that when the High Court exercises its
ordinary original civil jurisdiction in relation to the matters under
the Act, it would be a District Court as understood therein.
Resultantly, it would be denuded of its jurisdiction. In our view,
since in view of Explanation (b) to Section 7(1) of the Act, the
reliefs sought in the proceedings filed before the Family Court
could not have been granted by the Civil Court in the suits filed by
the appellant, question of applicability of Order 2 Rule 2 did not
arise even remotely.
65 The learned counsel for the respondent, in this regard,
heavily placed reliance on the decision of Smiti Nitikona Banerjeec
(supra) wherein the High Court of Gauhati (Division Bench) while
interpreting Section 7(b) of the Act held that though in Section
7(b) of the Act, the expression “parties to a marriage” does not
occur, keeping in view the nature of relief that is provided before
the Family Court, it would be only between the parties to a
marriage to seek for such declaration for their benefit against the
person who claims or contends not to be a party to the marriage.
It further held that if that aspect of the matter is kept in view, a
third party questioning the marriage of any other party would not
be entitled to maintain proceedings before the Family Court. In
any event, if such a party has any grievance, the remedy is
available before the ordinary civil Court by filing a suit therein.
66 We, respectfully differ from what has been held by the
learned Judges of the Gauhati High Court for the simple reason
that it is against not only the letter and spirit of provision of
Section 7 but as also against the rationale behind the Object and
Reasons of the Act, which we have already adhered to and
explained. Besides, the observations of the Gauhati High Court
appears to be wrong in the teeth of decision given in Balram
Yadav (supra) by the Hon'ble Apex Court.
67 In view of the foregoing discussion, we cannot concur
with the reasoning and conclusion arrived at by the learned
Family Court which wrongly dismissed the appellant’s petition as
being barred by the provision of Order 2 Rule 2 of the Code. We
are satisfied that the impugned order of the learned Family Court
cannot be sustained to the extent to which the bar enacted under
Order 2 Rule 2 of the Code has been applied.
68 We, therefore, pass the following order :
ORDER
(i) Appeal succeeds and is accordingly allowed.
(ii) The impugned order is set aside to the extent that the
petition is barred by provision of Order 2 Rule 2 of the Code.
(iii) Cross Objection stands dismissed.
(iv) Family Court Petition No.B-62 of 2016 filed by the appellant
against the respondent is held maintainable. It is
accordingly restored to its original file for being tried on
merits and in accordance with law.
(v) The learned Family Court is directed to decide the Family
Court Petition No.B-62 of 2016 expeditiously and
preferably within six months from the date of receipt of this
order on its own merit.
(vi) No orders as to costs.
(V. G. BISHT, J.) (R.D.DHANUKA, J.)
Learned counsel for the respondent seeks stay of the operation of
the order. Application for stay is rejected.
(V. G. BISHT, J.) (R.D.DHANUKA, J.)
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