Geeta Anand v. Tanya Arjun & Anr.

Delhi High Court · 01 Jun 2023 · 2023:DHC:3916

Navin Chawla

CS(OS) 601/2022

2023:DHC:3916

civil other Significant

AI Summary

The Delhi High Court referred to a Larger Bench the question whether suits by third parties claiming exclusive property rights against in-laws fall within exclusive Family Court jurisdiction under Section 7(1)(d) of the Family Courts Act, 1984.

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CS(OS) 601/2022
HIGH COURT OF DELHI

Reserved on: 10.04.2023

Date of Decision: 01.06.2023

CS(OS) 601/2022 & I.As. 15957/2022, 20302/2022
GEETA ANAND ..... Plaintiff
Through: Ms.Malavika Rajkotia & Ms.Akriti Tyagi, Advs.

VERSUS

TANYA ARJUN & ANR. ..... Defendants
Through: Mr.Prosenjit Banerjee, Mr.Aaditya Vijay Kumar, Ms.Liza M. Baruah &
Mr.Akshit Mohan, Advs. for D- 1 with D-1 present in Court.

JUDGMENT

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

I.A. 606/2023

1. The present application has been filed by the defendant no.1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short ‘CPC’) seeking rejection of the plaint on the ground that the exclusive jurisdiction to adjudicate upon the dispute raised in the plaint lies with the Family Court in terms of Section 7(1) Explanation

(d) of the Family Courts Act, 1984 (hereinafter referred to as ‘Family

CASE OF THE PLAINTIFF

2. The present suit has been filed by the plaintiff, who is the mother-in-law of the defendant no.1 and the mother of the defendant no.2, praying for the following reliefs: “a. Pass a decree of Permanent Injunction in favour of the Plaintiff and against the Defendant No. l her relatives, agents, associates and/or employees thereby restraining them from visiting or entering the Suit Property at No. 26, Anand Lok, New Delhi-110049 and interfering in the peaceful life of the Plaintiff, b. Award the cost of the present suit in favor of the Plaintiffs and against the Defendants.”

3. It is the case of the plaintiff that she, along with her Company AG Industries Pvt. Ltd., acquired the Suit Property bearing no. 26, Anand Lok, New Delhi-110049 vide Sale Deeds dated 23.03.2007, 02.11.2004 and 02.11.2004. The defendant no.2 is the son of the plaintiff and was residing with her in the suit property.

4. The defendant no.1 and defendant no.2 entered into a wedlock on 10.12.2005, and have been blessed with two children.

5. The plaintiff avers that the defendant no.1 was aggressive and abusive towards her and, therefore, in May, 2019, the plaintiff asked the defendants to move out of the Suit Property, but allowed them to live at her residential apartment at A-109, 9th Floor, DLF King's Court, Greater Kailash Part II, New Delhi-110048.

6. The plaintiff further avers that in the last week of June, 2022, the defendants, through a family friend, reconciled their inter se dispute and entered into a Memorandum of Understanding dated 28.06.2022 (hereinafter referred to as the ‘MOU’). The plaintiff is also a signatory to the MOU. In terms of Clause 6 (b) of the MOU, it was agreed that the defendant no.1 shall move into the DLF property and remove her belongings and stop access to the suit property unless particularly invited by the plaintiff. Clause 6(c) of the MOU states that the plaintiff, in turn, would repay the loan taken on the DLF property and, thereafter, transfer the DLF property to the defendant no.1 and the children of the defendants.

7. The plaintiff asserts that while she performed her part of the obligations under the MOU, the defendant no.1 resiled out of the same, alleging that the MOU had been signed under duress. The plaintiff asserts that the defendant no.1 again started intimidating and harassing the plaintiff while whimsically barging into the suit property against the plaintiff’s wishes and threatening to squat there until her illegal demands are met.

8. The plaintiff bases her cause of action to file the suit as under:

“45. That the cause of action for filing the present suit arose on 28.06.2022 when Tanya signed the MoU and agreed to vacate the Suit Property within 7 days of the completion of the renovation work. It again arose on 29.08.2022 when Tanya failed to comply with the MoU and vacate the Suit Property. The cause of action again arose on 30.09.2022 when Tanya unilaterally reneged from the MoU. The cause of action is still continuing and subsisting as Tanya has been visiting the Suit Property against Ms. Anand's wishes and threatened to squat there until her illegal demands are met. Ms. Anand fears that Tanya, while in the house, may create more trouble and cause harm to Ms. Anand.”

SUBMISSION OF THE LEARNED COUNSEL FOR THE DEFENDANT NO.1

9. As noted hereinabove, the defendant no.1 has filed the present application stating that, as the suit seeks an injunction ‘in circumstances arising out of matrimonial relationship’, the exclusive jurisdiction to adjudicate the claim of the plaintiff is with a Family Court in terms of the Section 7 (1) Explanation (d) of the Family Courts Act.

10. In support of the above objection, the learned counsel for the defendant no.1 has placed reliance on the judgment of a learned Single Judge of this Court in Avneet Kaur v. Sadhu Singh & Anr., 2022/DHC/2453.

SUBMISSION OF THE LEARNED COUNSEL FOR THE PLAINTIFF

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11. On the other hand, the learned counsel for the plaintiff, placing reliance on the judgment of this Court in Manita Khurana v. Indra Khurana 2010 SCC OnLine Del 225; and Meena Kapoor v. Ayushi Rawal & Anr. 2020 SCC OnLine Del 2481, submits that this Court has held that a claim of a third party to a marriage, even if she be the mother of one of the spouses, cannot be adjudicated before the Family Court. She submits that where the claim is based on the exclusive ownership of the Suit Property, merely because certain facts leading to the cause of action refer to the marital relationship of the defendants, that would not make the suit filed by the mother-in-law as one seeking injunction ‘in circumstances arising out of a matrimonial relationship’ to be adjudicated only by a Family Court.

12. The learned counsel for the plaintiff, placing reliance on the judgment of the Supreme Court in Assa Singh (D) by LRs v. Shanti Parshad (D) by LRs & Ors. 2021 SCC OnLine SC 1064; and of this Court in Manpreet Kaur v. Harjyot Singh 2020 SCC OnLine Del 2487, submits that the ouster of the jurisdiction of a Civil Court is not to be readily inferred. Such ouster must be either explicit, express or clearly implied. She submits that in similar circumstances, not only various suits have been entertained by Civil Courts including this Court, but also decreed by the Civil Courts. She submits that this Court would not infer the ouster of the jurisdiction on account of the Family Courts Act.

13. As far as the judgment in Avneet Kaur (supra) is concerned, the learned counsel for the plaintiff submits that the same is not good law, as it does not refer to the prior judgment of this Court in Manita Khurana (supra). She submits that the same is also distinguishable on facts inasmuch as there was no agreement between the parties whereunder the wife/daughter-in-law was to leave the house of the mother-in-law. She submits that in the said case, the husband had also transferred the ownership of the suit property in favour of his mother when the litigation between the parties therein began and they were separated.

14. She submits that in the present case, the cause of action is based on the MOU, whereunder, the defendant no.1 had agreed to vacate the Suit Property and shift to the DLF property. It has no concern with the matrimonial relationship between the defendants.

SUBMISSION IN REJOINDER BY THE LEARNED COUNSEL FOR THE DEFENDANT NO.1

15. In rejoinder, the learned counsel for the defendant no.1, placing reliance on the judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr. (2005) 2 SCC 673, submits that in view of the apparent conflict between the judgments of this Court in Avneet Kaur (supra) on one hand and Manita Khurana (supra) and Meena Kapoor (supra) on the other, this Court should place the same before the Hon’ble Chief Justice to be placed for hearing before a Larger Bench.

16. Placing reliance on the judgment of the Supreme Court in S. Vanitha v. The Deputy Commissioner, Bengaluru Urban District and Ors. (2021) 15 SCC 730, the learned counsel for the defendant no. 1 submits that the suit property would be the shared household of the defendant no.1 and, therefore, reliance on the MOU by the plaintiff would not empower this Court with the appropriate jurisdiction.

17. Placing reliance on the judgment of the Supreme Court in K.A. Abdul Jaleel v. T.A. Shahida (2003) 4 SCC 166; and of this Court in Vidyanidhi Dalmia v. Nilanajana Dalmia 2008 SCC OnLine Del 371, he submits that the Family Courts Act being a Special Act created for reconciliation of the disputes of certain kinds, should be construed liberally and not in a restrictive sense, as is being contended by the learned counsel for the plaintiff.

18. The learned counsel for the defendant submits that the judgment of this Court in Manita Khurana (supra) is distinguishable as in the case the husband of the defendant therein was not a party to the suit and the learned Judge distinguished the cited judgment on that score. He submits that in the present suit, husband of the defendant no.1 has been impleadead as the defendant no.2 and, therefore, the judgment in Manita Khurana (supra) shall not be applicable.

ANALYSIS AND FINDING

19. I have considered the submissions made by the learned counsels for the parties.

20. In my view, there appears to be an apparent conflict between the interpretation placed on Explanation (d) to Section 7(1) of the Family Courts Act in Avneet Kaur (supra) on one hand, and Manita Khurana (supra) and Meena Kapoor (supra) on the other.

21. Section 7 of the Family Courts Act, 1984 reads 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 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 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 circumstance arising out of a marital relationship; (e) a suit or proceeding for a 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 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.” (Emphasis Supplied)

22. In Manita Khurana (supra) (authored by Rajiv Sahai Endlaw, J.), the learned Single Judge of this Court was considering a petition under Article 227 of the Constitution of India arising out of the dismissal of an application filed by the petitioner therein seeking transfer of the suit to the Family Court. The suit had been filed by the mother-in-law against her daughter-in-law seeking ejectment and recovery of mesne profits from the property of which she claimed exclusive ownership. The learned Single Judge, interpreting Explanation (d) of Section 7 (1) of Family Court Act, observed and held as under:

“16. The only clause of the Explanation to Section 7 of the Act which can be said to bring within its ambit a suit of the nature as in the present case, is Clause (d). 17. What is however significant in the present case is that the husband of the petitioner is not a party to the suit. The Kerala High Court has had occasion to consider whether a suit to which persons other than spouses are a party would continue to be governed by the Family Court Act or not. A Single Judge of the Kerala High Court in Shyni v. George, AIR 1997 Kerala 231, held that merely because a stranger to the marriage (in that case the father-in-law) is also impleaded in the suit along with the husband on the ground that the property of the wife or a portion of it also has been handed over to him would not take away the suit from the purview of the Family Court. It was further held that the jurisdiction of the Family Court is not confined to proceedings by one spouse against another and that so long as the suit is of one spouse against the other, the suit would be maintainable in the Family Court even if for the purpose of seeking relief in respect of the cause of action put forward in the suit, the suing spouse is forced to implead persons other than the other spouse or include the close relatives of the other spouse. It was further held that the cause of action if common could not be permitted to be split up by filing a suit against the husband in a Family Court and against the father-in-law in the Civil Court. However, in the same judgment, it was observed that a suit for partition in which a party to a marriage claims a share in the property not only along with her husband or as against her husband but also along with the various other members of the joint family would be totally different from a case where a wife

files a case for recovery of her exclusive property against her husband and someone else who is holding the property on her behalf like the father-in-law in that case. On the aforesaid reasoning,in Devaki Antharjanam v. Narayanan Namboodiri, AIR 2007 Kerala 38, another Bench of the Kerala High Court held that a suit for partition in which not only the husband and wife but their children were also parties did not fall within the exclusive jurisdiction of the Family Court and as such the decree in the suit passed by the Civil Court could not be held to be void. The reasoning was that the property belongs not only to the parties to the marriage but to others as well. It was further held that where other parties to the suit are merely a proforma party or a party with whom the money or the property of the parties to the marriage or either of them is entrusted or where the third party claims through either or both the parties to the marriage or a legal representative of a party to a marriage or a person in possession of property of the parties to the marriage, notwithstanding such third party being party to the suit, the exclusive jurisdiction to try the suit would still be of the Family Court; however where there is a sharer to the property other than the parties to the marriage, such a sharer could not be compelled to bring a suit for partition before the Family Court merely because the other sharers were married to each other. However, a Division Bench of the Kerala High Court in Joseph v. Mariutn Thomas, MANU/KE/0034/2006, held that the claim of a stranger over a property over which the wife had a charge for her maintenance was not required to be adjudicated in the Family Court. It was held that Section 7 excludes the jurisdiction of the civil Court only in certain matters which are relating to proceedings between parties to a marriage; however, the claim of a total stranger could not be covered by Section 7 of the Act.

18. A Single Judge of the Bombay High Court in Rakhi v. Jayendra, MANU/MH/0799/2008, has held that the Family Courts Act which is a special legislation and creates a forum and mechanism for beneficial and effective enforcement of existing rights cannot be construed to bring within its jurisdiction what was not intended and expressed so. In that case the suit filed by the father-in-law for an injunction restraining the daughter-in-law from entering the house which he claimed to be belonging to him absolutely was held not transferrable to the Family Court.

19. I respectfully agree with the Division Bench of the Kerala High Court and the view aforesaid of the Bombay High Court. The claim of a third party to a marriage even if she be the mother of one of the spouses cannot be adjudicated before the Family Court and to the prejudice, on the aspects noted hereinabove, as to procedure, appeal, limitation, of such third party. It may be noted that the respondent/plaintiff in the present case is claiming absolute title to the property not as the representative or trustee of the husband of the petitioner/defendant and/or through the husband of the petitioner/defendant but in her own capacity as the widow and nominee of her deceased husband. It is also significant that though the petitioner/defendant is admitted to have been inducted into the suit premises owing to the marriage with the son of the respondent/plaintiff but that is not the cause of action for the suit. The cause of action for the suit is the refusal of the petitioner/defendant to vacate the house of which the respondent/plaintiff claims to be the exclusive owner. Merely because certain facts leading to the cause of action referred to the marital relationship of the petitioner/defendant would not make the suit as one in circumstances arising out of a marital relationship. The language of Clause (d) of Section 7 is peculiar. The words “circumstances arising out of marital relationship” do not qualify the words “suit or proceeding” but qualify words “order or injunction”. Thus, the order of injunction sought from the Court has to be in circumstances arising out of marital relationship. The order sought in the present case of eviction of the petitioner/defendant and of recovery of mesne profits from the petitioner/defendant does not arise out of a marital relationship but arises out of exclusive ownership claimed by the respondent/plaintiff of the property and the occupation thereof by the petitioner/defendant without authority and/or after the authority has ceased. xxxxx

22. I do not find any ambiguity or absurdity in the view hereinabove taken. No case of nullifying the-object of the statute is also found to have been made out. The literal interpretation does not permit the Family Court to have exclusive jurisdiction over the subject matter of the suit in the present case.” (Emphasis supplied)

23. The judgment in Manita Khurana (supra) was relied upon and followed by another learned Single Judge of this Court (Mukta Gupta, J.) in Meena Kapoor (supra), wherein it was held as under:

“13. The facts of the present case are similar to the facts in Manita Khurana Vs. Indra Khurana (supra). In the present case, the plaintiff claims to be the exclusive owner of the suit property having purchased the same by way of a registered sale deed dated 29th August, 2014 and seeks the relief of injunction against the two defendants. Merely because the two defendants are married and the defendant No.1 has taken the plea that some money in the purchase of the suit property and the construction thereof was spent from the earnings of defendant No.2 which plea of

defendant No.1 would be hit by the Benami Transactions (Prohibition) Amendment Act, 2016, the relief in the present suit cannot be said to be between the parties to the marriage with respect to the property of the parties or either of them.. Consequently, the preliminary objection raised by the defendant No. 1 that the present suit is not maintainable and should be tried by Family Court is dismissed.”

24. A reading of the above judgments would show that both the judgments have held that where a suit seeking eviction/injunction is filed by the mother-in-law against her daughter-in-law based on her exclusive title to the property, the same cannot be said to be a suit ‘in circumstances arising out of marital relationship’ to be tried exclusively by a Family Court.

25. On the other hand, in Avneet Kaur (supra) (authored by C. Hari Shankar, J.), the learned Single Judge of this Court has interpreted Explanation (d) to Section 7(1) of the Family Courts Act, observing and holding as under:

“21. Unquestionably, the dispute in this case revolves around Clause (d) of explanation to Section 7 (1) of the Family Courts Act. A mere glance at the provision indicates that it has been worded in careful and cautious terms. It states that a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship would lie exclusively before the Family Court. 22. What has to be seen is whether the circumstances in which the order or injunction is sought in the present case arise out of a marital relationship. The test is not whether the cause of action, forming the basis of the prayer for injunction, arises out of a marital relationship or whether the marital

relationship is the reason for the grievance ventilated by the plaintiff. All that has to been seen are the circumstances in which the injunction is sought. Once the Court identifies the circumstances, if those circumstances arise out of a marital relationship, Clause (d) of the Explanation to Section 7 (1) of the Family Courts Act would ipso facto be attracted.

23. Explanation (d) in Section 7 (1) of the Family Courts Act does not, either expressly or by necessary implication, require the parties to the lis to be husband and wife. Clearly, in so opining, the learned SCJ has effectively re-written the statutory provision. There is nothing in Clause (d) of the explanation to Section 7 (1) of the Family Courts Act in which indicates that the clause would apply only where the litigation is between husband and wife. For the clause to apply, all that is required is that (i) there is a marital relationship, (ii) the martial relationship has resulted in a certain set of circumstances and (iii) the order or injunction which is sought in the suit is sought in those circumstances.

24. Applying these tests to the case at hand, if one examines the plaint, and the case set up by the respondents in the plaint, it is clear that the circumstances in which injunction has been sought by them have arisen out of the marital relationship between the petitioner and Pardip. Had the petitioner not married Pardip, she would never had been the daughter-in-law of the respondents, she would never had come to stay in the residence of the respondents, the respondents would never had given her any permissive licence to reside therein, and the entire chiaroscuro of events, which have been emphasised in the plaint by the plaintiffs, to highlight the alleged ignominy and persecution to which petitioner allegedly subjected the respondents, would not be in existence. The fact that the petitioner married the respondents’ son was the foundation of the relationship that emerged between the petitioner and the respondents, and it was in the circumstances which arouse out of that relationship that the entire dispute between the respondents and the petitioner, as per the allegations contained in the plaint, filed by the respondents, arose.

25. The words “arising out of” have been held, by the Supreme Court, in several decisions, to be words of wide amplitude. One may refer, in this context, to the judgments of the Supreme Court in Renusagar Power Company Ltd. v. General Electric Co., Dhanrajmal Govindram v. Shamji Kalidas and Doypack Systems Ltd. v. Union of India. In State of Orissa v. State of Andhra Pradesh, the Supreme Court held that the expression “arising out of” is wider in scope than the expression “arising under” and would include maters not only “arising under” but also matters “connected with” the instrument under consideration in that case.

26. Applying the understanding of the expression “arising out of” as contained in the afore cited decisions of the Supreme Court, it is clear that the circumstances in which the allegedly offending acts of the petitioner, against the respondents, from which the entire dispute in the suit filed by the respondents against the petitioner germinated, arose out of the marital relationship between the petitioner and the respondent.

27. I deem it necessary to emphasize, in this context, that Clause (d) of the explanation to Section 7 (1) of the Family Courts Act does not envisage a causal relationship, i.e. a relationship of cause and effect, between the marital relationship and the circumstances in which injunction was sought. All that is required is that the circumstances in which injunction was sought arose out of the marital relationship. A holistic reading of the case set up by the respondents against the plaintiff in suit 12114/2016 clearly indicates that the circumstances in which injunction was sought by the respondents against the petitioner did arise out of the marital relationship between the petitioner and Pardip, the son of the respondents.

28. That being so, in my view, the case squarely falls within Clause (d) of the explanation to Section 7 (1) of the Family Courts Act.”

26. I must, at the outset, note that in Avneet Kaur (supra) the attention of the learned Single Judge was not drawn to the earlier judgments of this Court in Manita Khurana (supra) and Meena Kapoor (supra). The learned Single Judge, therefore, observed that the petition raised an issue which is to a large extent res integra.

27. A reading of the above judgments would show that there is an apparent conflict of opinion between Manita Khurana (supra) and Meena Kapoor (supra) on one hand and Avneet Kaur (supra) on the other, on the interpretation, ambit and the scope of Explanation (d) of Section 7(1) of the Family Courts Act. While in Manita Khurana (supra) and Meena Kapoor (supra), the learned Single Judge(s) of this Court have held that the claim of a third party to a marriage, even if she be the mother of one of the spouses, cannot be adjudicated before the Family Court, and that the Suit seeking eviction based on title to the Suit property would be maintainable, in Avneet Kaur (supra), the learned Single Judge has held that such a Suit would not be maintainable as the foundation of the dispute is the marriage.

28. In Sabina Sahdev & Ors. v. Vidur Sahdev, (order dated 07.03.2018 passed in CRL M.C. No. 878/2018), a learned Single Judge of this Court, faced with a similar situation of conflicting opinions of two Benches of Co-equal strength on the issue of interim maintenance to a wife under Section 125 of the Code of Criminal Procedure, 1973, relying on Central Board of Dawoodi Bohra Community (supra), placed the issue before Hon’ble the Acting Chief Justice to, in turn, place the same before a Larger Bench for settling the issue. The same course had been adopted by the Supreme Court in O.M. Bhargava (Dead) by LRs v. Satyavati Bhargava and Others, (1994) 4 SCC 662, when confronted with contradictory views taken by two Benches of co-equal strength.

29. In view of the above, I deem it appropriate to adopt the same course in the present application. I am further persuaded to adopt this course by the fact and the submission of the learned counsels for the parties that there are many suits pending before this Court and before the learned District Courts which would involve similar question of jurisdiction and, therefore, it would be in the interest of justice that this issue is authoritatively decided by a Larger Bench.

30. The following issues are framed for consideration of Hon’ble the Chief Justice if these are to be referred for determination by a larger Bench:- ISSUES (a) Whether a suit for possession/injunction filed by the inlaws of the defendant or either of them, claiming themselves or either of them to be the exclusive owner of the property of which the possession is sought or with respect to which injunction is prayed for from or against the defendant/daughterin-law, is to be tried exclusively by the Family Court established under the Family Courts Act, and the jurisdiction of the Civil Court is barred? (b) Whether the impleadment or non-impleadment of the husband of the defendant/son of the plaintiff has any effect on the maintainability of such a suit before a Civil Court?

31. The Registry is directed to place the matter before Hon’ble the Chief Justice for appropriate directions, at the earliest.

32. List the application for further orders on 25th August, 2023.

NAVIN CHAWLA, J. JUNE 01, 2023 RN/Anuj/DJ

Geeta Anand v. Tanya Arjun & Anr.

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