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Manpreet Kaur vs Harjyot Singh on 12 March, 2020

$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO(OS) 262/2019 CM APPLs.55517/2019, 3314-3315/2020

MANPREET KAUR ….. Appellant
Through Mr.Hrishikesh Baruah with
Ms.Radhika Gupta, Advocates.
versus

HARJYOT SINGH ….. Respondent
Through Mr.Amit Gupta with Ms.Malvika
Tiwari, Advocates.

% Date of Decision: 12th March, 2020.
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANJEEV NARULA

JUDGMENT

MANMOHAN, J: (Oral)

1. Present appeal has been filed challenging the order and judgment
dated 18th November, 2019 passed by the learned Single Judge of this Court,
whereby the appellant/defendant-wife’s application being
I.A.No.15976/2019 under Order VII Rule 11 CPC filed in CS(OS)
No.444/2019 was dismissed.

2. Learned counsel for the appellant/defendant emphasises that the plaint
filed by the plaintiff/husband is barred by law i.e. under Section 4 of the
Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Hindu Marriage
Act’) read with Sections 7 and 20 of Family Courts Act, 1984 (hereinafter
referred to as the ‘Family Courts Act’). The said sections are reproduced
hereinbelow:-

FAO (OS) No.262/2019 Page 1 of 14

―4: Overriding effect of Act– Save as otherwise expressly
provided in this Act,–

(a) any text rule or interpretation of Hindu law or any custom
or usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with
respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the
commencement of this Act shall cease to have effect in so far
as it is inconsistent with any of the provisions contained in
this Act.

Section 7 read with Section 20 of Family Courts Act, 1984
―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;

FAO (OS) No.262/2019 Page 2 of 14

(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) Subject to the other provisions of this Act, a Family Court
shall also have and exercise–

(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.‖

―20. Act to have overriding effect.–The provisions of this
Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in
force or in any instrument having effect by virtue of any law
other than this Act‖ .

(emphasis supplied)

3. Learned counsel for the appellant/defendant contends that the suit
filed by the respondent-plaintiff falls under Explanation (d) to Section 7 of
the Family Courts Act.

4. Learned counsel for the appellant/defendant submits that another
learned Single Judge of this Court in Vidyanidhi Dalmia Vs. Nilanjana
Dalmia, 150 (2008) DLT 19 has held that there is no valid legal basis for the
claim for injunctions by the plaintiff/husband and he cannot assert an
actionable cause in a civil court; whatever be his remedies under the Hindu

FAO (OS) No.262/2019 Page 3 of 14
Marriage Act. The relevant portion of the said judgment relied upon by
learned counsel for the appellant is reproduced hereinbelow:-

“2. The plaintiff has, in the suit, seeks the following reliefs:

(a) Pass a decree of permanent injunction restraining the
defendant from entering into or attempting to enter into or
approach within 100 metres of the plaintiff’s residence at F-1,
Anand Niketan, New Delhi and from speaking to or approaching
the plaintiff’s staff in any manner whatsoever.

xxx xxx xxx

23. What can be deduced from the above discussion is that where
special rights, not existing previously, are created by a statute, which
provides a machinery for their enforcement, then, even in the
absence of express exclusion, the civil court’s jurisdiction over those
matters is barred. Though the plaintiff here has framed the relief in
such terms as to be seemingly different from the remedies available
under HMA, a closer scrutiny of the plaint averments would show
that in reality they are all factual assertions of cruelty, or
unacceptable behavior which constitute grounds for seeking judicial
separation or divorce. If granted after a trial, they would be deemed
binding- at least in personem, inter parties. The plaintiff husband
would then have no difficulty claiming the relief of his choice under
the HMA, as the defendant would be bound by principles of res
judicata as well as issue estoppel on the factual aspects. Surely this
circumlocutory manner of getting round the provisions of the HMA,
with its regime of special rights, special obligations on spouses, and
special responsibility on the courts constituted under it, was never
envisioned. Parliamentary intention, while enacting HMA was to
codify whatever were existing rights, and create new ones, with the
objective of enforcing them through a special mechanism. The entire
bundle of mutual rights and obligations relating to marriage,
treatment of marital discord and offences, and the remedies, was to
be dealt with under the 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 here.

FAO (OS) No.262/2019 Page 4 of 14

24. Another aspect which cannot be lost sight of is the stark reality
that if the injunctive relief claimed here is granted, it would
practically amount to decreeing judicial separation of the parties,
without the observance of requisite standards mandated by law.

xxx xxx xxx

31. Having regard to the above legal position in India, as well as
decisions from courts in other countries, 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 HMA. Taking all the plaint averments as a
whole, the court is satisfied that the suit is barred in law and
therefore, the plaint deserves to be rejected.‖
(emphasis supplied)

5. Learned counsel for the appellant/defendant further submits that the
learned Single Judge while passing the impugned judgment and order could
not have overruled the judgment and order passed by another learned Single
Judge of this Court in Vidyanidhi Dalmia (supra) relying on the decision of
the Supreme Court in Samar Kumar Roy Vs. Jharna Bera, (2017) 9 SCC

591. According to learned counsel for the appellant/defendant, the decision
of the Supreme Court in Samar Kumar Roy (supra) is per incuriam as the
said decision is contrary to the statutory provision i.e. Explanation (b) to
Section 7 of the Family Courts Act.

6. He lastly submits that a Division Bench of this Court in Rita Vashista
Vs. Anil Kumar Vashishtha; 264 (2019) DLT 594 has held that defamatory
allegations made against a spouse would amount to cruelty in terms of
Section 13(1)(ia) of the Hindu Marriage Act.

FAO (OS) No.262/2019 Page 5 of 14

7. Per contra, learned counsel for the respondent/plaintiff emphasises
that the present suit seeks to protect the plaintiff/respondent from
discharging his functions as a Judge in the Subordinate Courts.

8. Having heard learned counsel for the parties, this Court is in
agreement with the argument of the learned counsel for the
appellant/defendant that a Coordinate Bench cannot overrule a judgment of
another Coordinate Bench. If a learned Singe Judge does not agree with
another judgment of a Single Judge, he can only refer the matter to a
Division Bench. [See: SI Rooplal vs. Lt. Governor, (2000) 1 SCC 644].

9. This Court also reiterates that the Family Court is a one stop forum
for family litigations. In Jasmeet Kaur vs. Navtej Singh; 251 (2018) DLT
233, wherein one of us (Manmohan, J) was a member of the Bench, this
Court has held as under:-

―26. This Court is also of the view that the Family Court is a one
stop forum for all family litigations. This interpretation would
ensure speedy disposal and prevent conflict of judgments. In the
opinion of this Court, it would be incongruous if a suit for
maintenance or custody of minor children is transferred to the
District Court, while an anti-suit injunction filed by the same
spouse seeking stay of maintenance and/or custody proceedings
filed by the other spouse in a foreign jurisdiction is heard and
decided by this Court.‖
(emphasis supplied)

10. It is however settled law that it is not open to the High Court to hold a
Supreme Court judgment as per incuriam. In South Central Railway
Employees Cooperative Credit Society Employees Union Vs. B.
Yashodabai Ors; (2015) 2 SCC 727, the Supreme Court has held as
under:-

FAO (OS) No.262/2019 Page 6 of 14

―14. We are of the view that it was not open to the High Court to
hold that the judgment delivered by this Court in South Central
Railway Employees Coop. Credit Society Employees’
Union v. Registrar of Coop. Societies [South Central Railway
Employees Coop. Credit Society Employees’ Union v. Registrar of
Coop. Societies, (1998) 2 SCC 580 : 1998 SCC (LS) 703] was per
incuriam.

15. If the view taken by the High Court is accepted, in our opinion,
there would be total chaos in this country because in that case there
would be no finality to any order passed by this Court. When a
higher court has rendered a particular decision, the said decision
must be followed by a subordinate or lower court unless it is
distinguished or overruled or set aside. ……‖
(emphasis supplied)

11. Consequently, the submission of learned counsel of the
appellant/defendant that Samar Kumar Roy’s judgment (supra) is per
incuriam is untenable in law.

12. In a catena of cases, it has been held that at the stage of consideration
of Order VII Rule 11 CPC application, only allegations in the plaint will be
considered and not the defences put forward by the defendant. Further, if
the plaint and the reliefs are partially maintainable, then the application
under Order VII Rule 11 CPC would have to be dismissed.

13. It is also settled law that the exclusion of the jurisdiction of the Civil
Courts is not to be readily inferred, but that such exclusion must either be
explicitly expressed or clearly implied. In Dhulabhai vs. State of M.P.
(1968) 3 SCR 662, the Supreme Court has held that the jurisdiction of the
Civil Courts is all embracing except to the extent it is excluded by an
express provision of law or by clear intendment arising from such law. The
ouster of the jurisdiction of a Civil Court is not to be lightly inferred and can

FAO (OS) No.262/2019 Page 7 of 14
only be established if there is an express provision of law or is clearly
implied.

14. Keeping in view the aforesaid mandate of law, it is important to
examine the averments in the plaint as well as the reliefs prayed for in the
suit. The relevant averments and the prayers in the suit being CS(OS)
No.444/2019 are reproduced hereinbelow:-

―36. That the Defendant also sent SMSs and Whatsapp messages to
the professional colleagues, court staff (Stenographer and orderly)
anti to the spouses of professional colleagues and friends as also to
residents of Saket Court Residential Complex. The Plaintiff has
received some messages from his well wishers, which were sent by
the defendant by a number +918750821611 in a Whatsapp group
called ―Saket Kitty Club‖ (a Whatsapp group having female Judicial
Officers and spouses of male Judicial Officers residing at Saket
Court Residential Complex as members). Some such messages sent
by the defendant are reproduced hereinafter:

(a) Mon, 11 Feb, 9:31 PM
Hey well sorry I had asking u……and……..number from you.
Nothing much tell harjyot to stop having alcohol and get his
impotency cured It has been 8 year he has been torturing. U…… ,
……..her well wisher. Its-very easy to blame girl. M I fool I have
compromised for 8 years. He has started staying with his parents at
farm. I am only saket. If he had problems why be got married to me
to spoil my life.

(Names of Judicial Officers withheld)

(b) to Saket kitty dub – sometime in March/April 2019

Harjyot has not come to the house for the last one half month and not
disclosed the reason. I am really under threat and strain. All out
efforts are being made to throw me out of house again. As the family
of in laws are conniving with him and are not openly coming
forward, I have stopped my parents to wait and watch as Jam trying
my best to call him back….I had gone to request him on 21 st feb, 27
Feb and march at lunch time, and after court but despite assurance

FAO (OS) No.262/2019 Page 8 of 14
he has not turned up I had been tolerating his withdrawal symptoms
when he would consume liquor and not turn up till 2 am. I was
compelled to inform you about his conduct as he had been spreading
a word you that I was not letting him in…..any harassed lady would
seek help from the Judicial officer and his family bhalla and
specially his parents could guide him best I hope someone would
advise him to visit his wife in his house, instead of going to parents
house Is not solution. I have self respect right to live with human
dignity. Whatever is his final decision I should know soon….
Regards
Manpreet Kaur bhalla
W/o
Harkot Singh bhalla
I have self respect only I and my God know what TORTURED I have
FACED and still facing It’s easy to blame a lady.. He is judge not kid
He has house keys. He is running away from all responsibilities.

xxx xxx xxx

40. That since April 2019, the Defendant started visiting the work
place, including chamber and the court room of the Plaintiff. The
Defendant accessed the Plaintiff’s court room unauthorizedly
through the Judge’s passage.

41. That innumerable times the Defendant has shouted in the
corridors, stood in front of the Plaintiff in court room while the
Court was in session, and accessed the dias from the judge’s entry.

42. That on 11.04.2019, the Defendant put posters in the court
room presided by the Plaintiff while the court was in session. The
said act was committed in the presence of court staff, lawyers and
police officials. One of the poster placed on the court wall addressed
the Plaintiff as ―violent to wife‖.

43. That the Defendant acted maliciously with the intent to injure the
reputation of the Plaintiff and to cause harassment and
embarrassment to him. The conduct of the Defendant in coming in an
open court presided by the Plaintiff and making a mockery of

FAO (OS) No.262/2019 Page 9 of 14
Plaintiff as well as browbeating the Plaintiff by putting posters is an
ultimate act of defamation, criminal intimidation and extortion. The
Plaintiff has already written that the CCTV footage of the incident be
preserved and be forwarded to this Hon’ble Court. The Plaintiff has
received a communication that the same has been preserved but the
same cannot be supplied without the permission of the High Court of
Delhi.

44. That the Defendant came to the Plaintiffs office in Saket Court
Complex on 24.05.2019. The Defendant prevented the Plaintiff from
attending an official function scheduled for 24.05.2019 in Seminar
Hall on the 7th Floor, Saket Court. The Plaintiff was threatened that
the Defendant would enter the Seminar Hall, where the interaction
with the four Ld. District Sessions Judges-had been organized on
their elevation to the High Court of Delhi. The Defendant threatened
that if the Plaintiff tried to enter the function, the Defendant would
also follow the Plaintiff inside and creates a scene. The Plaintiff tried
his even illegible son with the Defendant and tried to explain her
illegible plaintiff at his work place. The Plaintiff was thus, not able
to attend the function for the whole hour. The Defendant left
threatening the Plaintiff with dire consequences and false litigation.

xxx xxx xxx

52. That the Defendant is also sending messages to the Court Staff of
the Plaintiff informing them about cases filed by her against the
Plaintiff at Chandigarh. The Defendant has also been asking the
Court Staff to inform the Plaintiff about personal errands of the
Defendant.

xxx xxx xxx

60. That the Defendant has no legal right to enter the court room of
the Plaintiff which the Court is in session. The Defendant is a lawyer
by profession and is aware of the same. The circulation of the
defamatory material inside the court room premises and obstructing
the court proceedings, cannot be condoned in any manner
whatsoever. The Defendant cannot be allowed to carry on her
personal vendetta by entering the court room of the Plaintiff and
blocking the Plaintiff in discharging his official duties and attending
official events. The visits by the Defendant to the Plaintiff’s

FAO (OS) No.262/2019 Page 10 of 14
workplace have been intended to defame as well as to intimidate the
Plaintiff.

61. That the repeated insult that the Plaintiff is an alcoholic, or that
he is impotent, or that he is not fit to be a judge, or questioning his
appointment as a judge is an ultimate act of defamation. The
Defendant has no right to so address and insult the Plaintiff and to so
defame him in the society. There is no public good in spreading such
allegations in the society and in the professional work space of the
Plaintiff. The allegations being made by the Defendant are even false
to the knowledge of the Defendant.

xxx xxx xxx

64.That the Defendant has acted with the malafide intention and
knowledge that they would lower the moral and intellectual character
and professional credit of the Plaintiff in the eyes of his colleagues at
the Bar, Hon’ble members on the Bench, staff and the public illegible.
The Defendant is reprehensible of disparaging the integrity honour
and reputation of the Plaintiff and wreck, vengeance upon and his
family.‖
Prayers:

(a) Pass a decree of permanent injunction restraining the Defendant
and all her servants/agents/representatives from
publishing/sending/circulating/posting/propagating any kind of
abusive or threatening or intimidating or defamatory content in
any manner whatsoever, either by print or electronically, to the
Plaintiff or the Plaintiff’s relatives, friends, staff, colleagues and
their spouses as well as other residents of Saket Court Residential
Complex;

(b) Pass a decree of permanent injunction restraining the Defendant
and all her servants/agents/representatives from visiting the
workplace of the Plaintiff and more specifically from entering his
court room and chamber and all other places where the Plaintiff
has to be present in discharge of his official duties;

(c) Direct the Defendant to unconditionally apologise to the Plaintiff;

FAO (OS) No.262/2019 Page 11 of 14

(d) Pass a decree for damages in the sum of Rs. Two Crores and one
Rupee only (2,00,00,001/-) against the Defendant and in the
favour of the Plaintiff;

(emphasis supplied)

15. Upon consideration of the aforesaid pleadings and prayer clause, this
Court is of the view that the present case is entirely distinguishable from the
case of Vidyanidhi Dalimia (supra). Unlike in Vidyanidhi Dalimia’s case
(supra), the plaintiff/husband in the present case is not seeking a judicial
separation or divorce on the ground of cruelty or to restrain the
defendant/appellant from entering or attempting to enter his personal
residence. In fact in the present instance, the plaintiff/husband primarily
seeks non-interference with judicial and official proceedings and payment of
damages for defamation and harassment. This Court is of the view that
interference/disruption of judicial proceedings and/or defamation even by a
spouse would not fall under Explanation (d) to Section 7 of the Family
Courts Act and/or within the expression ‘family litigation’. A marital
relationship between the parties is irrelevant or incidental at the highest to
the present proceedings. Consequently, in the present case, there is no
implied or explicit exclusion of jurisdiction of the Civil Courts.

16. In our view, the learned Single Judge in the impugned order and
judgment has also correctly held as under:-

―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

FAO (OS) No.262/2019 Page 12 of 14
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.

xxx xxx xxx

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‖.

(emphasis supplied)

17. Moreover, public interest, which is to be placed at the highest
pedestal, demands that no one including a disgruntled spouse does anything
that impedes administration of justice or puts a judicial officer under any
stress or embarrassment. After all, public confidence in judicial proceedings
is of utmost importance. If anyone including a spouse interferes or

FAO (OS) No.262/2019 Page 13 of 14
embarrasses a Presiding Officer by putting up posters in Court and by
sending messages to the Court staff or to other Judicial Officers who are the
husband’s colleagues, then not only a suit but a writ petition or contempt
proceeding would be maintainable.

18. Keeping in view the aforesaid observations, the present appeal being
bereft of merits is dismissed along with all pending applications.

MANMOHAN, J

SANJEEV NARULA, J
MARCH 12, 2020
KA

FAO (OS) No.262/2019 Page 14 of 14

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