Niloufer Soli Lam v. Zarir Pesi Bharucha

7.2. He further submitted that the Single Judge has failed to consider that the prayer and the averment for deposit of children’s passport as well as passport of the Appellant/Wife on Amol D. Nawale 7/37 the face of it is unconstitutional and in breach of their fundamental right of travel and personal liberty.

7.3. On going through the contents of the plaint in the First Suit, it can be seen that the same is entirely matrimonial in nature. The proposition of law as summarized on behalf of the Appellant/Wife has not even been discussed in the impugned judgment and order.

7.4. In the light of Section 20 of the Family Courts Act, 1984 and Section 8 read with the explanation, the First Suit was filed by the Respondent/Husband is not maintainable in the Original Side of the Bombay High Court.

7.5. The comparison of Clause 7(1)(a) read with explanation of Section 7 (c) of the Family Courts Act, 1984 would show that the wordings of the Sub-Section (c) of the explanation are different and the conclusion arrived at by the learned Single Judge in paragraph No.42 in the impugned judgment are not correct.

7.6. Therefore, he submitted that the First Suit filed by the Respondent/Husband should have been stayed and being transferred to the Family Court at Bandra. He also referred to the relevant provisions of Code of Civil Procedure viz. Section 9, Section 10, Section 151 and the provisions of Order VII Rule 10 and Rule 11 of Code of Civil Procedure. He also referred to the provisions of Family Courts Act,1984 and Special Marriage Act, 1954 so also he referred to the Parsi Marriage and Divorce Act,

1936. Amol D. Nawale 8/37 Mr. Anturkar, to buttress his submissions relied upon the ratio laid down in the following Judgments: a) K. A. Abdul Jaleel vs.T. A. Shahida 2003(4)SCC166. - Para no. 10,11,13,14,17 b) H.P. laxshmidevaraje vs. G. P. Asharani @ Nandani 2002SCC Online Kar 337. - Para no. 3 c) Leby Issac vs. Leena M. Ninan AIR 2005 Ker 285. - Para no.17,21,22,23 d) Musthafa versus Buhari 2017 SCC Online Ker 15325. - Para no. 11,12,13 e) P. Srihari Versus Sukunda And Another (2001) 1 APLJ 205. - Para no. 4, 5. f) Sindhu Sidhrthan Versus K. K. Sidharthan 2010 SCC Online Ker 1149. - Para no. 16, 17. g) Krishna Moorthy Versus Soumya Krishnan AIR 2016 Ker 81. - Para No. 4, 5, 9. h) Avneet Kaur Versus Sadhu Singh & Anr. 2022/DHC/2453. - Para no. 3,16,17,25, 32. On the above contentions, the Appeal needs to succeeds, is the submission on behalf of the Appellants.

8. Submission on behalf of Respondent/ Husband:

8.1. Mr. Aspi Chinoy Senior Counsel, submitted on behalf of the Respondent that there is no perversity in the impugned judgment. He submitted that in the impugned judgment and order, Amol D. Nawale 9/37 the Single Judge has taken into consideration all the relevant facts and law on the subject.

8.2. He submitted that the impugned judgment and order dated 13 March, 2023 has correctly dismissed the Interim Application filed by the Appellant/Wife, wherein dismissal of the Plaint, was sought. He contended that the dispute in the First Suit is not a family dispute. Even though Plaintiff and Defendant, are Husband and Wife, the dispute, going by the averments in the Plaint, is that of Financial transactions.

8.3. He laid emphasis on the preamble of the Family Courts Act, 1984. He submitted that the Family Court does not have capacity to deal with complex issues which are raised by the Respondent/Husband in the First Suit. He also submitted that it doesn’t make a difference, had the First Suit being filed after the filing of Divorce Proceeding in the Family Court at Bandra, Mumbai. He also submitted that strict principles of Evidence Act do not apply to the Family Courts matters.

8.4. He further stated that the strict principle of Indian Evidence Act,1872 does not apply to the Family Court. In fact, earlier even the lawyers were not permitted to appear and argue on behalf of the matrimonial parties.

8.5. He submitted that taking into consideration over all view, the impugned judgment and order is correctly passed and appeal filed by the Appellant/Wife, should be dismissed. Amol D. Nawale 10/37 Mr. Chinoy supported his submissions based on the following Judgments:a) Samar Kumar Roy vs. Jharna Bera 2017 (9) SCC 591. Para no. 15 b) Pearl Chesson vs. Sean Paul Lawrence 2022 SCC Online Bom 5876. Para No. 9 c) Harjyot Singh vs. Manpreet Kaur 2019 SCC OnLine Del 11716. Para No. 2, 23 further referred to (Manpreet Kaur vs. Harjyot Singh d) N. Rajendran vs. S. Valli 2022 SCC Online SC 157. Para No. 20, 21,22 e) R. Kasthuri vs. M. Kasthuri 2018 (5) SCC 353. Para 7 Analysis and Conclusion:

9. We have heard counsel for both the parties and have gone through the record.

10. There is no dispute that Respondent and Appellant are Husband and Wife, and follow Zoroastrian religion, and their marriage is registered under Special Marriage Act 1954 and also under The Parsi Marriage and Divorce Act 1936.

11. The Respondent/Husband has in all filed three suits / proceedings against the Appellant/Wife. Two of such suits have been filed in the Bombay High Court and Third Proceedings for divorce being Divorce Petition is filed before the Family Court at Bandra, Mumbai. Interim Applications have also been filed in all of Amol D. Nawale 11/37 these suits / proceedings by the Respondent/Husband and one Interim Application has been filed by the Appellant/Wife in the First Suit. So also Appellant/Wife has filed proceedings under Protection of Women from Domestic Violence Act, 2005 and also with Police.

12. In view of the fact that the Appellant/Wife has challenged the jurisdiction of High Court to try and entertain the First Suit, the limited question for us to decide is: Whether Family Court has jurisdiction to entertain a dispute between Husband and Wife with respect to properties of the parties ?

13. First Suit

13.1. As disputes arose in the matrimonial life of the Appellant/Wife and Respondent/Husband; the Respondent/ Husband filed the First Suit being Suit No.335 of 2022 in this Court. The reliefs prayed in the suit are reproduced herein below:- “(a) For an order and decree for a sum of USD 4,084,063 in favour of the Plaintiff and against the Defendant, together with interest @ 12% interest thereon till date of payment/realization and for costs of the suit as per the Particulars of Claim annexed as Exhibit E hereto. (b) Pending the hearing and final disposal of the suit, for an order and direction that the Defendant retransfer back to the Schwab account the assets transferred by her on/about 6 September 2022 and/or will not transfer or otherwise utilize/deal with the funds currently in her Schwab account overseas.

(c) Pending the hearing and final disposal of the suit, for an order and direction that the Defendant not be permitted to leave the country and for an order of deposit her passport along with the minor children’s passport with this Hon’ble Court.” Amol D. Nawale 12/37 Hence, the First suit seeks relief for recovery of amounts and for direction that Defendant should not be permitted to leave the country and to deposit her passport along with passport of children with this court.

13.2. This suit was filed on 07 September, 2022 and Interim Application (L) No.28657 of 2022 was filed for granting reliefs during the pendency of the suit. The prayer clause (a) and (b) in this Interim Application are reproduced herein below:- “a) Pending the hearing and final disposal of the suit and this application, for an order and direction that the Defendant/Respondent re-transfer back to the Schwab account the assets transferred by her on/about 6 September 2022 and/or will not transfer or otherwise utilize/deal with the funds currently in her Schwab account overseas; b) Pending the hearing and final disposal of the suit and this application, for an order and direction that the Defendant/Respondent not be permitted to leave the country and for an order of deposit her passport along with the minor children's passport with this Hon'ble Court;”

13.3. In the said I.A. on the date of the filing i.e. 07 September, 2022 an order was passed by the Single Judge of this Court. The operative part of the said order reads as under:- “(i) Mr. Rafique Dada, learned Senior Counsel of this Court is appointed as Mediator to attempt to resolve the rival claims of the Plaintiff and Defendant as aforementioned.

(ii) The Mediator’s report shall be submitted to this

(iii) Cost of mediation shall be borne equally by the parties.

(iv) Status quo shall be maintained insofar as the amount of USD 4,084,063 which the Plaintiff claims has been transferred by the Defendant to her own private account. (v)Status quo shall also been maintained insofar as the Plaintiff and Defendant’s partnership firm ZBA account is concerned except for day-to-day expenses to be incurred with respect to running of the partnership firm.

(vi) The Plaintiff and the Defendant may function from their partnership firm ZBA till the next date.

(vii) Passports of the Plaintiff, Defendant and their children shall be deposited with the Prothonotary & Senior Master of this Court at 11 a.m. tomorrow, i.e. on 8th September 2022. Simultaneously on depositing of the passports, the children of the Plaintiff and Defendant shall be returned to their matrimonial home.

(viii) It is clarified that the Plaintiff and the

(ix) Suit (L) No. 28654 of 2022 shall be placed for submission of the mediator’s report on 10th October 2022, high on board.

(x) Liberty to the parties to file any proceedings other than the disputes covered in the captioned Suit.

(xi) This order shall be communicated by the

13.4. Therefore, as an interim arrangement in view of the urgency as workable solution ‘status quo’ order was passed. So also learned Senior Counsel Mr. Rafique Dada was appointed as a mediator to resolve the issues. Both the Plaintiff and Defendant were allowed access to the children. Further liberty was granted to the parties to file any proceedings other than the dispute covered in the captioned suit. So also passport of the plaintiff, Amol D. Nawale 14/37 defendant and their children were directed to be deposited with the Prothonotary and Senior Master / Registrar of this Court.

13.5. Thereafter one more Interim Application viz. IA (L) 30377 of 2022 was filed by the Respondent/Husband seeking reliefs as under:-

Plaintiff shall have daily unrestricted access to his two children at all times at the Matrimonial Home or elsewhere; and/or

14. Second Suit

14.1. Respondent/Husband thereafter on 26th September 2022 filed Second Suit in the Parsi Chief Metropolitan Court Bombay in the Original Civil Jurisdiction of Bombay High Court, being Parsi Suit No. 20 of 2022. against the Appellant/Wife for dissolution of marriage under Section 32 (dd) of the Parsi Marriage and Divorce Act,1936 The said suit is filed against Appellant /Wife /Sole defendant. Apart from dissolution of marriage, the said suit also seeks access to the children, during the pendency of suit.

14.2. Respondent/Husband/original Plaintiff also filed an Interim Application being IA (L) No. 31885 of 2022 in the Second Suit. Single Judge of this Court heard the counsel for the parties in the I.A. filed in the Second Suit alongwith I.A. filed in the First Suit and passed an order on 20 October, 2022 with regard to access of the children to the Plaintiff and the Defendant.

15. Divorce Petition

15.1. The Respondent/Husband thereafter on 3 November 2022 filed one more proceeding being Petition No. A3217/2022 before the Family Court, Bandra, Mumbai for dissolution of marriage u/S. 27 (1) (d) of the Special Marriage Act, and u/ S. 7 of the Family Court Act. The prayers as made in this proceedings are required to be noted, which reads thus: “a. This Hon’ble Court be pleased to dissolve their marriage solemnized on 29th March 2012 Under Section 27 (d) of the Special Marriages Act, 1954.” Amol D. Nawale 16/37

15.2. Thereafter on 11 November, 2022 the Appellant/ Wife/original defendant filed an Interim Application (L) NO. 35119 of 2022 in the First Suit. The prayers as made in the I.A. read thus: “a. That this Hon'ble Court be pleased to reject the plaint as a whole under the provisions of Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908, as barred by law; b. That pending the hearing and final disposal of the present Application, this Hon'ble Court be pleased to stay any further hearing and/or proceedings in the Suit and any other applications filed therein; c. That in the alternate to prayer (a) and (b), this Hon'ble Court be pleased to transfer the captioned suit to the appropriate family court and try the same with the Petition filed by the Plaintiff/Respondent;” 15.[3] This Interim Application filed by Appellant/ Wife/Original/Defendant in the First Suit was heard by the Single Judge of this Court and was rejected by the Single Judge. The Appellant thereafter filed two Special Leave petitions before the Supreme Court challenging the rejection of Interim Applications which were filed in the First Suit and the Second Suit. On 5 April, 2023 the Supreme Court had granted stay of proceeding in both the suits i.e., the First Suit and Second Suit. Subsequently after hearing both the sides both the Special Leave Petitions were disposed as withdrawn with liberty to the Appellant/Wife to file appeal before the division bench of this Court. Accordingly, the present Appeal has been filed. Amol D. Nawale 17/37

15.4. It will be also necessary to consider the provisions of certain Acts which are relevant for deciding the present Appeal. The Family Courts Act, 1984.

16. The Family Courts Act was enacted on 14 September, 1984 the preamble and the statements and objects are reproduced hereinbelow:- “Statement of Objects and Reasons-Several associations of women, other organisations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th Report (1974) had also stressed that in dealing with disputes concerning the family the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure, 1908 was amended in 1976, to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the Courts in adopting this conciliatory procedure and the Courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes.”

17. For convenience few Sections of the Family Courts Act 1984, relevant for deciding the issue involved in the present proceedings are extracted hereinbelow: Amol D. Nawale 18/37 Section 7 of the Family Courts Act which deals with jurisdiction 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— Amol D. Nawale 19/37 (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.” Section 8 deals with exclusion of jurisdiction, which is reproduced herein below:-

Section 15 deals with recording of oral evidence reads as under:-

Section 16 deals with Evidence on Affidavit reads as under:- Amol D. Nawale 21/37

18. As far as execution of decrees and orders of Family court are concerned. Section 18 deal with the same. Section 18 reads as under:-

effect of Family Courts Act, 1984 reads as under:-

Amol D. Nawale 22/37 In exercise of the powers conferred by Section 21 of the Family Courts Act, 1984, the High Court of Bombay prescribed the rules for Family Courts in the State of Maharashtra called as The (Bombay High Court) Family Courts (Court) Rules, 1988. Rule No.5(1) reads as under: All proceedings instituted before a Family Court shall be by way of a Petition. In respect of applications under Chapter IX of the Cr.P.C., however, the provisions of that Code will apply. The Special Marriage Act

19. The Appellant and Respondent had registered their Marriage under the provisions of Special Marriage Act, 1954 on 29 March, 2012 before the officer at their residence in mumbai.

20. The Respondent/Husband applied for dissolution of marriage under the provision of Section 27 (1) (d) of the Special Marriage Act, which is a ground of cruelty seeking dissolution of marriage. The said petition for dissolution of marriage was filed on 3rd November, 2022 before the Family Court, at Bandra Mumbai, is pending for hearing. The Parsi Marriage and Divorce Act, 1936 Amol D. Nawale 23/37

21. The Appellant/Wife and Respondent/Husband both being Zoroastrian by religion had also solemnized their marriage by performing religious rituals at an Agyari (Fire Temple) in Mumbai under the provisions of the Parsi Marriage and Divorce Act, 1936.

22. The respondent husband has also filed suit in the Parsi matrimonial court in its ordinary original civil jurisdiction in this court, numbered as Parsi Suit for dissolution of marriage under section 32 (dd), being on grounds of cruelty and have sought custody of the children. In the said Parsi Suit the appellant /wife had also filed interim application (l) no. 35120 of 2022 praying for stay of the Parsi Suit till the decision of the petition for divorce filed by respondent/husband in the family court of bandra. Code of Civil Procedure, 1908

23. The provision of Order VII Rule 10 deals with returning of Plaint to the Plaintiff. Order VII Rule 11 deals with rejection of plaint. Order VII Rule 10 and 11 reads as under:- “Rule 10. Return of plaint.- (1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. Explanation: For the removal of doubts, it is hereby declared that a court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint, under this sub-rule. (2) Procedure on returning —On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the Amol D. Nawale 24/37 party presenting it, and a brief statement of the reasons for returning it. “Rule 11. Rejection of plaint.-- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate:] [(f) where the plaintiff fails to comply with the provisions of rule 9:] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]”

24. The Appellant/Wife, had filed an I.A. in the First Suit under the provision of Order VII Rule 10 and 11 of the C.P.C. While dealing with the application filed under Order VII Rule 10 and 11, the averments in the Plaint along with its exhibits are to be looked into.

25. In the Plaint in Paragraph no.3, the Plaintiff, has admitted that he got married to the Defendant, which reads as: Amol D. Nawale 25/37 “3. The Plaintiff got married to the Defendant on 1 April, 2012…….”

26. Paragraph no.21 of the Plaint reads as under: “Though the subject matter of the suit is financial, this suit will have repercussions insofar as the Plaintiff's children are concerned. Access to the funds she has siphoned off will embolden/incentivize the Defendant to leave the country with the minor children.” [Emphasis supplied]

27. “Points to be urged”, which are attached to the Plaint at Sr. No. 3 reads as under: “That if the Defendant is permitted to do so, the Plaintiff will be irretrievably prejudiced insofar as the monies will never be recovered. More importantly, but ancillary to this suit, the PlaintifFs paternal rights in respect of the children will be defeated.”

28. Along with the Plaint, Affidavit in support of Plaint, dated 7 September, 2022, is filed. Paragraph No. 2 reads as under: “I state that the Plaintiff has filed the present Writ Petition seeking certain reliefs against the Respondents, in view of 3rd Respondent's actions and intentions to leave India with the Plaintiff's two children, pending the adjudication of their matrimonial dispute by the family court. For the sake of brevity, the Plaintiff hereby verifies, Amol D. Nawale 26/37 adopts and reiterates all and singular statements and averments contained in the plaint which are to be treated as part and parcel of the present affidavit.”

29. After going through the plaint and its annexures, it can be concluded that the dispute is between husband and wife and with respect to their properties and orders are sought in circumstance arising out of marital dispute.

30. Respondent has heavily relied upon the Judgment of Samar Kumar Roy (supra). The relief sought in the said proceedings was under section 34 of The Specific Relief Act, for a Declaration that the Defendant is not legally married wife of the Plaintiff and she has no right to claim the Plainfiff as her husband in as much as the alleged marriage is not legal, valid and tenable in law. It was held that Civil Courts’ jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law. Therefore, the facts in the said case, are quiet different, and the case was not dealing with section 7(1) explanation (d) of the Family Courts Act, 1984. Therefore, the ratio does not apply to the present case.

31. Appellant has relied upon Judgment of K. A. Abdul Jaleel Vs. T.A. Shaheeda, (supra) wherein it has been held that the Amol D. Nawale 27/37 dispute between parties to the marriage if declaration is sought of item purchased by one of them by using the money belonging to other, such a dispute will be decided by the Family Court. Para 7 of the said Judgment is reproduced herein below: “7. Sec. 7 of the Family Courts Act gives the various types of proceedings over which the Family Court has jurisdiction to try. Sec. 7(1)(c) is one such proceedings which reads as follows: “a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them.” We are unable to accept the contention of the appellant that the parties to a marriage referred to therein shall only confine to the parties to the subsisting marriage. The object of the Family Courts Act is to settle the family disputes. The disputes relating to family may be there even after the dissolution of the marriage. In the instant case the allegation of the respondent is that the property for which she seeks declaration and partition was purchased by the appellant using the money belonged to her. Such a dispute arose between the parties consequent on the dissolution of the marriage. This dispute between them is closely connected with family dispute. If the declaration or partition was sought in respect of an item of property independently acquired by one of the parties after the dissolution of the marriage, certainly the Family Court may not have the jurisdiction. If the dispute relating to the properties which were jointly acquired at the time when they were husband and wife, any dispute relating to such properties could be decided only by a forum like the Family Court. The expression “parties to a marriage” used under Sec. 7(1)(c) of the Family Courts Act is to be construed having due regard to the objects and reasons of the Family Courts Act. It has been observed in the book “Craies on Statue Law” 7th Edition at page 102 that: “a court of justice will take into consideration the spirit and meaning of the Act apart from the words; in other words, there is still, as Jessel M.R. said, in Re Bethlem Hospital, such a thing as construing an Act according to its intent, though not according to its words.” The Family Court Judge was perfectly right in holding that the disputes between the appellant and the respondent are to be decided by the Family Court and it has got jurisdiction under Sec. 7(1)(c) of the Family Courts Act, even though the appellant and the respondent are no longer parties to a subsisting marriage.” ” Amol D. Nawale 28/37 [Emphasis applied]

32. The Division Bench of this Court in Kanak Mehta Vs. Vinod Mehta 1991 MLJ 1064 held that suit by wife for declaration that she was entitled to an undivided right, title, interest in Matrimonial home and seeking injunction restraining Defendant from disposing of the Matrimonial Home was maintainable in High Court and the suit did not fall within explanation to Section 7(1) of the Family Courts Act.

33. The said Judgment of Division Bench in Kanak Mehta (supra) was overuled by Full Bench of this court in Romilla Shroff Vs. Jaidev Shroff 2000 (3) Mh.L.J. 468. The facts are Romila/Plaintiff was domiciled in England and married to Defendant in England. Para No.30 and 31 of Romilla Shroff (supra) reads as under:- “ 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. Amol D. Nawale 29/37

31. When thus interpreted, 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. The reference is answered accordingly.”

34. In Sangeeta Kadam Vs. Balkrishna Kadam, 2006 (1) Mh.L.J.206, - It was held in matter of the claim of the wife towards ornaments and articles, the Division Bench of this Court held that as far as the claim for separate property of either of the parties to a marriage is concerned, the husband and wife were required to file a separate suit and the claim was not covered under section 27 of The Hindu Marriage Act, 1955 and the Family Court will have full Jurisdiction to entertain it under section 7(1) of the Family Courts Act as the Family Court can exercise the jurisdiction exercisable by any District Court. In regard with the claim of gold and silver ornaments, whether acquired or purchased by the wife herself, they would still fall within the concept of property belonging to either of the parties under section 7(1) explanation (c) of the

35. In the Judgment of Kamal V. M. Allaudin Vs. Raja Shaikh,AIR (1990) BOM 299, it was held that Family Court Amol D. Nawale 30/37 established in Bombay on 7th Oct 1979 is the District Court for the purpose of Section 7 and 8, read with Section 2(e) of the Family Courts Act, for the area of the Municipal Corporation of Greater Bombay. The Family Court has wider Jurisdiction to determine the claim whether ornaments were acquired or purchased by Wife herself. Such claim falls under Section 7, explanation (c) of the Family Courts Act.

36. Appellant also relied upon judgment of Leby Issac Vs. Leena M. Ninam, AIR (2005) KER 285, where it was held that suit or damages filed by Husband against Wife, based on alleged Fraud committed by Parents of Wife, it was held that Family Court had Jurisdiction because proceedings arose out of circumstances in relation to marital relationships under Section 7 (1), explanation

(d) of Family Courts Act.

37 In impugned judgment, while dismissing the I.A. Single Judge relied upon the judgment of Pearl Chesson (supra) passed by Single Judge of this Court. The facts in the said judgment were quite different from the present case, as in Pearl Chesson (supra) the suit was filed by wife against the husband and father-in-law, seeking a declaration to her title to the property. Apart from husband and wife, third parties were also involved in the Amol D. Nawale 31/37 litigation. Therefore it didint fall within section 7(1) explainition

(c) of the Family Courts Act, 1984

38. In Kasthuri Vs. Kasthuri (supra) relied upon by Respondent – legal heirship obtained by the Plaintiff was sought to be challenged by defendant no 1 and 2, who claimed to be the wife and son of late Gunaseelan whom Plaintiff no.1 also claimed to be her husband. As High Court held that civil court had no jurisdiction to entertain the suit which lay within the domain of Family Court. Supreme Court remanded the matter back to High Court.

39. According to us, The judgments of Pearl Chesson (supra), Kasthuri (supra) and Samar Roy (supra), all relied upon by Respondent are on entirely different facts, with different parties, seeking different reliefs. These are not cases only between Husband and Wife. Therefore, they do not fall into explanation of sec.7(1) of the Family Courts Act, 1984.

40. In the Judgment of S. Valli (supra) – the divorce petition was filled in the Family Court by Husband, on ground of cruelty under sec. 13(1)(ia) of the Hindu Marriage, 1955. The Supreme Court affirmed the Judgment of High Court and refused to grant a decree of disslution on the ground of cruelty. Therefore, Amol D. Nawale 32/37 the facts of this Judgment are quite different from the present proceedings.

41. In Harjyot Singh (supra)- the facts were that the Husband had instituted suit for permanant injunction to restrain the Defendant/Wife from publishing / sending / circulating / posting/ propogating any kind of abusive or threatening or intimidating or defamatory content in any manner whatsoever, either by print or electronically, to the Husband or to his relatives, friends, staff, colleagues and their spouses as well as other residents of residential complex and for permanent injunction to restrain from visiting the workplace and from entering the Court room and Chamber of the Husband and all other places where the Husband has to be present in discharge of his official duties and for mandatory injunction directing the Defendant to unconditionally apologise to Plaintiff and for recovering of damages to the sum of Rs.2,00,00,001/-. Therefore, the facts of this Judgment are quite different from the present proceedings. Proceeding arised out of Suit for defamation which doesnt fall under any of the category of explanation of sec. 7(1) of the Family Courts Act, 1984. Amol D. Nawale 33/37

42. If one looks at the ‘ Long Title’ of the Act along with its ‘Preamble’, the object of the Legislature is clear. It clearly means that all kinds of disputes between Husband and Wife including that of maintenance, properties of the parties, suit or proceedings for an Order or Injunction in circumstances arising out of a marital relationship, will fall within the jurisdiction of a Family Court.

43. After establishment of Family Court, the Jurisdiction of Civil Court in respect of matters that may fall under the explanation to Section 7 of the Family Courts Act, 1984 are ousted.

44. There is a clear emphasis in Section 7(1) of the Family Courts Act that the Family Court is to be deemed to be a Civil Court and that it shall have and exercise all the Jurisdiction exercisable by the District Court or a Subordinate Court. Section 8 of the Act, after establishment of Family Court for any area, excludes the jurisdiction of District Court or any subordinate civil Court. Family Court is a Civil Court as defined in Section 10 (1) of the Family Courts Act,1984. Sec 20, has overriding effect of the Act. As per sec 10, the provision of C.P.C. apply to proceedings before Family Court. These provisions of law will take care of the apprehension expressed by the Respondent that Family Court does not have capacity to deal with complex issues and no effective Amol D. Nawale 34/37 justice can be rendered by it, because Evidence Act does not strictly apply to the proceedings before it.

45. In our opinion Respondent/Husband by filing the Divorce proceedings in Family Court has admitted its Jurisdiction for the reliefs prayed therein. Learned Single Judge, in paragraph no.48 of the impugned judgment has held that certain interim reliefs are sought by the Plaintiff which relate to the issues which are amenable to the jurisdiction of the Family Court. Once the Learned Single Judge had arrived to this conclusion, according to us the Plaint should have been transferred to Family Court. The Learned Single Judge has not considered the provisions of the Act in right perspective and the ratio of the judgments of the Supreme Court and High Court which squarely applies to the present proceedings.

46. In the light of above discussion in our opinion the Cause of Action in the present proceedings is emerging out of circumstances related to Matrimonial relationships and the same could not have existed independently and therefore, the proceedings can be maintained only before the Family Court, as it will squarely come under explanation (d) to section 7(1) of the Family Courts Act. Amol D. Nawale 35/37

47. We therefore allow the Appeal in following terms:

(i) The order dated 13 March 2023 passed by the Learned

Single Judge of this Court in Interim Application (L) No.35119 of 2022 filed in Suit No.335 of 2022, is hereby quashed and set aside.

(ii) Interim Application (L) No.35119 of 2022, is allowed in terms of prayer clause (c) which reads as under:

(c) that in the alternate to prayers (a) and (b), this Hon’ble

Court be pleased to transfer the captioned suit to the appropriate family court and try the same with the Petition filed by the Plaintiff/Respondent.

(iii) Plaint in Suit no.335 of 2022 is transferred to the

Family Court at Bandra, Mumbai. After the Family Court receives the Plaint in Suit no.335 of 2022, the Family Court should try and dispose the suit along with Petition no.A3217/2022 in accordance with law.

(iv) All issues on merits are kept open.

48. In view of disposal of Appeal, all pending Interim Applications filed therein are also disposed of. (RAJESH S. PATIL, J.) (SUNIL B. SHUKRE, J.)

49. Learned counsel for the Respondent prays for keeping the effect of the judgment in abeyance in order to enable the Respondent to challenge the judgment before the Apex Court. Prayer is opposed by the learned counsel for the Appellant. Amol D. Nawale 36/37 However, considering the nature of dispute involved in the Appeal, we deem it necessary to accept the prayer made on behalf of the Respondent and accordingly the effect of the judgment is kept in abeyance for a period of two weeks from the date of the order. It is clarified that the interim orders passed in this suit, till this date shall be continued in the same form in which they have been passed unless they are vacated by a competent Court. Liberty is granted to the appellant to move a fresh application in this regard in the Family Court. All contentions in this regard are kept open. (RAJESH S. PATIL, J.) (SUNIL B. SHUKRE, J.) Amol D. Nawale 37/37