1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8617OF 2009 Smt.Jyoti Ajit Pandit. .. Petitioner versus Vinay Keshav Deshpande. .. Respondent -- Mr.Ashok Joshi with Smt.G.M.Sardesai for Petitioner Mr.A.J.Kandarkar for respondent -- CORAM : A.S.OKA, J. JUDGMENT RESERVED ON : 5TH FEBRUARY, 2010. JUDGMENT PRONOUNCED ON : 15th February 2010 JUDGEMENT :- 1. By this writ Petition under article 227 of the Constitution of India, the petitioner who is the original plaintiff has challenged an order passed by the trial Court by which the plaint in the suit filed by her has been ordered to be returned for presentation to appropriate Family Court. There is also a challenge to the judgment of the District Court by which the said order was confirmed in an appeal preferred by the petitioner. 2. The petitioner filed a suit for declaration that she is the real and exclusive owner of the properties described in paragraph 13 of the 2 plaint. The suit properties consist of a residential flat and a plot of land. The petitioner and the respondent married with each other on 19th November 1981. The marriage between the parties was admittedly dissolved by a Decree of divorce passed by the Family Court prior to institution of suit by the petitioner. The case of the petitioner is that she purchased the suit flat by an agreement dated 13th October 1983 executed by a builder and developer. According to the case of the petitioner, as the respondent was having a facility of housing loan through his employer from a financial institution , the respondent requested that the flat may be purchased under the joint names of the petitioner and the respondent. The case of the petitioner is that the entire initial consideration amount was paid by her from her income and by borrowing some amount from her father. It is her case that certain amount was paid by the respondent by borrowing the same from his father, his sister and a common friend. According to the case of the petitioner, she repaid the said amounts in cash from her own income to the respondent. The case made out by the petitioner is that though instalment of loan was deducted from the salary of the respondent, she reimbursed the said amount every month to the respondent. It is contended that after the respondent resigned from his employment, the loan instalments were directly paid by her. The petitioner stated in the plaint that the entire consideration for acquiring the suit plot was paid by her and the respondent was a mere benamidar. It is contended that the suit plot is held by the respondent for the benefit of the petitioner and that the petitioner is the owner of the suit plot. 3 3. The respondent filed written statement and contested the suit. The respondent made a Counter -claim and prayed for a declaration that he was the exclusive owner of the suit plot. He prayed for partition of the flat. A preliminary issue was raised by the respondent by contending that the suit was not maintainable in a Civil Court and in view of explanation (c) to section 7 read with section 8 of the Family Courts Act, 1984 (hereinafter referred to as "the said Act" ), the Family Court had exclusive jurisdiction to entertain the suit and the Counter- claim. By the impugned order , the trial Court upheld the said contention and returned the plaint for presentation to proper court. The learned trial Judge gave a liberty to the respondent to get his counter- claim returned. The learned District Judge confirmed the said order of return of plaint in an appeal preferred by the petitioner. 4. The learned counsel appearing for the petitioner submitted that the marriage between the petitioner and the respondent was dissolved in the year 1994 and the suit was filed in the year 1999. He submitted that on the date of institution of the suit the marriage between the petitioner and the respondent was not subsisting and therefore, the parties to the suit cannot be described as the parties to a marriage. He submitted that even assuming that the Family Court had jurisdiction to entertain the suit, even the Civil Court had concurrent jurisdiction to entertain and try the suit. He placed reliance on a decision of the Apex Court in the case of the Premier 4 Automobiles Limited versus the Kamlakar Shantaram Wadake and others ((1976) 1 Supreme Court Cases 496) .He submitted that essentially the dispute between the parties is not a matrimonial dispute and therefore, the jurisdiction of a Civil Court is an alternative and it is for the plaintiff to elect the remedy. The learned it counsel for the respondent placed reliance on a decision of the Apex Court in the case of K.A.Abdul Jaleel versus T.A.Shahida ((2003) 4 Supreme Court Cases 166). He submitted that the Family Court has exclusive jurisdiction to entertain and try the suit in view of section 8 of the said Act. 5. I have given careful consideration to the submissions made by the learned counsel. According to the case of the petitioner , the suit prop- erty was acquired by her when the marriage between the parties was sub- sisting. The case of the petitioner is that the suit property is exclusively owned by her and a declaration of ownership is claimed by her. The sec- tion 7 of the said Act which deals with the jurisdiction of a Family Court which reads thus: “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 un- der any law for the time being in force in respect of 5 suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jur- isdiction under such law, to be a district court, 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 mar- riage 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; 6 (c) a suit or proceeding between the parties to a mar- riage with respect to the property of the parties or of either of them; (d) a suit of proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit of proceeding for a declaration as to the le- gitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit of 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 7 (b) such other jurisdiction as may be conferred on it by any other enactment.” 6. The section 8 of the said Act excludes jurisdiction of the other Courts. The said section reads thus: “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 re- ferred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any juris- diction 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 powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); 8 (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 re- ferred 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 in- stituted 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.” 7. The clause (c) of the explanation to section 7 of the said Act covers a suit between the parties to a marriage with respect to the property of the parties or of either of them. A Family Court has the jurisdiction exercisable by Civil Court in respect of suits of the nature referred to in the 9 Explanation under section 7. In view of section 8 of the said Act, where a family court has been established for any area, the jurisdiction of a District Court or a Civil Court is ousted. Therefore, the only question which arises in the present petition is "whether after the dissolution of marriage, the husband and wife can be termed as ‘the parties to a marriage’ within the meaning of clause (c) of the explanation to section 7 of the said Act ?" 8. The question is no longer res integra. The same issue arose in the case of K.A.Abdul Jaleel (supra). The Apex Court dealt with the State- ment of Objects and Reasons of the said Act. In Paragraph 11 of the Judge- ment, the Apex Court observed thus: “The wording “disputes relating to marriage and family affairs and for matters connected therewith” in the view of this Court must be given a broad construction. The Statement of objects and reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean the properties claimed by the parties thereto as a spouse of the other; irrespective of the claim whether the property is claimed during the subsistence of a marriage or otherwise.” ( Emphasis added) Thereafter, in paragraphs 12 to 14, the Apex Court held that: “12. The submission of the learned counsel to the ef- fect that this Court should read the words “a 10 suit or proceeding between the parties to a mar- riage” as parties to a subsisting marriage, in our considered view would lead to miscarriage of justice. 13. The Family Court was set up for settlement of fam- ily disputes. The reason for enactment of the said Act was to set up a court which would deal with disputes concerning the family by adopting an ap- proach radically different from that adopted in or- dinary civil proceedings. The said Act was enacted despite the fact that Order 32-A of the Code of Civil Procedure was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976, which could not bring about any desired result. 14. It is now a well-settled principle of law that the jurisdiction of a court created specially for res- olution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up.” 11 (Emphasis added) The Apex Court negatived the contention that the jurisdiction exercisable by any Family Court between the parties to a marriage would mean parties to a subsisting marriage. The Apex Court also held that the jurisdiction of the Family Court extends in relation to properties of spouses or either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other, irrespective of the fact whether the properties are claimed during the subsistence of a marriage or otherwise. Thus, the view taken by the Courts below that clause (c) of the explanation to section 7 will apply to the present suit is correct. 9. In view of section 8 of the said Act, the jurisdiction of a District Court or a Civil Court is expressly taken away. Reliance placed on the decision of the Apex Court in the case of the Premier Automobiles Ltd (supra) will not help the petitioner. In the said decision, the Apex Court held that if the dispute between the Parties is an industrial dispute arising out of a liability under the general common-law and not under The Industrial Disputes Act, 1947, the jurisdiction of the Civil Court is alternative, leaving it to election of a suitor to choose his remedy. In the present case, the jurisdiction of a Civil Court is ousted by operation of the section 8 of the said Act. Hence, no fault can be found with the order returning the plaint. The said order will also govern the Counter-claim of the respondent. 12 10. Hence, there is no merit in the petition and the same is rejected. There will be no order as to costs. JUDGE