Misc. Civil Application No. 1231 of 2007

30th April, 2008

Petitioner Counsel: Mrs. P. N. CHANDEKAR
Respondent Counsel: Mr. P. Y. DESHPANDE

Cases Cited:
Mr. Shakuntala Modi Vs. Om Prakash Bharuka, AIR 1991 SC 1104 [Para 17]
Krishnan Nambudiri Vs. Thankamani, II(1994) Divorce & Matrimonial Cases 223 [Para 17]
Raichal John Vs. Francis Minan, II(1995) Divorce & Matrimonial Cases 225 [Para 17]
Shyni Vs. George, II(1997) Divorce & Matrimonial Cases 676 [Para 17]
Sangeeta B. Kadam Vs. Balkrishna Ramchandra Kadam, I(2006) Divorce & Matrimonial Cases 296 (DB) [Para 17]
Smt. Vasumathi Vs. Chandriyani Madhavi, AIR 1991 Karnataka 201 [Para 17]
P. Srihari Vs. Kum. P. Sukunda, AIR 2001 Andhra Pradesh 169 [Para 17]
K. A. Abdul Jaleel Vs. T. A. Shahida, 2003(3) ALL MR 754 (S.C.)=AIR 2003 SC 2525 [Para 17]
Arunkumar Vs. Shrinivas, AIR 2003 SC 2528 [Para 17]
Devki Antharjanam Vs. Narayanan Namboodiri, AIR 2007 Kerala 38 [Para 17]
Sarojini Prabhu Vs. Pappikutty Adiesiar, AIR 2007 Kerala 44 [Para 17]
S. R. Batra Vs. Taruna Batra (Smt.), 2007 ALL MR (Cri) 3589 (S.C.)=(2007)3 SCC 169 [Para 17,26]

JUDGMENT

JUDGMENT :- Rule. Rule returnable forthwith and is heard by consent.

2. Petitioner is daughter in law of the respondent.

3. She claims that the Special Civil Suit No.273 of 2007 filed by respondent her father-in-law, which is pending in the Court of Jt. Civil Judge, Senior Division, Amravati be transferred to the Family Court at Nagpur.

4. According to the petitioner :-

(a) She was married to Santosh S/o. respondent original plaintiff on 30-6-1998, and the matrimonial status subsists. She was required to file a proceeding No.A-415-03 in the Family Court at Nagpur.

(b) In the conciliation before the Conciliator, a compromise was arrived at and she was taken back by her husband to matrimonial home.

(c) The matrimonial home is the same which is the suit house subject matter of special Civil Suit No.273 of 2007 pending before the Jt. Civil Judge, Senior Division, Amravati.

(d) The consent terms, which were filed in the Family Court, para 1 read as follows:-

"1) Petitioner and respondent have forgotten their dispute. Both decided amicably that both along with son and daughter will reside together since 8-1-2004 on trial basis. Husband Santosh will come before counselor on 8-1-04 and thereafter from her parent's house Santosh will take her wife at Budhwara Amravati".

[quoted from page 10 of the Misc. Civil Application Paper-book].

(e) The consent terms are dated 31-12-2003 and from that date till the petitioner was reached at her parents' place at Nagpur for Diwali of 2007, she was staying at her husband's house, where they were staying with his father in Budhwara Amravati.

5. The petitioner's emphasis is on the averment that place of residence of the husband of the petitioner to be Budhwara Amravati i.e. suit house in relation to which present respondent plaintiff is seeking relief of perpetual injunction.

6. The respondent/plaintiff's averments and claim in suit can be better read by quoting para No.3 of the plaint, which reads as follows :-

"3. It is submitted that in the oral partition effected on 21-9-1969 between the plaintiff, his wife Sau. Usha, mother of the plaintiff late Smt. Rukhmabai and his son Santosh alias Ambadas, one-half portion of the suit house was put to the share of the plaintiff and remaining one-half portion of the suit house was put to the share of mother of the plaintiff late Smt. Rukhmabai. That as the plaintiff's mother expired on 3-2-1987, her one-half share in the suit house devolved upon the plaintiff he being her legal heir. Thus, the plaintiff is the sole and absolute owner and in exclusive possession of the suit house. That the defendant has no right, title and interest of any nature whatsoever, in any manner whatsoever in and over the suit house. It will not be out of place to mention here that in the said partition effected in the year 1969 various properties including the plots at Badnera Road, Amravati were put to the share of plaintiff's son Santosh".

(quoted from page 18 of the Misc. Civil Application Paper-book).

On these averments, the plaintiff claims to be the absolute owner of the suit house.

7. The plaintiff has then averred as to the petitioner in para 5(g) as follows :

5(g) ................................................

"It will not be out of place to mention here that during the pendency of the above said petition No.A415/2003, a provisional settlement was arrived at between the defendant and Santosh on 30-12-2003 before the Marriage Conciliator under which the defendant agreed to stay with her husband Santosh from 8-1-2004 on trial basis. That from 8-1-2004 onwards, the defendant started living with her husband Santosh on trial basis and both of them used to appear before the Family Court at Nagpur on various dates. ...."

(quoted from page 21 of the Misc. Civil Application Paper-book).

8. The plaintiff claims as to his son's separate residence in house owned by him in para 5(g) as follows :

".....In these circumstances, the plaintiff has told his son Santosh to live separately and from last two months, the husband of the defendant Santosh is residing separately in his own residential house at Badnera Road bearing Municipal House No.120 in Ward No.48 which he has purchased under sale deed in the year 1995. It is submitted that the son of the plaintiff Santosh is B. E. (Electronics) and is also doing his business of Computer programming in the said premises being a software Developer. It seems that the defendant is not willing to live in the said house at Badnera Road because of her violent mental condition and as the comforts available in the suit house are not available in the suit house are not available there."

(quoted from page 23 of the Misc. Civil Application Paper-book).

9. On these averments, the plaintiff claimed perpetual injunction restraining the defendants from entering the suit premises.

10. The petitioner claims in para 4 of Misc. Civil Application in relation to the respondent's suit house as follows :-

"4. At the time of counseling before the conselor time to time father of Santosh i.e. respondent raised issue of showing petitioner to the psychiatrist though she is normal on this point counselor told them that she is absolutely normal and no need for treatment of psychiatrist. This was agreed by the respondent his son. The petitioner submits that thereafter she started residing along with her husband in the matrimonial home at Amravati till 11-11-2007. Petitioner submits that the house mentioned in the suit having Municipal House No.55. Ward No.41 situated at Khadkari Pura, Amravati is matrimonial home of the petitioner and she resided in said house along with her husband since marriage. The petitioner submits that from 2003 to 2007 ignoring some minor disputes, she lived along with her husband in the matrimonial home at Amravati. ...."

(quoted from pages 2 and 3 of the Misc. Civil Application Paper-book).

11. She further claims in the Misc. Civil Application as to the status of the plaintiff as follows :-

"7) The petitioner submits that respondent is a leading lawyer at Amravati. Further all senior lawyers are his friends and when she contacted some lawyers to take her brief they have shown their inability for accepting the case of petitioner. Petitioner further submits that it is difficult for her to give the brief to the lawyer at Amravati. She further submits that it is not possible for her to engage a lawyer from Nagpur for conducting the case at Amravati as she is not financially stable".

(quoted from page 5 of the Misc. Civil Application Paper-book).

12. As regards the conduct of respondent which petitioner has not denoted as malafide, but what she describes is by averring in her application as follows :-

"8) The petitioner submits that the game which was played by respondent without involving the petitioner's husband is totally not proper. She further submits that the whole dispute mentioned in the suit is arising out of the matrimonial problem and it is of matrimonial dispute which requires conciliation and such conciliation is available in Nagpur Family Court as councilor of Nagpur Family Court is aware about the case of petitioner. ..."

(quoted from page 5 of the Misc. Civil Application Paper-book).

13. In these premises, she claims that the petition be transferred to the Family Court at Nagpur.

14. The petition is opposed by filing the reply. The foundation of the reply is that:-

(a) The suit is a simple suit of Civil nature.

(b) The suit does not involve any claim or relief touching or have any semblance of matrimonial dispute.

(c) The suit does not fall within the definition of the term 'matrimonial cause' and hence, the transfer petition is not maintainable.

(d) The jurisdiction of the Family Court does not reach the adjudication sought by the petitioner.

15. The respondent has filed civil application and prayed for permission to place on record various title documents in order to demonstrate that the petitioner's husband son of the respondent Namely Santosh has separate properties.

16. The respondent has with all these contentions claimed that the petition for transfer of civil suit to Family Court be dismissed.

17. Respective parties have placed reliance on following judgments.

Petitioner :

(a) Mr. Shakuntala Modi Vs. Om Prakash Bharuka, AIR 1991 SC 1104.

(b) Krishnan Nambudiri Vs. Thankamani (II(1994) Divorce & Matrimonial Cases 223),

(c) Raichal John Vs. Francis Minan (II (1995) Divorce & Matrimonial Cases 225),

(d) Shyni Vs. George & ors. (II(1997) Divorce & Matrimonial Cases 676), and

(e) Sangeeta B. Kadam Vs. Balkrishna Ramchandra Kadam (I (2006) Divorce & Matrimonial Cases 296 (DB)).

Respondent :

(a) Smt. Vasumathi Vs. Chandriyani Madhavi & ors. (AIR 1991 Karnataka 201),

(b) P. Srihari Vs. Kum. P. Sukunda & another (AIR 2001 Andhra Pradesh 169),

(c) K. A. Abdul Jaleel Vs. T. A. Shahida (AIR 2003 SC 2525 : [2003(3) ALL MR 754 (S.C.)]),

(d) Arunkumar & another Vs. Shrinivas & ors. (AIR 2003 SC 2528),

(e) Devki Antharjanam Vs. Narayanan Namboodiri & another (AIR 2007 Kerala 38),

(f) Sarojini Prabhu & ors. Vs. Pappikutty Adiesiar & ors. (AIR 2007 Kerala 44),

(g) S. R. Batra & another Vs. Taruna Batra (Smt.) ((2007)3 SCC 169 : [2007 ALL MR (Cri) 3589 (S.C.) : 2007 ALL SCR 908]),

18. This Court has read all the precedents cited at bar. It is not necessary to discuss all citations for reasons expressed hereinafter.

19. This Court has given peaceful and anxious consideration to the questions involved. The question revolves around clauses (c) and (d) of explanation to Section 7 of Family Courts Act 1984.

20. Clause (c) and (d) of explanation to Section 7 of said Act read as follows:

(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.

21. 'Party to marriage' as implied by clause (c) quoted above means either spouse, and not their in-laws.

22. Injunction referred to in clause (d) refers to one which arises out of "circumstances arising out of a matrimonial relationship".

23. The term matrimonial relationship can be construed by applying narrower as well broader construction.

24. Broader construction :

Marriage is not just a contract. It is a social tie arrived at according to religious faith and religious traditions, custom and social sanction existing between social (sic) of parties to marriage. It is a socio religious institution and all family members are involved in it. Any relationship encompassing all them will fall within purview of term matrimonial relationship.

25. Narrower Construction :

Though marriage is a socio religious institution and tie between nearest kins of those related by blood to the spouses, yet the matrimonial 'relationship' would be limited to those ingredients of matrimony which constitutes the ingredients thereof. These ingredients will have to be found in the grounds which renders their relationship separable or liable to be dissolved or rights enforceable in law; and more particularly relatable to clauses (a), (b), (c) (f) & (g) of explaination to Section 7 of Family Courts Act 1984. These clauses are illustrative as well as restrictive. Clause (c) and (d) of explaination will have to be read by applying the rule of 'ejusdem generis" and not to include "one and all related". Section 7 of Family Courts Act cannot be read on par with Section 9 of the Civil Procedure Code. Jurisdiction of Family Court will therefore, be one assorted for it, and not every thing under Sun which is triable by Civil Court or District Court even remotely related to matrimony.

26. The construction of restrictive nature as discussed in para 25 above seems to be imperative in view of spectrum of interpretation as laid down in case of S. R. Balra Vs. Taruna Batra [2007 ALL MR (Cri) 3589 (S.C.) : 2007 ALL SCR 908] supra in which case Hon'ble Supra in which case Hon'ble Supreme Court has devised a "scope" of construction for all Courts in India.

27. The Family Courts Act which is a special legislation and creates a forum and mechanism for beneficial and effective enforcement of existing rights. This statute cannot be construed to enlarge the scope of statute so as in such a manner that it shall enlarge the scope and jurisdiction of forum constituted under it to bring within its jurisdiction what was not intended and expressed so.

28. Petitioner's remedies based on the grounds of the plaintiff being influential lawyer and an indirect act of her husband to expel or drive her away from house under procedural and general law shall remain unaffected.

29. In the result, petitioner may succeed in yielding sympathy, but does not succeed in fetching an order in her favour. The Petitioner's prayer for transfer of respondent's suit to family Court, Nagpur does not find support and strength from Family Courts Act, 1984.

30. Rule discharged. Parties shall bear own costs.

Petition dismissed.