1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT {LODGING} NO.384 OF 2009 Smt. Sabah Adnan Sami Khan, an adult Arab National, aged 34 years, Occ: Business, at present residing at Flat No.1301 AC and Flat No.1401 ABC, Oberoi Sky Garden, A-Wing, 3rd Cross Lane, Lokhandwala, Andheri (West), Mumbai – 400 053. .... Plaintiff - Versus - Shri Adnan Sami son of Arshad Sami Khan, an adult Pakistani National, aged 39 years, Occ: Artist, at present residing at Flat No.1301 AC and Flat No.1401 ABC Oberoi Sky Garden, A-Wing, 3rd Cross Lane, Lokhandwala, Andheri (West), Mumbai – 400 053. .... Defendant Shri S.U. Kamdar, Senior Counsel a/w Shri Rashid Khan and Ms Tasneem Zaidy i/b M/s. Zaidy & Co. for the Plaintiff. Shri Ravi Kadam, Senior Counsel a/w Ms Vibhav Krishna i/b M/s. Juris Consillis for the Defendant. CORAM: SHRI A.V. NIRGUDE, J. DATED: FEBRUARY 17, 2009 ORDER: 1. At the ad-interim stage, I asked the ld. counsel appearing for the plaintiff to satisfy me as to whether this Court has jurisdiction to entertain the present suit. My immediate reaction to the plaint was that the suit should 2 be filed in the Family Court and this Court would not have jurisdiction to entertain it. So, although formal issue has not been framed to decide as to whether this Court has jurisdiction to entertain this suit, the submissions made by the counsel of both the sides virtually covered the issue and I am deciding the same by this order. 2. Both the ld. counsels agreed that the issue of jurisdiction should be decided on the basis of the averments in the plaint only and and the defence has to be ignored while doing so. 3. The facts mentioned in the plaint are: The plaintiff is the wife of the defendant. She is an U.A.E. National. On the other hand, the defendant is a Pakistani National. They married at Mumbai as per the Muslim personal law applicable to them and got their marriage registered with the Office of the Registrar of Marriages at Bandra, Mumbai. After the marriage, the parties started residing at a flat in Lokhandwala Complex, Mumbai. This flat belonged to the defendant- husband. Thereafter, the parties moved their residence to a building by name Oberoi Sky Garden. The defendant had purchased eight flats in the said building and out of the said eight flats, he gifted five flats to the plaintiff through registered gift deeds and he kept for himself three flats. The couple started residing in the five flats which they got inter- connected to make a bigger flat. But soon the defendant's behaviour towards the plaintiff started deteriorating. He very often had fights with the plaintiff using filthy language and at times he became violent, resulting into physical violence. The defendant also consumed excess alcohol and misbehaved with the plaintiff. It is thus the plaintiff's case that the defendant created such a 3 situation that it is impossible for her to reside and cohabit with him. On this cause of action, she said that she would be entitled to a declaration that the five deeds of gifts dated 12-5-2008, executed by the defendant in favour of the plaintiff were valid and binding and to get the defendant removed from them. The question, therefore, is whether a plaint of this nature is maintainable as a civil suit in this Court. 4. Shri S.U. Kamdar, learned senior counsel appearing for the plaintiff initially asserted that at this stage (ad-interim stage) the Court should not look into the issue of jurisdiction, it should first deal with the application, decide it and then in view of section 9-A of the Code of Civil Procedure (“CPC”, for short) decide the issue of jurisdiction at a later stage. But as indicated above, I do not accept this course. I think the court should in appropriate cases use the powers of the Court given in Rule 283 of the Bombay High Court (Original Side) Rules, 1980, (hereinafter called as the “Original Side Rules”), which is almost pari materia with the provision of Order 7, Rule 10 of the CPC. The Rule 283 reads as under: “R.283. Return of Plaint – (i) The Court or the Judge in Chambers may at any stage of the suit order the plaint to be returned to the plaintiff to be presented to the Court in which the suit should have been instituted. (ii) When an order for return of the plaint is made, the Prothonotary and Senior Master or any officer subordinate to him shall endorse on the plaint (a) the date of its presentation, (b) the date of the order for its return, © the date on which the plaintiff furnishes a copy of the plaint and the date on which it 4 is certified as a true copy by the office of the Prothonotary and Senior Master, as provided in sub-rule (iii) of this rule, and (d) the date of the return of the plaint. (iii) The plaint shall be returned only after the plaintiff has furnished, for the record of the Court, a copy of the plaint and the said copy has been certified as a true copy by the office of the Prothonotary and Senior Master.” 5. Shri Kamdar asserted that this Court may not have power to return the plaint because, according to him, such an order can be passed only by the 'Judge in Chambers' and I at present am not designated as 'Judge in Chambers'. The provisions of Rule 283 of the Original Side Rules makes it amply clear that any Judge sitting on the Original Side of the High Court, Bombay might at any stage of any suit order a plaint to be returned. There can be various reasons why a plaint could be returned and as indicated above, I strongly feel, for want of jurisdiction, I should return the plaint. The reason why I am taking such a drastic step at such an initial stage would be discussed in the further paragraphs of this order. 6. The main contention between the parties is whether the plaint of this nature would fall within the four corners of Section 7 of the Family Courts Act, 1984, hereinafter called as “FCA”. The relevant provisions of Sections 7, 8 and 20 are 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 5 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 proceeding of the following nature, namely:- (a) & (b) ...... (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), (e), (f) & (g) ...... 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) & (c) ...... 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.” 6 7. Shri Kamdar argued that this suit is in respect of a claim relating to the property and not a for seeking a matrimonial relief. He asserted that the plaintiff simply wants a declaration of ownership of certain property and since she has not claimed any matrimonial relief, the suit cannot fall within the four corners of Section 7 of the FCA. 8. In order to discuss this submission I have to analyze the provision of S.7. It first lays down the rule that the Family Court should be able to exercise the jurisdiction of the District Court or as the case may be of a subordinate Civil Court. 9. The second part of this section enumerates the types of cases which the Family Court would entertain. The first two types of cases -clauses (a) and (b)- directly relate to matrimonial reliefs such as decree of nullity, restitution of conjugal rights, judicial separation, dissolution of marriage and validity of marriage. The third and fourth clauses -(c) and (d)- of the list deal with suit between the parties to a marriage with respect to the property of the parties and also suit for an order of injunction in the circumstances arising out of marital relationship. The Clause (e) deals with suit or proceeding for a declaration as to the legitimacy of any person. While the Clause (f) deals with a suit for maintenance, the Clause (g) deals with a suit in relation to the guardianship, etc., of a minor. 10. This is certainly a suit between parties to a subsisting marriage. It is in respect of the property apparently owned by the plaintiff and the plaintiff wants a declaration in respect of this property against the defendant. The right of the plaintiff to this property according to Shri Kamdar has no relation to the matrimonial dispute. But the clause (c) makes no distinction as 7 to whether the property has to have any relation or concern to the matrimonial dispute. Besides Shri Kamdar's submission is even factually incorrect. The plaintiff admittedly claims right to these flats as gift of the defendant. Although it is not stated clearly it seems from the averments of the plaint that she felt threatened due to the defendant's hostile aggression. She impliedly suggested that the defendant husband had disown the gift he had given to her and had encroached her proprietary right to the suit flats. This alone prompted her to file this suit seeking declaration of title. So it is still a suit that would squarely be covered by Clause (c) of Section 7 of the FCA. 11. Even Clause (d) would apply to the facts of the case because the plaintiff is also seeking an order of injunction and clearly such an order is sought due to the marital dispute between the parties. I am aware that the relief of injunction in this suit is a consequential one and, therefore, the plaintiff would be able to assert that the case may not fall within the ambit of Clause (d). But this is also a debatable argument. 12. As said above, the plaintiff said that she is the owner of the suit property. These flats were transferred in her favour by way of gift deeds recently in 2008. Previously, the defendant was the owner of these property. But the plaintiff in her entire plaint has not indicated that the defendant is disputing her ownership to the suit property. On the contrary, it is the case of the plaintiff that she and the defendant are staying in these flats and the defendant is treating her with cruelty interalia by directing his servant not to provide food to her, etc.. So, there is virtually no need for the plaintiff to seek a declaration in respect of ownership. All that the plaintiff needs is the defendant's removal from her property which is a mandatory injunction 8 against the defendant. Had the plaintiff filed this suit only for mandatory injunction, it would have been covered by Clause (d) of Section 7 of the FCA. So looking to the facts mentioned in the plaint and from that angle, the suit would still fall within the four corners of Clause (d). 13. The provisions of Section 8 make it further clear that where a Family Court has been established for any area, no District Court or any subordinate civil Court referred to above should have any jurisdiction in respect of any suit of the nature referred to in Section 7 of the FCA. The controversy as to whether the High Court is a District Court, has been settled long back by a Full Bench of this Court in the matter of Romila Jaidev Shroff v. Jaidev Rajnikant Shroff, reported in 2000 (4) Bom.C.R. 122. In this judgment, the Full Bench unequivocally held that “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.” 9 14. Mr. Kamdar placed reliance firstly on the judgment of Prem Lata Parihar reported in AIR 2004 Rajasthan 296. The facts of this case were quite different where an unmarried daughter sought injunction restraining her father and brothers from interfering with her right to reside in her ancestral house. The High Court decided that the right would not fall within the purview of Section 7 of the FCA and so, the Civil Court has jurisdiction to adjudicate upon the said right. Mr. Kamdar relied on this judgment to point out that in this case the plaintiff's right was in respect of property and since it did not relate to matrimonial dispute, it could not go to the Family Court. I have discussed above as to how this argument is unacceptable. So, the reliance on this judgment is not useful to decide the controversy in this suit. 15. Mr. Kamdar next placed reliance on the judgment of the Supreme Court in the case of Renubala Moharana reported in 2004 (5) ALL MR (SC) 765. Again the facts of this reported case are entirely different. It was a petition before the Family Court filed by the grand-parents of a minor child for a declaration that the minor child was the legitimate son of the petitioners' late son and for their appointment as guardians, etc.. The Courts below as well as the Supreme Court held that the relief sought by the petitioners could not be granted by the Family Court because the declaration as to the legitimacy of the child was sought without any claim of marital relationship but the Supreme Court did not disturb the High Court's direction to the Family Court and considered and decided the question of guardianship and custody of the minor child between the parties taking into account the evidence that was adduced (but was not discussed) by the said Court. In effect, the High Court held that while deciding the petition for guardianship or 10 custody, the question of status or inter se relationship of the parties could be incidentally considered by the Family Court. This judgment obviously has no application to the facts of this case and no reliance can be placed on it. 16. Similar is the case of reliance on the judgment of the Division Bench of this Court in the case of Syndicate Bank v. East India Hotels Ltd., Bombay, reported in 2005 (2) Mh.L.J. 363 . 17. In this background, reliance placed by Shri Ravi Kadam, learned counsel appearing for the defendant, on the judgment of the Supreme Court in the case of K.A. Abdul Jaleel v. T.A. Shahida, reported in (2003) 4 SCC 166, would not only decide the question of jurisdiction but would also prompt me to decide it as soon as possible. The question before the Supreme Court then was whether a Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties. It was tried to be contended that since the suit came to be filed after the divorce of the parties, the Family Court would have no jurisdiction under Section 7 of the FCA. The Supreme Court rejected this contention and held as under: “10. The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of objects and reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts matters relating to the property of the spouses or either of them. Section 7 of the Act provides for the 11 jurisdiction of the Family Court in respect of suits and proceedings as referred to in the Explanation appended thereto. Explanation (c) appended to Section 7 refers to a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. 11. & 12. ...... ...... 13. The Family Court was set up for settlement of family 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 approach radically different from that adopted in ordinary 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 well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. This 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.” 18. This case thus would squarely fall within the ambit of Section 7 (c) and (d) of the FCA and so this Court has no jurisdiction to try and decide the same. 19. Before I part with this matter, I must mention as to why I took up this question at such an early stage. As said above, when a suit is filed and 12 an application of any nature is moved before a Civil Court, the Civil Court is duty bound to decide as to whether it has jurisdiction to entertain such a complaint. In my view, when a suit falls apparently and palpably beyond the Court's jurisdiction, the Court must examine such issue promptly. In my view, in appropriate cases, this exercise can be undertaken even before issuance of summons to the defendant. This would curtail unnecessary litigation and would redirect the party to the appropriate forum. In this case, such an exercise is more necessary because the plaintiff should be able to press her application sooner. The nature of allegations is rather alarming. 20. There appears no dispute between the parties as to whether their dispute should go to the local Court i.e. the Court in whose local limits the parties reside and the suit property is situated. The plaintiff has conceded by filing this suit in this Court that although the plaintiff and the defendant are not Indian citizens, yet the local Courts would have jurisdiction to entertain their marital and related disputes. 21. I have decided the issue against the plaintiff. This would prompt the plaintiff to approach the appropriate forum, without further delay. Since this Court has no jurisdiction to entertain this suit, the plaint is directed to be returned to the plaintiff for presentation before the Court in which it should have been instituted. The Prothonotary and Senior Master, High Court, Bombay to act accordingly. Sd/- (A.V. Nirgude, J.) sjs/F9sl384.9 13