Amina Bharatram v. Sumant Bharatram & Ors.

2. The Bill, inter alia, seeks to:- (a) provide for establishment of Family Courts by the State Governments: (b) make it obligatory on the State Governments to set up a Family Court in every city or town with a population exceeding one million;

(c) enable the State Governments to set up such courts in areas other than those specified in (b) above;

(d) exclusively provide within the jurisdiction of the

(i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of marriage or as to the matrimonial status of any person.

(ii) the property of the spouses or of either of them;

(iii) declaration as to the legitimacy of any person;

(iv) guardianship of a person or the custody of any minor;

(v) maintenance, including proceedings under

Chapter IX of the Code of Criminal Procedure; (e) make it obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal and rigid rules of procedure shall not apply; (f) provide for the association of social welfare agencies, counsellors, etc., during conciliations stage and also to secure the service of medical and welfare experts; (g) provide that the parties to a dispute before a Family Court shall not be entitled, as of right, to be represented by legal practitioner. However, the Court may, in the interests of justice, seek assistance of a legal expert as amicus curiae; (h) simplify the rules of evidence and procedure so as to enable a Family Court to deal effectively with a dispute;

(i) provide for only one right of appeal which shall lie to the High Court.”

10. The Government of National Capital Territory of Delhi (Department of Law, Justice and Legislative Affairs) has also issued the Notification in exercise of powers conferred by Section 4 of the FC Act, and all other powers enabling him in this regard, the Lieutenant Governor of the NCT of Delhi has appointed the Judicial Officers for the post of Judges of Family Courts at District Court, Saket, Delhi, from the date they assume charge of their offices.

11. One set of decisions passed in various Courts is that the expression “District Court” will include the High Court having original jurisdiction. See –

(i) Bakhshi Lochan Singh and others vs. Jathedar

Santokh Singh and others, ILR (1971) I Delhi 615 (DB), in which it was held as under:- “It was held by the Division Bench that after the coming into force of the Delhi High Court Act, 1966, as amended, this Court (Delhi High Court) has become the principal Civil Court of original jurisdiction with respect to every suit the value of which exceeds fifty thousand rupees. In view of the non obstante clause contained in sub-section (2) of Section 5 of the Delhi High Court Act, 1966, the Court of the District Judge, Delhi, has ceased to remain the principal Civil Court of original jurisdiction with respect to any suit value of which exceeds fifty thousand rupees. Full effect has to be given to the language employed in sub-section (2) of Section 5 "notwithstanding anything contained in any law for the time being in force" and that can be done only by saving that for purposes of Section 92 of the Code of Civil Procedure, the Court of the District Judge, Delhi, will be the principal Civil Court of original jurisdiction in every suit the value of which does not exceed fifty thousand rupees but in other suits the value of which exceeds fifty thousand rupees, this High Court will be the principal Civil Court of original jurisdiction.”

(ii) Raja Soad Factory and others vs. S.P. Shantharaj and others, AIR 1965 Supreme Court 1449, in which it was held as under:- “...The expression "District Court" has by virtue of

1908. Section 2(4) of the Code defines a "district" as meaning the local limits of the jurisdiction of a principal civil court – called the District Court – and includes the local limits of the ordinary original civil jurisdiction of a High Court. If, therefore, a High Court is possessed of ordinary original civil jurisdiction, it would, when exercising that jurisdiction be included, for the purpose of Act 43 of 1958, in the expression "District Court".”

12. In the case of Romila Jaidev Shroff vs. Jaidev Rajnikant Shroff, AIR 2000 Bombay 356, it was 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. Similarly, in the case of Kamal V. M. Allaudin and etc. etc. vs. Raja Shaikh and etc. etc., AIR 1990 Bombay 299, in which it was observed that Sections 7 and 8 of the Act speak of a 'District Court', when it exercises matrimonial jurisdiction, it covers by the definition of a 'District Court' contained in Section 2(4) of the Code of Civil Procedure.

13. Similar view has been taken in the following decisions. The relevant paras of the said judgments are as under:-

(i) Kamal V. M. Allaudin and etc. etc. vs. Raja Shaikh and etc. etc., AIR 1990 Bombay 299, paras 64, 65 & 68 read as under:-

(ii) S. Leelavathi & Anr. Vs. M.S. Shivashankar (deceased by L.Rs.) & Ors., para 10 reads as under:-

14. Learned counsel for defendant No.1, apart from other judgments, has referred a decision of the Full Bench of Bombay High Court, in the case of Romila Jaidev Shroff vs. Jaidev Rajnikant Shroff, reported in AIR 2000 Bombay 356, where the Full Bench of the Bombay High Court while dealing with Section 8 of the Family Courts Act and interpreting Section 2(4) CPC, has held as under:- “24. With utmost respect of the learned Judges of the Full Bench of Madras High Court, if one turns to the provisions of the Family Courts Act and anomalous position, that will arise under the provisions of Family Courts Act, as submitted by the defendant, it will not be possible to hold that in spite of the said provisions of the Family Courts Act, the High Court retains its Ordinary Original Civil Jurisdiction.

25. Sections 7 and 8 are prescribed by section 6 providing for counsellors, officers and other employees of Family Courts. It is followed by the provisions of duty cast of Family Court to make efforts for settlement as well as for providing enough latitude to the Family Court to devise its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other, subject to this rider, the provisions of the Code of Civil Procedure and the Code of Criminal Procedure both, including Rules framed thereunder are made applicable to the Family Court. Section 13 provides for right to legal representation; section 14 provides for application of Indian Evidence Act, 1872 which has virtually been done away with; under section 15, an option is left to the Family Court to record oral evidence or not; and section 16 provides for Evidence of formal character on affidavit. In this background, if one turns to section 5 subject to the rules framed thereunder, the Family Court is free to take assistance of and allow the association of institutions or organization engaged in social welfare or the persons professionally engaged in promoting the welfare of the family and so on.

26. In this background, one has to turn to the provisions of section 20 where the Act shall have overriding effect, which reads as under:

27. Letters Patent would be included in expression any law for the time being in force, and would certainly be covered the expression "instrument". The overriding effect given to the Act is thus confined not only to the Code of Civil Procedure but also to the Evidence Act. The Evidence Act is also an instrument having effect by virtue of law. Looking to the provision of the restricted right of an Advocate to appear in a matter obviously, the Advocates Act of 1961 also has effect to that extent.

28. Virtually, the litigation before the Family Court is a mixture of inquisitorial trial, participatory form of grievance redressal and adversorial trial. As the Family Court is left to devise its own practice, it can have a judicious mixture of all three of them and can as well proceed under any of- them exclusively.

29. The anomaly would thus be obvious. The Ordinary Original Civil Jurisdiction is held to be retained as per the learned Judges of the Division Bench and the learned Judges of the Pull Bench of the Madras High Court. The procedure will be in accordance with the respective rules of the High Court on its Original Side when legal representation being a certainty with all trappings of a full-fledged trial and the Evidence Act, 1872 will apply with force and rigour.

30. The litigants deciding to litigate within the limits of the City of Mumbai will thus continue to operate under the existing system. The litigants other than that litigating with new system will have the benefit of the aforesaid Family Courts Act which with reference to the aforesaid changes brought about in the conduct of the matters before the Family Court is clearly radical departure from the accepted form of a trial of a Civil Court. If the Legislature in its wisdom has decided to make this departure while interpreting any provision of it, in our opinion, the interpretation should be in furtherance of the objective.”

15. Learned Full Bench of Bombay High Court in the case of Romila Jaidev Shroff (supra) also interpreted that, “.....In our opinion, the conclusion would be inescapable 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. It would, therefore, lose its jurisdiction.”

16. Learned counsel for the plaintiff Ms.Malavika Rajkotia, Advocate, in her submissions, has raised various legal points in support of her arguments which are outlined as under:- (a) She states that there are differences between the Delhi High Court and other Presidency High Courts. The latter are the principal Civil Courts of the original side for their territory, though the Delhi High Court is for the State of Delhi and has below it District Courts as the principal Court of the original jurisdiction. There is no separate territory governed by the Delhi High Court as a Court of principal of original jurisdiction. The Delhi High Court constituted by the Delhi High Court Act, 1966 which succeeded the Punjab Courts Act, 1918 who succeeded the Letters Patent Lahore. (b) Even Section 3(17) of the General Clauses Act defines the “District Court”. The High Court is excluded from the definition of a District Court, but in contrast, Section 2(4) CPC limits the definition to a “District” and then includes the High Court in exercise of its original jurisdiction as the principal Court in a District. The said expressions are used in relation to different context and it implies a limit to territorial jurisdiction.

(c) Counsel has referred few decisions in which it was clarified that the High Court cannot be called as District Court. In the context of executing the money decree of `20 lac to mean only the “District Court” which is subordinate to the High Court when, in fact, the District Court has no jurisdiction whatsoever if such a suit is to be presented in the District Court. In Delhi, above `20 lac, it is the High Court which has jurisdiction in its capacity as the High Court. The Delhi High Court Act Section 4 and also under Section 6 CPC bars matters in other Court from entertaining the matter if it is outrightly above the pecuniary limits.

(d) It is also argued that Section 21 of the FC Act makes a specific reference to the High Court with no qualification as to its meaning anything other than the High Court. Thus, Section 8 of the Act excludes jurisdiction only of the Civil Court limit to the District Court within city civil limits of the High Court. She argued that there is no notification or amendment to the High Court Act and Rules that release the Family Court from its pecuniary jurisdiction limit. Thus, the suit cannot be entertained by the Family Courts where the pecuniary jurisdiction limit is more than `20 lac. She states that since the pecuniary jurisdiction limit of the present case is more than `20 lac, therefore, this Court has got the jurisdiction to entertain and try the present suit which is the civil suit and all the suits of civil nature except the same are expressly or implicitly barred. (e) Lastly, she has argued that even otherwise, the present suit is not entertainable in the Family Courts by virtue of the fact that the subject matter is the assets of Bharatram family held as a joint family (HUF) where besides the husband of the plaintiff, her father-in-law and brother-in-law continued to be the parties to the suit after the demise of her mother-inlaw. Since the claim of the third party is involved, therefore, the said dispute cannot be adjudicated by the Family Court. As the question involved in the present case raises a question of scope of Section 18, which is a question of law that needs to be addressed by the High Court.

17. It is pertinent to mention that exactly, the contrary view is taken on the similar issue by the various Courts including this Court and Full Bench of Madras High Court. The Full Bench of Madras High Court has taken the view at earlier point of time which is contrary to the view taken by Full Bench of Bombay High Court at the later stage who did not agree the view of Madras High Court. The relevant paras of the said decisions are mentioned and read as under:-

(i) Mary Thomas vs. Dr.K.E.Thomas, AIR 1990 Madras

100, in which it was held as under:-

(ii) Kanak Vinod Mehta vs. Vinod Dulerai Mehta, AIR 1991

Bombay 337 (by Division Bench comprising S.P. Bharucha and B.N.Srikrishna, JJ), in which it was held as under:-

(iii) N. Kanageswary vs. T. Shrikandarah Rubindranathan,

2013 (1) CTC 165, in which it was held as under:-

(iv) This Court in the case of Manita Khurana vs. Indra

Khurana reported in 2010 (167) DLT 58 while dealing with section 7 of the Family Courts Act, in paras 12 to 17 has held that the right of a party in the proceeding before the Family Courts are materially different from it, such proceedings had been before the ordinary civil court so as the approach of a civil court. The claim of a third party to a marriage cannot be adjudicated before the Family Court. The cause of action for the suit is refusal of the defendant to vacate the house of which the plaintiff claims to be the exclusive owner. Merely because certain facts leading to the cause of action referred to the marital relationship of the plaintiff and defendant would not make suit arising out of a marital relation. Paras 18 and 19 of the said decision referred the various decisions of Supreme Court which are reproduced hereunder:

18. In para 24 of the decision of Romila Jaidev Shroff (supra), the learned Full Bench of Bombay High Court did not agree with the Full Bench of Madras High Court and took the entirely different view that inspite of provisions, i.e. 7 and 8 of the Family Courts Act, the High Court retains its Ordinary Original Civil Jurisdiction and the anomaly would thus be obvious and procedure will be in accordance with the respective rules of the High Court of its original side. When legal representation being a certain will all trapping of a full-fledged trial and the Evidence Act, 1872 will apply with force and rigour and on the other hand, virtually the litigation before the Family Court is mixture of inquisitorial trial, participatory form of grievance redressal and adversorial trial and Family Court is left to devise its own practice.

19. There is no doubt that under section 7, the Family Court shall have all the jurisdiction exercisable by any District Court or by any subordinate Civil Court under the law for the time being in force in respect of suit and proceedings for maintenance. The Family Court shall also have jurisdiction of the matter relating to maintenance including proceedings under Chapter IX of the Code of Criminal Procedure including the application filed under Section 125 Cr.P.C.

20. The relevant principles regarding ouster of jurisdiction of Civil Court were laid down by the Apex Court in Dhulabhai vs. State of MP, AIR 1969 Supreme Court 78 at page 89 (para 32) which reads as under: “(1) Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of juridical procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunal so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statue or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constitutes under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.”

21. It is also necessary to appreciate Section 9 of the CPC which provides when the jurisdiction of the civil court is either expressly or impliedly barred, it reads as under: “9. Courts to try all civil suits unless barred – The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. [Explanation I] – A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. [Explanation II]- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]”

22. It is well-settled that the exclusion of jurisdiction of civil court cannot be readily inferred and the normal rule is that civil courts have jurisdiction to try all suits of a civil nature except those of which cognizance by them is either expressly or impliedly excluded. It is true that ordinarily, the Civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated.

23. There is no express exclusion of jurisdiction under the Family Court Act that no High Court referred to in sub-section 7 shall exercise any jurisdiction in respect of any suit and proceeding of nature referred to in the explanation of that sub-section. It appears to me, that the decision rendered by the courts from time to time on the basis of either with a view to promote conciliation and to secure settlement of dispute regarding marriage and family affairs and for matters connected therewith as the Act inter alia seems to exclusively provide with the jurisdiction of the Family Court or perusal of section 20 of the Family Court which mandates that the Act shall have overriding effect on all other enactments in force dealing with this issue meaning thereby that the jurisdiction of the High Court in such matters is implicitly barred.

24. Implied exclusion of jurisdiction of civil court cannot be inferred from the mere fact of the existence of the statutory tribunal or court which may give the same relief as may be had in civil court. There must be something in the provisions of the statute for providing such proceedings to clearly rule out remedy of a suit in the civil court where a statutory enactment creates rights but does not provide the remedial form, the doors of the civil court are always open however where a complete machinery for redressal is available, civil courts’ jurisdiction may be impliedly barred.

25. Having gone through all the decisions and important issues involved in the present matter, though my views are same with the views taken by the Division Bench of Bombay High Court in the case of Kanak Vinod Mehta (supra) and in the case of Manita Khurana (supra) of this Court, due to undisputed fact in the present case that the plaintiff is claiming rights in the assets of Bharatram family held as joint family (HUF) and it was claimed that besides the husband of the plaintiff, her father-in-law and brother-in-law continued to be the parties after the demise of her mother-in-law. In a way third parties interest is also involved where evidence of the parties are necessary. Even otherwise, I feel that under Section 7 of the Family Courts Act, use the words ‘only to the jurisdiction of District Courts and subordinate Civil Courts’, the said expressions are used there in different contexts otherwise it amounts to ignoring Section 3 of the CPC which makes it clear “for the purpose of this Code, the District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every Court of small causes or subordinate to the High Court and District Court’. Anyhow, these are my views in the matter.

26. Although I have expressed my views in the matter as well as the analysis done above supports the same, yet as a matter of judicial proprietary and in view of judicially inconsistent opinion existing in the field of law, I deem it expedient to refer the important questions to the larger Bench of this Court. These questions are required to be answered authoritatively by a larger Bench so that authoritative judgment may be rendered by the Court discussing the legal position so that the inconsistent trend of approvals and dissents can be put to quietus and there must be certainty in the field of law.

27. Thus, this Court deems it appropriate to refer the following questions to the larger Bench for their kind consideration, as finding of which, would help many Courts to decide various pending cases and many more to come in future of this nature.

28. Accordingly, the following questions are referred to the larger Bench which are:

(i) Whether the High Court while exercising the

Original Civil Jurisdiction is deemed to be a District Court within the meaning of Section 2(4) of CPC in the context of Section 7(1)(a) of the Family Courts Act, 1984?

(ii) Whether the original civil jurisdiction of the High

29. This matter be placed before Hon’ble the Chief Justice, on 30th July, 2014 for further directions.

JUDGE JUNE 09, 2014