Rupali Lamba & Anr vs Sukhwant Singh Lamba on 24 August, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ I.P.A. 28/2015 I.A. 16418/2015, 11081/2016, 728/2017

RUPALI LAMBA ANR ….. Petitioners
Through Ms. Ankita Gupta with
Ms. Aishwariya, Proxy Counsel

versus

SUKHWANT SINGH LAMBA ….. Respondent
Through Mr. Anirudh K. Mudgal, Advocate

% Date of Decision: 24th August, 2017

CORAM:
HON’BLE MR. JUSTICE MANMOHAN

JUDGMENT

MANMOHAN, J : (Oral)

1. Present application has been filed by the defendant under Section 151
CPC seeking a direction to transfer the present suit to the appropriate Family
Court.

2. At the pass over stage, the counsel for the plaintiffs seeks another pass
over. Since this is not the practice of this Court, the prayer for second pass
over is declined. It is pertinent to mention that even on 16th August, 2017
the matter was adjourned as the counsel for the plaintiffs was not available.

3. Learned counsel for the applicant/defendant states that a Division
Bench of this Court in Amina Bharatram Vs. Sumant Bharatram and Ors.,

IPA 28/2015 Page 1 of 7
CS (OS) 411/2010 dated 19th July, 2016 has held that the High Court does
not have jurisdiction to try and decide cases of causes listed under Section 7
of the Family Courts Act, 1984 (for short “Act, 1984”). He emphasis that
the Division Bench has held that the Delhi High Court does not possess
jurisdiction to entertain, try and decide cases and causes referred to in
Sections 7 and 8 of the Act, 1984.

4. He states that the present suit falls within the scope of matters referred
to in the aforesaid Division Bench’s judgment and does not fall within the
Original Civil Jurisdiction of the Delhi High Court insofar as the reliefs
claimed in the suit are for an award directing that the plaintiffs be
maintained by the defendant, which relief, is a cause listed under Section
7(1) Explanation (f) of the Act, 1984. Section 7(1) of the Family Courts
Act, 1984 reads as under:-

“7. Jurisdiction. – (1) Subject to the other provisions of this
Act, a Family Court shall-

a. have and exercise all the jurisdiction exercisable by
any district Court or any subordinate Civil Court
under any law for the time being in force in respect of
suits and proceedings of the nature referred to in the
Explanation; and

b. be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district Court or,
as the case may be. such subordinate Civil Court for
the area to which the jurisdiction of the Family Court
extends.

Explanation -The suits and proceedings referred to in this
subsection are suits and proceedings of the following
nature, namely:

IPA 28/2015 Page 2 of 7

a. a suit or proceeding between the parties to a marriage
for decree of a nullity 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.

5. In the opinion of this Court, as the primary relief in the present
petition is for maintenance under the Hindu Adoption and Maintenance Act,
1956, the same is liable to be transferred to the Family Court in view of the
Division Bench’s judgment of this Court in Amina Bharatram (supra). The
relevant portion of the said judgment is reproduced hereinbelow:-

“1. These proceedings emanate from an order of reference dated
09.06.2014 (“Reference Order”) made by the Learned Single
Judge in CS(OS) No. 411/2010 (“Suit”), formulating the
following questions of law for adjudication by this Court:

“(i) Whether the High Court while exercising the Original
Civil Jurisdiction is deemed to be a District Court within the
meaning of Section 2(4) of CPC in the context of Section
7(1)(a) of the Family Courts Act, 1984?

(ii) Whether the original civil jurisdiction of the High Court
excluded (sic) for any suit or petition by virtue of Sections 7

IPA 28/2015 Page 3 of 7
8 of the Family Courts Act, 1984?”

xxxx xxxx xxxx xxxx

32. This Court agrees with the plaintiff‟s submission that an
earlier specific enactment would prevail over a subsequent
legislation which is general in nature – affirmed recently by the
Supreme Court in Yakub Abdul Razak Memon v. State of
Maharashtra, (2013) 13 SCC 1. Both the Delhi High Court Act
(Section 5) and the Family Courts Act (Section 20) contain non-

obstante provisions. In Yakub Memon‟s case, the Court held that
where two statutes provide non-obstante clauses, the principle
that the later legislation would override the earlier one is subject
to the principle of „generaliaspecialibus non derogant‟. A
determination as to whether a statute is a general or a specific
one requires an examination of its subject matter and the
purpose for which it was enacted. Plaintiff urges that the Delhi
High Court Act, 1966 is a special enactment and therefore, it
ought to prevail over the Family Courts Act, 1984. However, this
Court is of the opinion that it is the Family Courts Act, instead,
which is specific in nature, as it seeks to constitute a special
mechanism for adjudication of disputes of the nature enumerated
in Section 7 of the Act (details of the distinct nature of the
procedure created under the Act have been discussed above).On
the other hand, the Delhi High Court merely provides for
original civil jurisdiction of this Court based on a prescribed
pecuniary limit, which is applicable to all civil suits. The
following observations of the Supreme Court in Abdul Jaleel‟s
case (supra) support this Court‟s conclusion that the Family
Courts Act is specific in nature:

“The Family Courts Act was enacted to provide for the
establishment of Family Courts with a view to promote
conciliation in, and secure speedy settlement of, disputes
relating to marriage and family affairs and for matters
connected therewith. From a perusal of the Statement of
Object and Reasons, it appears that the said Act, inter alia,
seeks to exclusively provide within the jurisdiction of the
Family Courts the matters relating to the property of the

IPA 28/2015 Page 4 of 7
spouses or either of them…

XXX XXX XXX
The Family Court was set up for settlement of family
disputes. The reason for enactment of the said Act was to set
up a court which would deal with disputes concerning the
family by adopting an approach radically different from that
adopted in ordinary civil proceedings…”

xxxx xxxx xxxx xxxx

35. Learned counsel for the plaintiff had submitted that there is
nothing to indicate that Family Courts in Delhi have been
released from the pecuniary jurisdiction limit. However, this
Court is of the opinion that no such formal notification extending
the Family Courts‟ pecuniary jurisdiction is required. Once it
has been held that „District Court‟ includes the High Court
exercising its original civil jurisdiction, and in the absence of a
bar limiting the pecuniary jurisdiction of Family Courts to any
pecuniary limit, they would assume jurisdiction exclusively
regardless of pecuniary values.

xxxx xxxx xxxx xxxx

42. Therefore, the reference is answered as follows:

Point No.1: It is held that the Delhi High Court is a “district
court” under Section 8 in respect of all matters enumerated in
Explanation to Section 7 (1) of the Act;

Point No.2: The Delhi High Court does not possess jurisdiction
to entertain, try and decide cases and causes referred to in
Sections 7 and 8 of the Family Courts Act.”

(emphasis supplied)

6. In pursuance to the said judgment, the Registry of this Court has
issued a Practice Direction dated 23rd December, 2016. The said Practice
Direction is reproduced hereinbelow:-

IPA 28/2015 Page 5 of 7

“HIGH COURT OF DELHI AT NEW DELHI

No. 45/Rules/DHC Dated : 23.12.2016

PRACTICE DIRECTIONS

Hon’ble the Chief Justice, on the recommendations of the Hon’ble
Judges of the Original Side, has been pleased to issue following
practice directions for information and compliance by all concerned :-

1. In view of the Judgment dated 19.07.2016 passed by the Hon’ble
Division Bench of this Court on reference in CS (OS) No.
411/2010 I.A. No. 12186/2010 titled “Amina Bharatram Vs.
Sumant Bharatram and Others”, all matters enumerated in
Explanation to Sub-Section (i) of Section 7 and Section 8 of the
Family Courts Act, 1984 shall be exclusively triable by the Family
Courts and the jurisdiction of the High Court to the extent it
exercises Ordinary Original Civil Jurisdiction in respect of such
matters stands excluded by virtue of Section 8 (c)(ii) of the said
Act. Such matters listed before this Court shall be transferred to the
Family Courts by passing the necessary Orders in this respect on
their dates of listing.

2. The Registry, henceforth, is directed not to accept such matters as
enumerated in Explanation to Sub Section (i) of Section 7 and
Section 8 of the Family Courts Act, 1984.

These Practice Directions shall come into force with immediate effect.

By Order
Sd/-

(GIRISH KATHPALIA)
REGISTRAR GENERAL”

(emphasis supplied)

IPA 28/2015 Page 6 of 7

7. Keeping in view the aforesaid mandate of law as well as the Division
Bench’s judgment in Amina Bharatram (supra) and the Practice Direction
No. 45/Rules/DHC dated 23rd December, 2016 issued by the Registrar
General of this Court, present suit along with pending applications is
transferred to the Family Court. For the aforesaid purpose, parties are
directed to appear before the Principal Judge (HQs), Family Courts, Dwarka
on 16th October, 2017, who in turn is directed to transfer the case to the
appropriate Family Court.

MANMOHAN, J
AUGUST 24, 2017
rn

IPA 28/2015 Page 7 of 7

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