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Sarangapani, Kanagaraj And … vs Vasantha And Velumani (Minor) … on 9 October, 2002

Madras High Court
Sarangapani, Kanagaraj And … vs Vasantha And Velumani (Minor) … on 9 October, 2002
Author: K Gnanaprakasam
Bench: K Gnanaprakasam


ORDER

K. Gnanaprakasam, J.

1. The respondents in I.A. No. 6/2000 in O.S. No. 4 of 1997 before the Judge of the Family Court, Pondicherry, are the revision petitioners herein. The respondents herein have filed an application under Order VI Rule 17 C.P.C. to amend the plaint and the same was allowed by the Family Court in I.A. No. 6 of 2000 by order dated 23.11.2000 and the same is challenged in this Civil Revision Petition.

2. This Civil Revision Petition is filed under Article 227 of the Constitution of India contending that the jurisdiction of the Family Court is limited in the sense that the relief sought for in a suit or proceeding must be “between the parties to a marriage” but whereas the concern proceedings in this case is not between the parties to a marriage and therefore the Family court has no jurisdiction.

3. The respondents have filed the suit as indigent person and subsequently it was registered as O.S.No.4/97 in which they have filed an application for amendment. The original prayer in the petition was (a) to declare the petitioners as indigent persons (b) pass an order of mandatory injunction directing the respondent to return her “B” schedule property; (c) direct payment of a sum of Rs.500/- per month to each of the petitioner from the date of the petition from the first respondent; (d) direct payment of a sum of Rs. 3,000/- towards arrears of maintenance from first respondent from April 1996 to June 1996. (e) pass an order of injunction restraining the respondents, their men, or agents from encumbering the “C” schedule property.

4. The defendants have denied the marital status of the first respondent with late Irisappan @ Kasinathan and the status of the second respondent as his son which necessitated the respondents to file an application for amendment seeking for declaration that the plaintiffs are the wife and son of the deceased Irisappan @ Kasinathan.

5. The revision petitioners contested the said petition by stating that the suit itself is not maintainable before the Family Court as the dispute is not between two spouses and the same is against the third parties. It is also stated that the amendment sought for would change the entire character of the suit and the nature of the claim is not consistent with the earlier claim made in the plaint.

6. The trial Court had observed that, the issues regarding the legal status of the first respondent that she is not the legally wedded wife and the legal status of the second respondent that he is not the legitimate son of the deceased Irisappan @ Kasihathan, are necessary issues to be decided before the adjudication of the suit and allowed the petition and the same is challenged herein.

7. Learned counsel for the revision petitioners submit that the proceedings are not between the parties to a marriage and therefore the Family court has no jurisdiction to try the case of this nature. The main contention of the revision petitioner is that the first respondent’s husband namely Irisappan @ Kasinathan is not a party to the suit and in the absence of the same, the proceedings is not maintainable before the Family Court.

8. On the contrary learned counsel for the respondents would contend that the first respondent’s husband died and therefore the question of impleading the other spouse viz. the husband of the first respondent is out of question, but however the parties to the proceeding are related to the parties to the marriage, out of whom one party alone is alive, who is the first respondent herein. The suit is one for return of the properties and for claiming maintenance and also for other reliefs. The status of the respondents was questioned by the defendants in the suit. The amendment sought for by the plaintiffs, have become necessary. Whether the first respondent is the legally wedded wife and the second respondent is the legally born son, are the issues to be determined at the time of adjudication of the suit itself.

9. Now the question is as to whether the Family Court has got jurisdiction to entertain the suit of this nature has got to be considered. Section 7 of the Family Court Act 1984 deals with the jurisdiction:

“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

(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 proceedings 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.

Explanation (b) is in respect of a suit or proceedings for a declaration as to the validity of the marriage or as to the marital status of any person. Explanation (c) is in respect of suit or proceedings for a declaration as to the legitimacy of any person.

10. A reading of Section 7 on the whole would make it clear that a suit or proceedings should be between the parties to a marriage.

11. It is the contention of the learned counsel for the revision petitioner that one of the spouses is absent to the proceedings as he is dead and therefore the respondents cannot maintain such an action before the Family Court. If at all they want to make any such claim, it is open to them to make such a declaration before the appropriate Civil Court and not before the Family Court. Learned counsel for the petitioner reiterates that a suit or proceedings must be “between the parties to a marriage” and here one of the spouse name does not find place and hence the proceedings initiated by the respondent is not maintainable.

12. Mr. Rajaraman, learned counsel for the petitioner has also pointed out that the opening line in explanation (a) i.e., “a suit or proceeding between the parties to a marriage” must be read with in the beginning of all other explanations (b) to (g) then only the proper purpose and object of the Act could be achieved, that is, in the absence of the husband, the other spouse namely the wife or vice versa cannot maintain the suit before the Family Court.

13. Mr. Rajaraman, learned counsel for the petitioners relied upon the Judgment reported in A.I.R. 2001 Andra Pradesh P-169 (P. Srihari, Petitioner V. Kum. P. Sukunda and another. Respondents). That is a case where a suit was filed by the sisters against the brothers and others claiming partition of the property left behind by the father. The petition was filed under Order VII Rule 10-A read with Section 151 C.P.C. by the petitioner in the Family Court for return of their plaint for presentation in the proper Court but the same was dismissed and the said order was challenged by way of Revision. In the said circumstances, the Division Bench of Andra Pradesh Court had observed that a reading of Section 7 “as a whole cannot leave any manner of doubt whatsoever that essentially the parties to be husband and wife and may also include children. But, if one of the spouses is absent in the litigation, then it can never be considered as a cause falling within the realm of the Family Court. The Act being exclusionary in nature and has been enacted for the purpose of resolution of disputes of a particular nature and enumerated in the Explanation, it is not for this Court to enlarge the same because of the plain language employed therein”.

14. The present case entirely stands in a different footing. One of the spouses namely husband already died in this case. Originally the relief sought for is maintenance by the daughter-in-law against the father-in-law. The amendment sought for is a declaration that the plaintiffs are the wife and son of the deceased Irisappan @ Kasinathan and as such the declaration is permissible under Explanations (b) and (e) of Section 7 and the relief sought for by the plaintiffs fall under the above said category. As such I have no hesitation to hold that the Family Court has got jurisdiction to try such a suit and it cannot be said that the said suit is out of jurisdiction of the Family Court. The contention of the Revision Petitioner lacks necessary logic.

15. In the said view of the matter, I do not find any error apparent in the order passed by the Family Court which warrants interference by this Court.

16. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, C.M.P. Nos. 6010 and 15213 of 2001 are closed.

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