Whether the family court has jurisdiction to decide the validity of marriage?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.

FAMILY COURT APPEAL No. 214/2014

Shri Mukund S/o Sudam Borkar,
V
Smt.Pradnyasheela W/o Ramesh Ghate,

CORAM :SMT.VASANTI  A  NAIK AND  V.M. DESHPANDE, JJ.
DATE   :  12TH JANUARY,   2017.
Citation: 2017(3) ALLMR 227

The short question involved in this family court appeal is whether the family court has jurisdiction to decide the question whether the respondent is the legally wedded wife of the appellant.

2. By this family court appeal, the appellant challenges the judgment of the family court dismissing the petition filed by the appellant for a declaration that he is not the husband of the respondent and that the respondent has no right to trespass in the house owned by him.

3. The relevant facts for deciding the family court appeal are stated thus :­

The appellant had filed a petition before the Family Court, Nagpur for a declaration that the respondent is not the legally wedded wife of the appellant and that she does not have any right to trespass in the house owned by him.  According to the appellant, when the appellant was posted as a lecturer in the Institute of Science College, Nagpur, the respondent seduced the appellant into a relationship.  It is pleaded that since the appellant was single, the appellant had a live­in relationship with the respondent for some time and a girl child viz. Twinkle was born from the relationship.   It is pleaded by the appellant that the relationship between the appellant and the respondent got strained and despite the strained relationship, the respondent was trying to force an entry in the house owned by the appellant and was behaving in an unruly manner, thereby threatening the peace and harmony in the house.  The appellant, therefore, sought for a declaration that the respondent is not the wife of the appellant and that she should not trespass in the house owned by him.   The appellant claimed that the husband of the respondent, viz. Shri Ramesh Ghate was alive and the marriage between the respondent and Shri Ramesh Ghate was subsisting and hence, there could not have been a ‘husband­ wife’ relationship between the appellant and the respondent.

4. The respondent filed the written statement and also filed a counter claim. The respondent denied the claim of the appellant and sought a declaration that she is the wife of the appellant.  The respondent pleaded that she was not aware about the whereabouts of her former husband Shri Ramesh Ghate and there was no relationship between herself and her former husband since 1994.   It is pleaded by the respondent that since the respondent had not heard about her former husband for fourteen years, the marriage between the respondent and her former husband did not subsist.   On the aforesaid pleadings, the respondent sought a declaration that the respondent is the legally wedded wife of the appellant.

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5. On the aforesaid pleadings of the parties, the family court framed the issues. The parties tendered the evidence and the family court, by the judgment dated 21.03.2012, dismissed the petition filed by the appellant on the ground that it did not have the jurisdiction to entertain and decide the petition as none of the parties had pleaded that a marriage was solemnized between them.  The family court held that since it was not the case of the parties that their marriage was performed at any point of time, the family court did not have jurisdiction to entertain and decide the petition.  The family court held that the petition filed by the appellant could not be decided by the family court in view of the provisions of Section 7 of the Family Courts Act, 1984.

6. Shri Shukla, the learned counsel for the appellant, submitted that the family court has failed to consider the relevant provisions of Section 7 of the Family Courts Act before dismissing the petition filed by the appellant on the ground that it had no jurisdiction to decide the same. It is stated that as per Explanation (b) to Section 7(1) of the Act, a suit or proceedings for a declaration as to the validity of a marriage or as to the matrimonial status of any person could have been decided by the family court.   It is submitted that the family court failed to consider the provisions of Explanation (b) to Section 7(1) of the Act before dismissing the petition filed by the appellant. It is prayed that by allowing this appeal, the matter may be remanded to the family court for a decision in the petition filed by the appellant, on merits.

7. Mrs Munshi, the learned counsel for the respondent, supported the order of the family court.  It is submitted that since none of the parties had pleaded that their marriage was performed, the family court rightly dismissed the petition filed by the appellant for the declaration that the appellant was not the husband of the respondent.

8 On hearing the learned counsel for the parties and on a perusal of the Record Proceedings, it appears that following points arise for determination in this family court appeal:­

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(I) Whether the family court has jurisdiction to decide the petition filed by the appellant for the declaration that he is not the husband of the respondent ?
(II) What order ?

For answering the points for determination, it would not be necessary to consider the pleadings of the parties in detail.  Suffice it is to state that the appellant has filed this petition for a declaration that the respondent is not his wife.  In the said petition, the respondent has filed a counter claim seeking a declaration that she is the legal wife of the appellant.   The appellant and the respondent have pleaded their respective cases for seeking the aforesaid relief in the petition and the counter claim.   It would, therefore, be necessary to consider the provisions of Section 7 of the Act that confers the jurisdiction on the family court.  The relevant provisions of Section 7 of the Act read thus:­

“Section 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 sub­section 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 circumstances 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) …………….
(a) …………….
(b) …………….”

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It is apparent from the provisions of Section 7 of the Act that the family court shall have the jurisdiction in a suit or proceedings between the parties to a marriage for a decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage.   So also, in view of Clause (b) of the explanation, the family court would have jurisdiction to decide a suit or proceedings for a declaration as to the validity of the marriage or as to the matrimonial status of any person.  It is apparent from a reading of Clause (b) to the Explanation that the family court would have jurisdiction to entertain and decide a suit or proceedings for a declaration as to the matrimonial status of any person. In the instant case, the appellant has sought a declaration that the respondent is not his wife and the respondent has sought a declaration in her counter claim that she is the legal wife of the appellant. Since the parties to the proceedings had sought a declaration in regard to their matrimonial status, the family court had jurisdiction to entertain and decide the petition filed by the appellant in view of Explanation (b) to Section 7(1) of the Act. Unfortunately, the family court did not advert its mind to Explanation (b) of Section 7(1) and dismissed the petition on the ground of absence of jurisdiction by  referring to Explanation  (a) and (c) of Section 7(1) of the Act. We find that the family court committed a jurisdictional error in dismissing the petition filed by the appellant for a declaration that the respondent is not his wife and the respondent’s counter claim that the respondent is the legal wife of the appellant solely on the ground that since the parties had not pleaded about the performance of their marriage, it has no jurisdiction to entertain and decide the same.

9. Hence, for the reasons aforesaid, the family court appeal is partly allowed.  The judgment of the family court is hereby quashed and set aside.  The family court is directed to decide the petition filed by the appellant and the counter claim filed by the respondent on merits, in accordance with law.  In the circumstances of the case, there would be no order as to costs.

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