1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.126 OF 2005 WITH CIVIL APPLICATION NO.215 OF 2005 Caroline Gabriele alias Kaneez Fatima Sadique Raza Naqvi .. Appellant. Vs. Mohammed Sadique Raza Naqvi .. Respondent. Ms.Zahra Tejani for the appellant. Coram : D.B. BHOSALE AND R.Y.GANOO, JJ. Dated : 5TH JANUARY, 2010 ORAL ORDER: This appeal is directed against the judgment and order dated 2nd November, 2004 rendered by the Family Court in Petition No.A-1118 of 2003 by which the petition filed by the appellant under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short “the Act”) has been dismissed as not tenable. 2. The petitioner and the respondent originally belong to Christain and Muslim religions respectively. They were married on 22nd September, 1979, according to the Christain rites for marriage at St.Blaises Church, Amboli, Mumbai. Thereafter, admittedly, they also got married according to the Muslim rites for 2 marriage on 18.1.1991 after the appellant was converted as muslim. After their marriage they resided at Kuwait and during holidays in India. Since the other factual details are not relevant for disposing of this appeal we are avoiding to make reference thereto. 3. In this appeal, the appellant-wife has challenged the impugned judgment by which the family court has dismissed her petition as not tenable in the family court under section 3 of the Act. She had filed a petition being Petition No.A-1118 of 2003 in the family court at Bandra under section 3(2) of the Act for the following reliefs: “(a) That the Hon’ble Court be pleased to grant a decree of divorce dissolving the marriage solemnised on 22nd September, 1979 between the Petitioner and the Respondent as per provision of Muslim Women Protection of Rights on Divorce Act, 1986 u/s 3(2). (b) The Respondent be decreed to return all the ornaments if not money amounting to Rs.11 lakhs 45 thousand which forms the dowry of the Petitioner and the ornaments and things are in the custody of the Respondent. (c) The Hon’ble Court be pleased to direct the Respondent to pay maintenance pendent lite towards me and to Rs.15,000/- per month. (d) The Hon’ble Court be pleased to order by which the Respondent be allowed to pay Rs.15,00,000/- to the Petitioner as and by way of permanent alimony. 3 (e) The Hon’ble Court be pleased to order by which the Respondent provide the Petitioner a permanent shelter in the form of a flat in a decent locality a residence in Mumbai. (f) That this Hon’ble Court be pleased to grant an ad-interim and interim reliefs in terms of prayers to the Petitioner. (g) That the cost of the Petition be provided for. (h) That for such other and further reliefs as the nature and circumstance of the case may require.” 4. In the petition, the respondent-husband had filed an application being Exhibit-11 for framing a preliminary issue, raising the question of jurisdiction of the Family Court under section 3 of the Act. From bare perusal of the prayers made in the petition filed by the appellant it is clear that she had filed the petition for seeking divorce, maintenance, right in the property including the right of residence etc. In view thereof the application at Exhibit-11 was filed by the respondent-husband raising the issue as to jurisdiction of the family court. From perusal of the impugned judgment it appears that main ground of objection raised by the respondent-husband was that the petition for divorce instituted by the appellant-wife under section 3 of the Act was not tenable in the family court under section 19 of the Family Courts Act, 1984 (for short “the Act of 1984”). It appears that before filing of the present petition, the appellant had filed a 4 suit seeking right in the property and that the suit was transferred to the family court. The family court, however, had transferred that matter to the court of Metropolitan Magistrate. The learned Metropolitan Magistrate, however, had dismissed the petition for non prosecution. It further appears that there was family settlement containing the recitals about divorce. Thereafter, the appellant had also filed one more petition being Petition No.A-1381 of 2001 in the family court for divorce and maintenance which she had withdrawn. It is against this backdrop it was contended that the appellant was not entitled to file the instant petition for divorce, maintenance, right in the property and for residence. 5. The family court while dismissing the petition, filed by the appellant, has observed that earlier petitions filed by the appellant were dismissed and hence the instant petition under section 3 of the Act is not tenable. Thereafter the family court, after making reference to the family arrangement which was signed by the appellant, held that she cannot maintain the present petition for divorce and maintenance and that if, according to her, the said family arrangement/agreement was one sided and she was not satisfied with the same she has a remedy to challenge the said agreement in an appropriate proceedings, and in any case her petition under section 3 of the Act for divorce is not tenable. 5 6. In view of these prayers the issue of jurisdiction was raised by the respondent-husband and it was considered by the family court and the petition was disposed of as not tenable. The family court has, however, disposed of the petition as not tenable overlooking the application filed by the appellant for amendment by which she sought to delete the prayers (a), (c), (d) and (f) and add few more prayers in the petition. This application for amendment at Exhibit-10 was filed by the appellant on 8th July, 2004 and it was adjourned to 26.8.2004. Thereafter the application for amendment was not considered by the family court and, keeping the same pending, the application for framing preliminary issue at Exhibit-11 filed by the respondent-husband was considered and the impugned order was passed. The family court, it seems, has thereafter disposed of the application at Exhibit-10 for amendment observing that “since the petition itself is dismissed as not tenable this application stands disposed of”. In our view the family court ought to have decided the amendment application at Exhibit-10 before passing any order on the application at Exhibit-11 and considered the effect of the order passed therein on the main petition. 7. In this appeal though the respondent was served he chose to remain absent and hence we had assistance of learned counsel 6 appearing on behalf of the appellant only. She raised only one contention that the family court ought to have decided the amendment application filed by the appellant before passing any order on the application at Exhibit-11 filed by the respondent. She also submitted that though the appellant has filed an application under section 3 of the Act, she has instructions to file another application, seeking further amendment to convert her petition from the petition under section 3 of the Act to the petition under other appropriate provision of law in order to maintain her application before the family court. She submitted that the appellant, who is running from pillar to post since last few years for her rights, may be given liberty to further amend her petition. Having regard to overall facts and circumstances of the case and the fact that, as observed earlier, the family court ought to have decided the application at Exhibit-10 filed by the appellant before passing any order on the application at Exhibit-11, the impugned order, in our opinion, deserves to be set aside. We, therefore, dispose of the appeal by the following order: The order dated 2nd November, 2004 passed by the family court on the application at Exhibit-11, impugned in the present appeal, is set aside and the petition No.A-1118 of 2003 is restored to file. The application at Exhibit-11 also stands restored to file. The appellant has a liberty to seek further amendment of the 7 original petition, if so advised, within a period of four weeks from the date of receipt of this order. The family court shall proceed to decide the application at Exhibit-10 so also the fresh application, if filed within the time stipulated, seeking further amendment of the main petition expeditiously and after considering the effect of the order passed on the application/s for amendment, the learned Judge shall proceed to decide the application at Exhibit-11 afresh in accordance with law. If the family court holds that it has jurisdiction to entertain the petition after the amendment is granted, it shall proceed to hear the petition on merits in accordance with law expeditiously. The appeal is, accordingly, disposed of in terms of this judgment. No costs. Consequently, the civil application is also disposed of. While disposing of the appeal we shall not be understood to have expressed any opinion on merits of the case. (R.Y.GANOO, J.) (D.B.BHOSALE, J.)