Family Court Jurisdiction in FMA,SMA and HMA

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

Civil Revision Application No.113 of 2004
ALONG WITH
Writ Petition No.912 of 2004

Minoti Anand & anr. .. .. Petitioners
v/s.
Subhash Anand & ors. .. .. Respondents

Ms.Chandana Salgaonkar-Radia for Petitioner No.1.
Ms.Pushpa Menon i/by Mr.Vinay Menon, Suvarna Joshi and Ms.Shabnam Kaji for Respondent No.1.

CORAM : SMT.ROSHAN DALVI, J.

Date of reserving the judgment : 31st January 2011 Date of pronouncing the judgment : 9th February 2011

JUDGMENT :

1.The order of the Family Court, Bandra, Mumbai dated 8th June 2004 declaring the inherent jurisdiction of the Family Court is challenged in the above Revision Application. Other interim orders dated 30th December 2003 and 9th January 2004 appointing a Commission and clarifying its ambit respectively are sought to be challenged in the above Writ Petition.

2.The issue of jurisdiction is the seminal dispute between the parties and must be first decided. Based upon that decision, the other interim orders relating to commission for certain inquiries with regard to the properties of the parties to the dispute would be seen. Respondent No.1/husband herein filed a divorce Petition being MJ Petition No.A-1931 of 2003 in Family Court, Mumbai. Aside from the relief of dissolution of his marriage with Petitioner No.1/wife herein, he applied for a number of reliefs with regard to the properties standing in the names of himself, his wife, his two sons as also a Trust settled by him which are claimed to be the properties purchased by him in the names of his family members. A Petition came to be filed for dissolution of marriage under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955 (HMA).

3.The parties are Hindus. They have been married in Kobe, Japan.

4.Upon the premise that the marriage was solemnised under the HMA, a Petition came to be filed under that Act in the Family Court by the husband. The wife claimed that their marriage was solemnised and registered not under the HMA but under the Foreign Marriage Act, 1969 (FMA). It is her case that the Petition could not have been filed under the HMA. It had to be filed under the Special Marriage Act, 1954 (SMA) in the Family Court.

5.The territorial jurisdiction of the Family Court, Mumbai has not been disputed in the said Petition by the wife. She resided in Japan only between November 1972 and January 1973, after which she was residing in Mumbai. Consequently, she last resided in Mumbai when the Petition came to be filed and has accepted the territorial jurisdiction of the Court.

6.It has been her case that the Petition is not maintainable under the HMA and that the reliefs prayed for in the Petition, both for dissolution of the marriage as well as in respect of all the properties, claimed in the Petition by the husband are not maintainable. She applied for rejection of the Plaint/Petition under Order VII Rule 11(d) of the Code of Civil Procedure. She claims that the relief of dissolution of marriage under the HMA is barred because the Act itself does not apply to the marriage solemnised between the parties. She further claims that the relief relating to the various properties claimed by the husband is barred under Section 7 Explanation-C that relief is claimed not only in respect of the property of the parties to the marriage or either of them but also properties admittedly of Respondent Nos.2 and 3 who are the sons of the parties.

7.These contentions must be separately considered.

8.Re : Relief of dissolution of marriage : The parties admittedly got married on 5th November 1972 in Kobe, Japan. That marriage has been registered as reflected in the certificate of marriage produced by the husband. The certificate of marriage, Exhibit-B to the Civil Revision Application, shows the certification by the Consul General of India, Kobe, certifying that the husband and the wife informed him in writing that they desired their marriage to be registered under Section 16 of the Foreign Marriage Act, 1969 (FMA) and had signed under the said certificate in the presence of three witnesses declaring that the marriage ceremony had been performed between them and that they had been living together as the husband and wife since the time of their marriage. The marriage came to be registered on 16th November 1972. The certificate has been issued under Section 14(2) of the FMA. Section 14(2) of the FMA Act runs thus:

14. Certificate of marriage.-(2)On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized, and that all formalities respecting the residence of the party concerned previous to the marriage and the signatures of witnesses have been complied with.

9.The marriage, therefore, came to be registered. The said certificate is deemed to be the conclusive evidence of the fact that a marriage was solemnised under the FMA and that the necessary formalities were complied under Section 14(2) of the FMA.

10.Parties are not at dispute with regard to the fact that their marriage was solemnised under the Act consequent upon such registration. This is in accordance with Section 17(1) and (6) of the Act which run thus :

17. Registration of foreign marriages.-(1) Where-

(a) a Marriage Officer is satisfied that a marriage has been duly solemnized in a foreign country in accordance with the law of that country between parties of whom one at least was a citizen of India; and

(b) a party to the marriage informs the Marriage Officer in writing that he or she desires the marriage to be registered under this section, the Marriage Officer may, upon payment of the prescribed fee, register the marriage.

(6) A marriage registered under this section shall, as from the date of registration, be deemed to have been solemnized under this Act.

11.Parties are at dispute with regard to the matrimonial reliefs that can be claimed by them consequent upon such solemnisation and registration. The wife contends that under Section 18(1) of the FMA, the provisions of the Special Marriage Act, 1954 (SMA) would apply. The Petition, therefore, should have been filed under the SMA and not HMA. The husband contends that under Section 18(4) of the Act, the parties would be governed by not the SMA but the HMA which is the other law applicable to parties at the relevant time. Sections 18(1) and (4) run thus :

18. Matrimonial reliefs to be under Special Marriage Act, 1954.- (1) Subject to the other provisions contained in this section, the provisions of Chapters IV, V, VI and VII of the Special Marriage Act, 1954 (43 of 1954), shall apply in relation to marriages solemnized under this Act and to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India as they apply in relation to marriages solemnized under that Act.

(2) ….
(3) ….

(4)Nothing contained in sub-section (1) shall authorise any court to grant any relief under this Act in relation to any marriage in a foreign country not solemnized under it, if the grant of relief in respect of such marriage, whether on any of the grounds specified in the Special Marriage Act, 1954 (43 of 1954), or otherwise is provided for under any other law for the time being in force.

12.It is the case of the husband that the parties had married under the HMA according to the Hindu Custom on 4th November 1972. They married thereafter as per the Japanese Custom on 5th November 1972. The registration certificate of their marriage does not show the date of the marriage. It shows their desire to register the marriage under Section 17 of the FMA signed by both the parties. However, the date of marriage is not essential to consider, Upon the factum of registration of the marriage, the solemnisation of marriage becomes a conclusive fact under Section 14(2) cited above. What is conclusive evidence must be seen.

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13.Under Section 4 of the Evidence Act, the treatment of evidence upon the conclusive proof of a fact is set out thus:

4. Conclusive proof -When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Since under Section 14(2) of the FMA, the registration certificate is deemed to be conclusive evidence of the fact that the marriage is solemnised under the FMA, no evidence with regard to the fact that the marriage was solmnised under the HMA can, therefore, be allowed under Section 4 of the Evidence Act because such fact stands proved by virtue of the deeming provision.

14.Counsel on behalf of the wife has drawn my attention to two judgments of the Supreme Court which amplify this case very neatly. In the case of Smt.Somawani & ors. vs. The State of Punjab and ors., AIR 1963 SC 151, the meaning of conclusive evidence and conclusive proof is set out. It is held that there is no difference between the two expressions conclusive proof and conclusive evidence . It is observed that when a law declares that a fact wold be conclusive proof of another fact, the Court is precluded from considering other evidence once such fact is established. Therefore, when the law makes a fact conclusive proof of another fact, that fact stands proved and the Court must proceed on that basis. Further evidence is, therefore, barred under the Evidence Act since one fact is regarded as proof of another fact. It is further observed that where the evidence is conclusive, there is no option but to hold that such a fact exists. Such conclusive evidence shuts out any other evidence which would detract from conclusiveness of that evidence. It is, therefore, held that in substance there is no difference between the conclusive evidence and conclusive proof and the aim of both these expressions is to give finality to the establishment of the existence of a fact from the proof of another fact.

15.The essence of this very provision is that when one fact becomes or is statutorily deemed to be conclusive evidence of another fact, any other evidence, which would disprove such other fact cannot be led.

16.In this case, the registration certificate of the marriage between the parties is conclusive evidence of the fact that their marriage was solemnised under the FMA and not any other Act. Therefore, evidence with regard to the fact that their marriage was actually solemnised under any other Act at any other time cannot be allowed and cannot be seen. It may be that parties married for the purpose of their own satisfaction or appeasement under different laws. In this case, the husband has sought to claim that the parties had married initially under the HMA as per Hindu Vedic rites and, therefore, their marriage can be dissolved only under the HMA. However, their marriage has not been registered under the HMA. Their marriage has been registered under the FMA. Hence it must be taken to be proved conclusively that it was solemnised under the FMA and not HMA.

17.In the case of Calcutta Municipal Corporation vs. Pawan Kumar Saraf & anr., (1999) 2 Supreme Court Cases 400, also it has been held that if a statute makes a certain fact final and conclusive, no evidence can be led to disprove such fact. In paragraph 13, the reasoning as well as the consequence of the legal presumption under Section 4 of the Evidence Act has been set out : (i) that it gains finality and (ii) that it becomes irrefutable so far as the facts stated in the evidence, which becomes conclusive proof, are concerned. In this case, therefore, there is finality with regard to the registration and solemnisation of the marriage of the parties under the FMA. Further it becomes irrefutable that their marriage was registered under Section 17 of the FMA and not under HMA or any other legislation. It must be appreciated that under Section 17(1), the certificate of registration is issued upon the satisfaction of the Marriage Officer (in this case Consul General) that the marriage was duly solemnised in the foreign country in accordance with law of that foreign country, in this case Japan, and the Marriage Registrar as per the Marriage Certificate, would be deemed to be solemnised under the FMA.

18.That being the position, the consequences of the parties obtaining matrimonial reliefs in case of breakdown of their marriage and for dissolution of the marriage is as set out in the statute itself being Section 18(1) of the FMA.

19.Under Section 18(1), the matrimonial reliefs would be granted to the parties under the Special Marriage Act. However, if their marriage was not solemnised under the FMA, though the marriage took place in a foreign country, the grant of relief in respect of such marriage would be provided under any other law; in the case of these parties, who are Hindus, it would be the Hindu Marriage Act; in the case of Christians, it would be the Indian Divorce Act, etc. It may be repeated that Section 18(4) would not apply to the parties in this case because their marriage was solemnised under the FMA and there is conclusive evidence of that fact from the certificate of registration itself.

20.Counsel on behalf of the husband has drawn my attention to the judgment in the case of Vincent Joseph Konath vs. Jacinitha Angela Vincent Konath, AIR 1994 Bombay 120. In that case the parties were Christians. They were domiciled in India. They married in Bahrain Island. The wife last resided in Bombay, India. Their marriage was solemnised in Bahrain. However, it was not registered under the FMA. It was, therefore, not solemnised in the manner prescribed under the FMA. It was held that the Indian Divorce Act applied and the High Court at Bombay had jurisdiction to grant matrimonial relief.

The subtle distinction between this case and the case cited is in the registration itself. Since the registration certificate statutorily confers conclusive proof of solemnisation of marriage. The lack of certificate cannot show such solemnisation since only upon registration the marriage is deemed to be solemnnised under that Act. Upon non-registration of the marriage, the marriage cannot be taken to be solemnised under the FMA, though it was solemnised in the foreign country. Therefore, the fact of solemnisation is conclusively proved. Upon such solemnisation, the provisions of Special Marriage Act would apply under Section 18(1) of the FMA for grant of matrimonial reliefs. Therefore, when the marriage is not registered and it is not conclusively proved that it is solemnised under the FMA, the SMA would not apply and the other law, otherwise applicable to the parties as per their personal law, would apply.

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21.Hence though the Petitions in both these cases could be filed in the Family Court where the parties last resided, they could be filed only under the specific legislations which apply to the parties. In this case, the specific legislation that would apply to them consequent upon the solemnisation of the marriage under the FMA, which is consequent upon its registration under the FMA, is, under section 18(1) of the FMA, under the SMA.

22.Counsel on behalf of the Petitioners also drew my attention to the case of Dr.Abdur Rehman Undre vs. Padma Abdur Rehman Undre, 2 (1982) D.M.C. 156 D.B. (Bombay) in which a Muslim husband and Hindu wife, who married according to the British Marriage Act, 1949 (BMA) and who registered their marriage under that Act, were held not to be governed by their personal law but the BMA itself. That marriage was solemnised and registered under the BMA in 1966 prior to the enactment of the FMA. It was observed at page 218 of that judgment that FMA was a complete Code in itself. It was intended to cover all foreign marriages. It applies to all marriages solemnised in a foreign country. In that case, it was held that all such marriages would be governed only under Section 18(1) read with the relevant provisions of the SMA, except where any Indian Law statutorily, or otherwise, provided for the grant of relief. In that Act, the pronouncement of Talaq unilaterally by the husband was held not to be applicable to the parties as it was not under any specific statute that it was pronounced. The Shariat Act, under which the husband sought to claim relief, was held not to apply as contemplated under Section 18(4) of the FMA upon the premise that the Muslim wife did not have right to obtain matrimonial relief analogous to a Muslim husband by pronouncement of Talaq. It was observed in paragraph 15 of the judgment that the grant of relief in respect of such a marriage must mean a relief which could be granted in a Court in respect of matrimonial matters. It was observed in paragraph 16 of the judgment that Section 18 would have to be construed harmoniously so as to discover a true intention of the legislature to make the law effective and not to frustrate the legislative intent in that behalf. The FMA was, therefore, held retrospectively also. In paragraph 16, it was further observed that Section 18(4) dealt with the authority of the Court to grant relief only in case of marriage in a foreign country not solemnised under the Act (FMA) and that too if the relief was provided under any other law.

23.Once, therefore, it is seen that the marriage is solemnised under the Act, there can be no debate that the SMA would apply.

24.Consequently, the Petition filed under the HMA cannot be sustained. Such a Petition is barred under Section 18(1) of the FMA. The case of the parties does not fall under Section 18(4) of the FMA. The main relief in the Petition is with regard to dissolution of the marriage under Section 13(1)(i)(a) of the HMA which is inapplicable to parties. No relief can be granted under that provision to either of the parties. Consequently, from statements in the Petition itself which show the factum of the registration of the marriage as per the aforesaid registration certificate, it appears that the Petition is barred by the FMA. The ancillary reliefs with regard to the properties of the parties as also the properties of their sons cannot, therefore, be granted in such a Petition.

Re : Relief in respect of properties :

25.The husband has applied for various reliefs in respect of properties standing in the names of his wife and sons under Section 27 of the HMA Act which runs thus:

27. Disposal of property.- In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

26.It is contended on behalf of the wife that the reliefs with regard to the properties admittedly standing in the names of two sons of the parties, Respondent Nos.2 and 3 in the Petition filed in the Family Court pursuant to any Trust settled by the husband is outside the purview of Section 7 Explanation C of the FMA and is accordingly barred under that Act. 17 Under Section 7 Explanation C, the Family Court would exercise jurisdiction in a suit or proceeding between the parties to a marriage with respect to the properties of the parties or either of them. The husband has contended that all the properties, for which reliefs are claimed, are his properties. He is a party to the marriage. He thus claims reliefs in respect of all his properties. His marriage is only with his wife. Even from the statements made in the Petition by the husband himself several of these properties are in the names of the children of the parties. The husband has claimed that these were actually purchased out of his own funds but taken in the names of his children. They are, therefore, held benami in the names of the children. The provisions of Benami Transactions Act would apply to those properties. The husband seeks a declaration that they belong to him instead. Such a declaration can be granted only by the Civil Court upon considering the admitted case of the husband that the properties stand in the name of his sons, though purchased from his funds. Only a Civil Court could look into whether the transaction would fall within the mischief of Section 4 of the Benami Transactions Act, 1988. Those properties, therefore, cannot be taken to be the properties of the husband as contended by him upon a reading of the statements in the Petition itself. Consequently, the 18 matrimonial Petition with regard to the declaratory relief sought against the two children for the properties standing in their names, they being not the properties of the parties and they being not parties to the marriage would be barred under Section 7 Explanation C of the Family Courts Act, 1984.

27.It is argued on behalf of the husband that the Family Court would decide whether the declaratory reliefs sought can be granted and that the husband cannot be non-suited before such decision. That would require the Family Court to grant relief admittedly in respect of properties which are not the properties of the parties to the marriage. In fact, to the extent of that claim, the suit or proceeding also would not be between the parties to the marriage. In fact, the very joinder of the two sons as necessary parties shows that the suit or proceeding is in respect of the properties claimed by Petitioner No.1 but in the names of his sons. Only a Civil Court can grant declaratory reliefs upon proof by the husband that the properties were purchased by him from his funds and the consequences of the Benami Transactions Act would thereafter apply.

28.Counsel on behalf of the husband has referred me to the Division Bench judgment of this Court in the case of Sangeeta Balkrishna Kadam vs. Balkrishna Ramchandra Kadam, AIR 1994 Bombay 1 in which it has been held that even disposal of property other than the one specifically covered under Section 27 of the HMA could be dealt with in the same Petition. The Court exercised its power under Section 151 to prevent multiplicity of litigation in respect of properties acquired by the parties to the marriage even after the marriage. It held that the properties contemplated under Section 27 of the HMA, which otherwise related only to joint property acquired at the time of marriage, would also include separate property acquired by the wife out of her own earnings. It is observed in paragraph 13 of the judgment that the restrictive interpretation of Section 27 of the HMA could not be given and the parties could not be relegated to institute separate proceedings only in relation to their properties when the properties belonging to one of the spouses singly or jointly, where it is inextricably woven into a matrimonial dispute and virtually inseparable from it. The noble thought behind exercising those inherent powers was to prevent proliferation of litigation, increase of cases and the attendant trauma to the parties.

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29.That suit, however, dealt only with the properties of the parties to the marriage.

Section 27 of the HMA, therefore, deals with the provision to be made in respect of the properties of the parties in a proceeding under the HMA. That would be an ancillary relief. The proceeding under the HMA would essentially be for the divorce, restitution of conjugal rights, nullity, etc. The provision is required to be made by the Court as would be just and proper in respect of the properties of the parties. The properties, which are contemplated in the section, are the properties presented at or about the time of marriage . Consequently, by exercise of inherent powers, the expression about the time of marriage is read as after the marriage. It would then be the properties acquired by the parties either singly or jointly after the marriage. For all of those properties, the Family Court would make a provision by a just and proper order for the disposal of such property under Section 27 of the HMA. However, the mandate under that section is only with regard to the properties which may belong jointly to both the husband and the wife. Under the exercise of the inherent powers, the property which belongs singly to the wife in that case (and by way of parity of reasoning, which may belong singly to the husband also) was brought within the purview of the broad definition of Section 27 of the HMA.

30.However, even under such broad interpretation, the property standing in the name of any other person was not brought within the purview of the HMA. Hence the properties in the names of the sons could not be brought within the purview of the Petition filed by the husband. The reasoning behind such a restriction is that the Hindu Marriage Act cannot apply to any proceeding between the father and the son, except for matters relating to and dealing with aspects which came within that relationship i.e. relationship of father and the son separately provided for by that special legislation, the HMA. Only two aspects would be within such relationship : custody and access of their person and maintenance and education of the children.

31.However, for an order to be passed under Section 27 of the HMA for disposal of property to make any provision, which is just and proper, the properties of any parties other than the parties to the marriage is neither statutorily provided nor contemplated under the wide interpretation of the aforesaid precedent.

32.In fact, Counsel on behalf of the wife drew my attention to the judgment in the case of P. Srihari vs. Kum. P. Sukunda, AIR 2001 Andhra Pradesh 169 DB in which it is specified that disputes between the brothers, sisters, mothers and fathers concerning property is not maintainable before the Family Court. There is no dispute other than the dispute with regard to the properties between the husband and the sons. There is total absence of any dispute. The Family Court s jurisdiction requires a dispute between the husband and wife with regard to their marital status, including child custody or child maintenance. It is observed in paragraph 5 of the judgment that if any such dispute is absent, by no stretch of imagination, can the Family Court assume jurisdiction in case of a dispute between the other members of the family concerning any property. The judgment, therefore, held that the Family Court had no inherent jurisdiction to try such a dispute. That essentially is the bar under Section 7 Explanation C of the Family Courts Act.

33.It is, therefore, seen that in respect of the reliefs sought with regard to various properties also, the Petition is barred by the Family Courts Act itself.

34.The essential reliefs claimed by the husband are two:(i) for dissolution of his marriage and (ii) for declaration with regard to the properties and other ancillary reliefs with regard to the properties. The first is barred by Section 18(1) of the FMA. The second is barred by Section 7 Explanation C of the Family Courts Act, 1984. The Petition must, therefore, be rejected.

35.The Writ Petition has been filed challenging the order of appointment of Commissioner to take inventory of the articles in certain flats and other premises mentioned in Schedule-B to the Interim Application taken out by Petitioner No.1. Since the wife claimed that the Petition itself was barred under the Family Courts Act and no relief can be passed by the Family Court in respect of several properties not belonging to the parties to the marriage, the wife contested the application for the appointment of Commissioner and other incidental reliefs. Since it is seen that the relief itself is barred, the question of making an inventory of the articles in the properties would not arise and could not have been granted.

36.After the order of making an inventory came to be passed, it has been modified by consent of the parties. That order has also been challenged. It is contended on behalf of the husband that that is a consent order. The clarificatory order, which came to be passed, was with regard to the conduct of the commission by the Commissioner appointed by the Court who was the Commissioner named by the parties. However, in view of the above observations with regard to the power of the Court, the question of carrying out commission does not arise.

37.In the result, the Civil Revision Application as well as the Writ Petition succeed. The order of the Family Court dated 8th June 2004 rejecting the application for rejection of the Petition deserves to be interfered with and is set aside.

38.The Matrimonial Petition of the husband being M.J. Petition No.5134 of 2003/A-1931/2003 must be rejected.

39.The husband shall however be entitled to file a fresh Petition in accordance with law.

40.Consequently, the orders dated 30th December 2003 and 9th January 2004 challenged in the Writ Petition also require to be interfered with and are set aside.

41.Rule is granted accordingly. No order as to costs.

A status quo order is passed pending these petitions. The status quo order already passed is continued for four weeks.

(SMT.ROSHAN DALVI, J.)

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