IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.10020 of 2011
Tilsunra Devi
Versus
Laxmina Devi & Ors
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06. 21.10.2011 Heard the learned counsel, Mr. Abhimanyu
Sharma on behalf of the petitioner and the learned
counsel, Mr. Binit Kumar on behalf of the respondents.
(2) This application under Article 227 of the
Constitution of India has been filed by the petitioner for
setting aside the order dated 18.04.2011 passed in title
suit no.181 of 2005 and Matrimonial Case No.37 of 2010
by Principal Judge, Family Court, Buxar whereby the
learned Court below held that he has the jurisdiction to
entertain the suits and thereby rejected the application
dated 06.10.2010 under Section 9 of the C.P.C. and also
held that the matrimonial suit is not barred under Section
11 C.P.C. and rejected the application dated 23.01.2010.
(3) The short facts may be stated herein that
the plaintiff-respondent no.1 filed the title suit no.181 of
2005 for declaration that she is legally wedded wife of late
Kashinath Prasad and that respondent nos.2 and 3 are the
sons born out of the wed lock. In the said suit, it was also
prayed for declaration that the gift deed dated 29.12.2000
executed in favour of the petitioner by said late Kashinath
Prasad is illegal, void and inoperative and not binding on
the plaintiff. The said suit was pending before the
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Subordinate Judge. On establishment of Family Court in
the District of Buxar, the Subordinate Judge by terms of
order dated 05.08.2009 transferred the case to the Family
Court for decision.
(4) The present petitioner appeared and filed
an application under Section 9 of the C.P.C. alleging that
the Family Court has no jurisdiction to decide the case as
the relief claimed in the suit is for declaration of the gift
deed executed by Kashinath in favour of the petitioner.
Another application was also filed by the petitioner to the
effect that in 125 Cr.P.C. proceeding being case no.38(M)
of 2002, the S.D.J.M., Buxar has held that the plaintiff is
not wedded wife of late Kashinath Prasad. Therefore, the
finding will operate as res-judicata and accordingly, prayed
for disposal of the suit under Section 11 of the C.P.C. By
the impugned order, both the applications have been
rejected.
(5) The learned counsel for the petitioner
submitted that since prayer has been made for declaration
of the gift deed as null and void, the Family Court has no
jurisdiction and likewise, because there has already been
finding in 125 Cr.P.C. proceeding that the plaintiff is not
legally married wife, the same will operate as res-judicata.
In such view of the matter, the learned Court below could
not have rejected the application. Therefore, the impugned
order is liable to be set aside.
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(6) On the contrary, according to the learned
counsel for the respondents, there is no illegality in the
impugned order. Under Section 7 of the Family Court Act,
1984, the Family Court is also a Civil Court and has the
jurisdiction to decide the matrimonial suit and according to
Order 2, the plaintiff is required to include the whole claim
and if plaintiff will omit to include the whole claim, the
plaintiff will not be entitled subsequently to sue for the
same. According to the learned counsel, the plaintiff filed
the suit for declaration that she is the legally wedded wife
of late Kashinath Prasad. So far Family Court is concerned,
the same has the jurisdiction to grant this relief and so far
the subsequent relief i.e. for declaration that the gift deed
is void is concerned, it is consequential, it depends upon
the former relief. Considering all aspects of the matter,
the learned Court below has passed the impugned order
and, therefore, there is no illegality in it.
(7) Section 7 of the Family Court Act, 1984 reads 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
proceeding of the nature referred to in the explanation;
and
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(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 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.
(2) Subject to the other provisions of this Act, a Family
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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
(b) such other jurisdiction as may be conferred on it by
any other enactment.”
(8) From the above provision of law it is
evident that a Family Court has been conferred with all the
jurisdiction exercisable by any District Court or any
Subordinate Civil Courts in respect of the suits and
proceedings of the nature specified in the explanation and
for the purpose of exercising such jurisdiction, the Family
Court is treated as District Court or Subordinate Civil
Courts.
(9) In view of Section 7(i) explanation (b), the
Family Court has the jurisdiction to decide a suit or
proceeding for a declaration as to the validity of a marriage
or as to the matrimonial status of any person. In the
present case, the suit has been filed for declaration that
the plaintiff is the legally wedded wife of late Kashinath
Prasad. Therefore, so far this declaration is concerned, the
Family Court has the jurisdiction to decide the same.
(10) Order 2 Rule 2 of the C.P.C. provides that
every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of
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action. Order 2 Rule 2 Sub Rule 2 provides that if the
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 and Sub Rule 3 provides that a person entitled
to more than one relief in respect of the same cause of
action may sue for all or any such relief.
(11) In the present case, as stated above, the
preliminary relief claimed by the plaintiff is for declaration
of her status. The second relief is for declaration regarding
gift deed executed by late Kashinath Prasad. Therefore,
this second relief has been claimed by the plaintiff in view
of Order 2 Rule 2 C.P.C. Had the plaintiff not claimed this
relief in the suit, the said relief could not have been
claimed by her subsequently being barred under Order 2
Rule 2 C.P.C. As has been quoted above, the Family Court
is treated as District Court or the Subordinate Courts for
deciding the Civil Suits. Now, therefore, the question will
be whether this second relief regarding gift deed is
concerned, if it is held that Family Court has no jurisdiction
to decide this question then in such circumstances, the
plaintiff will be compelled to file another suit before either
the Court of Munsif or the Court of Sub Judge as the case
may be, according to the valuation. In my opinion, this is
not the intention of legislature i.e. the plaintiff will file a
suit before one Court for one relief and another suit before
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another Court for another relief. Since the Family Court is
a Civil Court and according to Section 7, has the
jurisdiction to decide all suits and proceedings as
enumerated in the explanations, the same Court has the
jurisdiction to decide the consequential relief claimed in the
suit also. Here, if the former relief regarding declaration of
status will be dismissed, she will not be entitled to the
grant of second relief.
(12) Now let us consider that if it is held that
Family Court has no jurisdiction to declare the gift deed as
void or illegal, then the consequence will be that the
plaintiff will be compelled to file suit. The question will be
as to whether in the said suit, the Court will grant this
relief without deciding the status of the plaintiff as to
whether “she is legally wedded wife or not?” So far this
question regarding her status is concerned, the other Court
will have no jurisdiction and will have await the decision of
the Family Court and, therefore, the decision of the Family
Court regarding the declaration of status is prime
consideration. In my opinion, therefore, the Family Court
has the jurisdiction to decide the suit and the learned Court
below has rightly held so by the impugned order.
(13) So far the other ground that the finding
that the marriage is void as the first husband of plaintiff is
alive and that there is finding of S.D.J.M. in 125 Cr.P.C.
proceeding that she is not legally wedded wife is
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concerned, it appears that the scope of Section 125 Cr.P.C.
is different than the scope of regular suit regarding
declaration of status. Therefore, the finding recorded by
S.D.J.M. in 125 Cr.P.C. proceeding is a finding recorded by
a Criminal Court which will never operate as res-judicata in
the Civil proceeding before the Family Court. The learned
Court below has rightly therefore, held the same.
(14) In view of the above facts and
circumstances of the case, I find no reason to interfere
with the impugned order and accordingly, this writ
application is dismissed.
Saurabh ( Mungeshwar Sahoo, J.)