Harjyot Singh v. Manpreet Kaur

(iii) this circumlocutory manner of getting around the provisions of the

Hindu Marriage Act, with its regime of special rights, special obligations, on spouses, and special responsibility on the Courts constituted under it, was never envisioned; (iv) the Parliamentary intention, while enacting Hindu Marriage Act was to codify whatever were existing rights, and create new ones, with the objective of enforcing them through a special mechanism; (v) the entire bundle of mutual rights and obligations relating to marriage, treatment of marital discord and offences and the remedies, is to be dealt with under the Hindu Marriage Act; so viewed, there is no basis for the assertion of the plaintiff that he has a special zone of privacy, outside of the Act, which can form the basis of the reliefs claimed in the suit; (vi) if the injunctive relief claimed is granted, it would practically amount to decreeing judicial separation of the parties without the observance of requisite standards mandated by law; (vii) public policy considerations weighed against the plaintiff's claim for privacy against his wife; the Protection of Women from Domestic Violence Act, 2005 by Section 17 thereof conferred the women with a right to reside in a shared household; and, (viii) there is no valid legal basis for the claims for injunction sought by the plaintiff; he cannot therefore assert an actionable cause in the Civil Court; whatever be his remedies under the Hindu Marriage Act.

8. The counsel for the applicant/defendant has further contended that now in any case Section 7 of the Family Courts Act, vide Explanation (d) therein confers the Family Court with jurisdiction over a suit or proceeding for an order or injunction in „circumstances arising out of a marital relationship‟. It is contended that all claims for injunction between husband and wife are now in the exclusive domain of the Family Court. On enquiry, about the relief claimed in a suit of recovery of damages it is contended that Explanation (d) provides for “a suit or a proceeding for an order” not necessarily by injunction and the said phrase would include an order of recovery of damages as well.

9. Per contra the counsel for the plaintiff has relied on Samar Kumar Roy Vs. Jharna Bera (2017) 9 SC 591. The suit therein was under, Section 34 of the Specific Relief Act, 1963 for a declaratory decree, and Section 38 of the Specific Relief Act for perpetual injunction. It was the claim of the plaintiff therein that, by blackmail and coercion, a show of a marriage between the plaintiff and defendant was arranged by the defendant‟s father, by registration of the said marriage under the Special Marriage Act, 1954; that no essential ceremonies of a Hindu marriage were performed and there was no consummation of the said marriage thereafter. On the said pleas, a declaration that the defendant was not the legally married wife of the plaintiff and of permanent injunction restraining the defendant from claiming the plaintiff as her husband, disturbing the plaintiff at his office, on the way of the plaintiff going to office and coming back home, was sought. The plaintiff died during the pendency of the suit and his mother sought substitution, which was denied by the High Court. It was the contention of the mother of the plaintiff before the Supreme Court, that the proceeding was not a petition for dissolution of marriage but a suit under Specific Relief Act for declaration of a legal character and which could be continued even after the death of the plaintiff. The Supreme Court held, (i) that the High Courts have uniformly taken the view that a suit for declaration of a legal character filed under Section 34 of the Specific Relief Act can be continued at the behest of the legal representative of a dead plaintiff; (ii) that a suit for declaration that there was no marriage solemnised at all, cannot be considered to be a petition under the Hindu Marriage Act and was merely a suit for declaration regarding the status of the parties; (iii) that the circumstances under which a petition can be filed for annulment of marriage on the ground that the same is void, are clearly specified in the Hindu Marriage Act; however where a declaration that the marriage is void, has not been asked for on any of such grounds on which such annulment can be obtained under Section 12 or even under Section 11 of the Hindu Marriage Act, the suit remains a suit for declaration as to status of the party; (iv) that a suit or proceeding between parties to a marriage, for a decree of nullity or restitution of conjugal rights or judicial separation or dissolution of marriage, all have reference to suits or petitions that are filed under the Hindu Marriage Act for the said reliefs; there is no reference whatsoever to suits that are filed for declaration of a legal character under Section 34 of the Specific Relief Act; (v) that an exclusion of jurisdiction of the Civil Court is not to be readily inferred; (vi) that examination of the remedies provided and the scheme of the Hindu Marriage Act show that the statute creates special rights or liabilities and provides for determination of rights relating to marriage; the Act does not lay down that all questions relating to the said rights and liabilities shall be determined only by the Tribunals which are constituted under the said Act; (vii) that while Section 8(a) of the Family Courts Act excludes the Civil Court‟s jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act, where the suit is to annul or dissolve a marriage or for restitution of conjugal rights or judicial separation, it does not purport to bar the jurisdiction of the Civil Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage; and, (viii) that the Civil Court‟s jurisdiction to determine the said legal character is not barred either expressly or impliedly, by any law.

10. I have invited the attention of the counsels also to Manita Khurana Vs. Indra Khurana AIR 2010 Del 69 and Amina Bharatram Vs. Sumant Bharatram (2018) 249 DLT 107, where I had an occasion to deal with the question of jurisdiction of Civil Court after the coming into force of the Family Courts Act. In Manita Khurana supra, the plaintiff was the motherin-law of the defendant wife and had instituted the suit for recovery of possession and mesne profits. The defendant wife sought transfer of the suit to the Family Court, citing Sections 7 & 8 of the Family Courts Act. It was held that (i) the claim of a third party to a marriage, even if mother of one of the spouses, cannot be adjudicated before the Family Court, the procedure to be followed by which Court is materially different from the procedure to be followed by a Civil Court; (ii) merely because certain facts leading to the cause of action referred to the marital relationship of the defendant with the son of the plaintiff, would not make the suit as one in circumstances arising out of marital relationship; (iii) the words “circumstances arising out of marital relationship” in Explanation (d) of Section 7 of the Family Courts Act do not qualify the words “suit or proceeding” but qualify words “order or injunction”; and, (iv) thus, the order of injunction sought from the Court has to be in circumstances arising out of a marital relationship, for a suit or proceeding to fall within Explanation (d) to Section 7 of the Family Courts Act. In Amina Bharatram supra, the wife had sued her husband as well as father, mother and brother of the husband, for maintenance including residence and to restrain them from throwing out the plaintiff from the matrimonial home. The husband objected to the jurisdiction of the Civil Court, citing Section 8 of the Family Courts Act. The suit was however held to be falling within the ambit of Explanation (f) to Section 7 of the Family Courts Act which provides that “a suit or proceeding for maintenance” is a suit or proceeding over which the Family Court has exclusive jurisdiction and the jurisdiction of the Civil Court held to be barred.

11. The counsel for the plaintiff contends that my view in Manita Khurana supra is in favour of the plaintiff.

12. The counsel for the defendant, after conclusion of hearing, has also sent copies of K.A. Abdul Jaleel Vs. T.A. Shahida (2003) 4 SCC 166, Leby Issac Vs. Leena M. Ninan AIR 2005 Ker 285, Krishna Moorthy Vs. Soumya Krishnan AIR 2016 Ker 81, Musthafa Vs. Buhari 2017 SCC OnLine Ker 15325 and Jasmeet Kaur Vs. Navtej Singh 251 (2018) DLT

233.

13. However, I may notice that the decisive factor in K.A. Abdul Jaleel supra, was an earlier order in the same proceedings, which was held to operate as res judicata. The Division Bench of the Kerala High Court in Leby Issac supra, was concerned with a suit by a husband against the wife and another for recovery of Rs.10 lacs as compensation and damages on account of the defendant wife living with the second defendant in adultery. The suit was held to be within the exclusive domain of the Family Court under Explanation (d) to Section 7 of the Act. Another Division Bench of the Kerala High Court in Krishna Moorthy supra was concerned with the maintainability in the Family Court of a claim for recovery of money promised to be paid for the marriage. The parties to the proceedings were not parties to the marriage. The proceeding was held to be maintainable in the Family Court since the cause of action agitated was based on rights and obligations which arose out of the marital relationship between one party to the marriage and the mother of the other party to the marriage. Yet another Division Bench of the same High Court in Musthafa supra held a proceeding by a wife against her husband and another to whom the husband had transferred the property, for recovery of possession of the property, would be within the domain of the Family Court. Finally, a Co-ordinate Bench of this Court in Jasmeet Kaur supra held a suit between parties to a marriage for anti-suit injunction to be within the domain of the Family Court.

14. I have considered the judgments aforesaid. Needless to state that none of the judgments had occasion to consider Samar Kumar Roy supra and the same being a judgment of the Apex Court has to prevail.

15. As far as reliance by the counsel for the defendant on Vidyanidhi Dalmia supra is concerned, I find the same to be running contrary to the subsequent dicta of the Supreme Court in Samar Kumar Roy supra and which approves the earlier judgments of the High Courts of Calcutta in Krishna Pal Vs. Ashok Kumar Pal 1982 SCC OnLine Cal 120, Tapash Kumar Moitra Vs. Pratima Roy Chowdhury MANU/WB/0504/1984 and Sasanka Sekhar Basu Vs. Dipika Roy AIR 1993 Cal 203 holding suits for declaration under Section 34 of the Specific Relief Act to be maintainable before the Civil Court and negating the plea of the same being barred by the provisions of the Hindu Marriage Act and which was not noticed in Vidyanidhi Dalmia supra. In view of the said subsequent judgments, Vidyanidhi Dalmia supra cannot be said to be a binding precedent on the undersigned. Not only so, Vidyanidhi Dalmia supra does not notice (a) that the Hindu Marriage Act made no provision for the grant of reliefs as were claimed in Vidyanidhi Dalmia supra; Section 4 of the Hindu Marriage Act cannot be considered as negating the inherent civil rights of parties to the marriage against each other and confining the rights of the parties to the marriage against each other only to those provided under the Act; (b) that till the coming into force of the Family Courts Act, a proceeding under Hindu Marriage Act also used to lie before the Civil Court only before which a civil suit asserting rights other than those provided for under the Hindu Marriage Act, albeit against a party to the marriage, were asserted; and, (c) that the finding, even if any, in a trial for grant of reliefs, as were sought in Vidyanidhi Dalmia supra, would be for the purpose of that relief only and not for the relief of judicial separation.

16. The High Court of Mysore in Shankarappa Vs. Basamma AIR 1964 Mysore 247 was concerned with the jurisdiction of the Civil Court to entertain a suit by a wife for permanent injunction to restrain her husband from contracting a second marriage. It was the contention of the counsel for the husband therein, as of the counsel for the wife in this case, that the Hindu Marriage Act is a complete and exhaustive Code on all the matters regulated by it and a law to amend and codify the law relating to marriage amongst Hindus and Section 4 thereof gives the Act an overriding effect. It was held (i) that Section 4 has to be read with Section 29 and Section 19 of the Hindu Marriage Act; (ii) it is clear from the provisions of the said three Sections and particularly from Section 4 that the only statutory provisions which cease to have effect after enactment of the Hindu Marriage Act, 1955 are those which relate to matters for which provision is made in the Act or which are inconsistent with any such provisions; (iii) the suit brought by the wife therein was a suit of a Civil nature; (iv) Hindu Marriage Act has not expressly barred the institution of such a suit and there is no other law which so expressly bars it; and, (v) though the Hindu Marriage Act authorizes a declaration that the bigamous marriage is void but only after the act of bigamy is committed. The suit was thus held to be maintainable. The Division Bench of the High Court of Andhra Pradesh, in Urlankula Gopal Rao Vs. Urlankula Suramma, 1969 SSC OnLine AP 30 was concerned with the question, whether a suit by a wife for recovery of maintenance from the husband after an order for separation was made under Section 10 of the Hindu Marriage Act is maintainable or whether her remedy was only to invoke the jurisdiction of the Matrimonial Court under Section 25 of the Hindu Marriage Act. Reliance therein also was placed on Section 4 of the Hindu Marriage Act. It was held that (a) exclusion of jurisdiction of a Civil Court is not to be readily inferred and infringement of any legal right is always actionable in a Court unless its cognizance is expressly or impliedly barred; (b) there is no provision in the Hindu Marriage Act expressly barring the jurisdiction of the Civil Court in the matter of a claim for maintenance of a wife; (c) the right to maintenance of a Hindu wife is a right conferred under the ancient Hindu law and has been recognized and affirmed by subsequent enactments ending with the Hindu Adoption and Maintenance Act, 1956; (d) this legal right can always be enforced by means of a suit; in the absence of any provision negating such suit, the right to sue in a Civil Court for recovery of maintenance continues; (e) the Hindu Marriage Act is an enactment relating to marriage and in no sense can be regarded as a special law relating to the right of maintenance; and, (f) the suit thus has to be maintainable. The High Court of Bombay also in Rajeshbai & Ors. Vs. Shantabai AIR 1982 Bombay 231, concerned with the maintainability of a suit by a wife against the husband for permanent injunction restraining the husband from disturbing possession and enjoyment of the property, held that (A) the contention that only in special proceedings under the Hindu Marriage Act could such an issue arise and be adjudicated upon could not be accepted; (B) the object of enacting the Hindu Marriage Act was to amend and codify the law relating to marriages amongst the Hindus; (C) though no doubt the Act provides for special remedies with regard to specific reliefs through Marital Courts, it does not follow that when the legality of marriage in any other proceedings is in issue, the same cannot be answered by reference to the provisions of the Hindu Marriage Act; (D) some of the provisions of the Hindu Marriage Act are definitive and declaratory and they can be applied as and when occasion arises to apply the same and in any proceedings; (E) special remedial provisions available of Section 9 to 13 of the Act, permitting marital reliefs, are not exhaustive nor compulsively universal so as to exclude powers of Civil Courts to find out legality of marital relations; so when reliefs of the kind mentioned in Sections 9 to 13 are sought, those provisions are exhaustive and compulsive and exclude the jurisdiction of other Courts; (F) marriage, being a legal relation involving matters of status and title of a person; whenever the same is in issue, the definitive provisions will have to be applied; (G) remedial aspect enables either of the parties to present a petition for declaration and get a decree of nullity with regard to the marriage solemnised in contravention of the provisions of the Act; from this, it does not follow that in any other action, the legal validity of marriage cannot be set up; if such a construction is preferred, it will cut down the universal jurisdiction of Civil Courts to consider matters of civil status and title; and, (H) if marriage involves the matters of personal and proprietary titles, jurisdiction available to Courts cannot be deemed to be excluded. Finally, in Sasanka Sekhar Basu supra, the question for consideration was, whether a suit, in which reliefs other than reliefs contemplated under the various provisions of Hindu Marriage Act have been prayed for, is to be filed before the Court of the learned District Judge under Section 19 of the Hindu Marriage Act or before the Civil Court. It was held that (I) the proposition that no relief other than the reliefs contemplated under the Hindu Marriage Act can be obtained by any of the spouses cannot be accepted; (II) Section 4 of the Hindu Marriage Act inter alia provides that any other law in force immediately before the commencement of the Hindu Marriage Act shall cease to have effect so far the same is inconsistent with any of the provisions contained in the Hindu Marriage Act; (III) the provisions of the Specific Relief Act under which a person can apply for a declaratory relief, cannot be said to be inconsistent with any of the provisions of the Hindu Marriage Act when the reliefs claimed in the suit do not fall within the purview of any of the provisions of the Hindu Marriage Act; (IV) the Hindu Marriage Act, though a special Act, does not have an overriding effect for matters for which no provisions is made therein; (V) Section 4 abrogates only the rules and the law of marriage earlier applicable to Hindus, whether by virtue of any text or rule of Hindu law or any custom or usage having the force of law, in respect of all matters dealt with in the Act; (VI) Section 4 supersedes any other law only if inconsistent with the provisions contained in the Hindu Marriage Act and not otherwise; and, (VII) the Act does not impliedly or expressly exclude the jurisdiction of the Civil Court under Section 9 of the Civil Court to grant a declaratory decree under the Specific Relief Act. I may emphasise that the said judgment of the Calcutta High Court was expressly approved of in Samar Kumar Roy supra.

17. As far as the judgments of the High Court of Kerala are concerned, the reasoning thereof has not found favour in the subsequent dicta of the Supreme Court in Samar Kumar Roy supra. Samar Kumar Roy supra was a suit by a husband for declaration that the defendant was not his legally wedded wife. Notwithstanding the Explanation (a) to Section 7(1) of the Family Courts Act providing the Family Court to be having exclusive jurisdiction 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) and Explanation (b) to Section 7(1) of the Act providing the Family Court to be having exclusive jurisdiction over a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person, the suit for declaration was held to be maintainable. The same negates the reasoning through all the judgments of the Kerala High Court. If the argument of the counsel for the defendant were to be accepted, a suit for declaration by a husband that the defendant was not his legally wedded wife, would also fall within the meaning of Explanation (d) to Section 7(1) of the Family Courts Act as also under Explanation (e) to Section 7(1), providing for the Family Court to have exclusive jurisdiction over a suit or proceeding for declaration as to legitimacy of any person and which would include the legitimacy of a person as a wife.

18. Thus, in my view, the application of the defendant for rejection of the plaint has to fail on account of Samar Kumar Roy supra alone.

19. I have in Manita Khurana supra held Explanation (d) to Section 7(1) of the Family Courts Act which is invoked by the defendant to oust the jurisdiction of this Court that the words “circumstances arising out of marital relationship” in Explanation (d) to Section 7(1) do not qualify the words “suit or proceeding” but qualify the words “order or injunction”. The order or injunction claimed by the plaintiff in the present suit is of recovery of damages for defamation and harassment and for injunction restraining the defendant from indulging in acts aforementioned which are per se not permissible in law to be committed by any person, even if in a matrimonial relationship with the other. Supreme Court, in S. Nambi Narayanan Vs. Siby Mathews (2018) 10 SCC 804 observed that the reputation of an individual is an insegregable facet of his right to life with dignity. In Kiran Bedi Vs. Committee of Inquiry (1989) 1 SCC 494, it was observed that the right to enjoyment of a reputation, unassailed by malicious slander is of ancient origin and necessary to human society and a good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Therefore, none, including a spouse, has a right to publish, circulate, propagate, abuse, threaten to disseminate defamatory content, to visit the work place of the other spouse and to interfere in discharge of official duties by the other spouse. The fact that the parties are in a matrimonial relationship would, in my view, make no difference. Rather, all communications between spouses are confidential and no spouse has a right to defame other. Only proceedings in accordance with law can be taken.

20. The Hindu Marriage Act does not vest any right in a spouse of injunction or of recovery of damages on account of such acts. Even if it vests a right on the said facts to a relief of judicial separation or dissolution of marriage by a decree of divorce, it cannot be said that on account of Section 4 of the Hindu Marriage Act or any other provision, the spouse is compelled, when faced with such circumstances, to necessarily seek the reliefs of judicial separation or dissolution of marriage by a decree of divorce. None can be compelled to do so. Moreover, the reliefs of judicial separation and/or divorce would still not be a cure for the acts complained of continuing.

21. Mention may be made of Pearl Chesson Vs. Sean Lawrence MANU/MH/0127/2018 where, concerned with the maintainability of a civil suit by a wife against the husband and mother-in-law for permanent injunction restraining them from dealing with a flat claimed to be financed by the husband and wife, it was held (i) that the suit was not a proceeding arising out of the Hindu Marriage Act; it was a pure and simple proceeding for declaration under Section 34 of the Specific Relief Act, 1963, seeking to establish a right to property; (ii) the suit did not arise out of or in any way was concerned with any of the provisions of the Hindu Marriage Act; (iii) though the parties happened to be husband and wife, the suit was in respect of a property which was owned as an individual; and, (iv) such a suit would not be barred. Mention may also be made of H. P. Shobha Vs. Parvathamma 2019 Indlaw KAR 4618 upholding the maintainability of the suit for permanent injunction restraining use of surname. Mention may yet further be made of Vijayalakshmy Vs. P.K. Jayashree AIR 2019 Ker 53 (DB) holding that though adjudication of matrimonial disputes in a congenial atmosphere is a function of the Family Court and a broad and liberal approach is required in determining the jurisdiction of the Family Court, but the same does not mean that the Family Court has jurisdiction to adjudicate the matter not even remotely connected with the marriage and marital relationship; exclusion of jurisdiction of Civil Court cannot be readily inferred. Recently, in R. Kasthuri Vs. M. Kasthuri (2018) 5 SCC 353 also, the jurisdiction of the Civil Court over a suit for declaration of the plaintiff no.1 as the legally wedded wife of the deceased and of the plaintiffs no.2 to 4 as the legitimate children of the deceased was upheld, negating the plea of exclusive jurisdiction of the Family Court, reasoning that the dispute between the parties was purely a civil dispute and could be resolved vide a civil suit.

22. Seen in this context, the present is a suit by a husband against the wife to restrain the wife from defaming the husband and/or from harassing the husband and interfering in the husband performing his work and for damages therefor, and merely because the parties are married to each other, would not be determinative of the jurisdiction. The injunction and other reliefs sought cannot at all said to be arising out of marital relationship as is the requirement of Explanation (d) to Section 7(1) for a proceeding to fall in the domain of the Family Court.

23. I am therefore unable to hold that the findings, even if any, returned in the present suit of the plaintiff being entitled to the reliefs claimed would have any bearing on the proceedings, if any under the Hindu Marriage Act. Rather, I am of the opinion that for granting the reliefs of injunction, as claimed, no trial even is necessary and no findings required to be returned as the defendant apprehends. A finding of one spouse being not entitled to defame another and/or causing disturbance at the work place of another cannot be a finding of cruelty under the Hindu Marriage Act. To the said extent, I respectfully differ from Vidyanidhi Dalmia supra.

24. Resultantly, no merit is found in the application, which is dismissed.

RAJIV SAHAI ENDLAW, J. NOVEMBER 18, 2019 „pp/bs‟