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Meena Kapoor vs Ayushi Rawal & Anr. on 6 May, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 17th December, 2019
Decided on: 6th May, 2020

+ CS(OS) 104/2017

MEENA KAPOOR ….. Plaintiff
Represented by: Ms.Jhum Jhum Sarkar, Adv.

versus

AYUSHI RAWAL ANR. ….. Defendant
Represented by: Mr.Anirudh K.Mudgal, Adv. with
Mr.B.Venkatraman, Adv. for D1
Mr.Gagan Kataria, Adv. for D2

CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

1.

Plaintiff, who is the mother-in-law of defendant No. 1 and mother of
defendant No. 2 has filed the present suit seeking a decree of permanent
injunction against the defendants restraining them or their agents,
representatives etc. from entering and creating disturbance in the peaceful
possession and occupation of the plaintiff to the premises bearing No. K-
1/48, Model Town, Part II, Delhi-110009 (in short, the “suit property). Case
of the plaintiff is that she purchased the suit property consisting of ground
floor, first floor and second floor for a valuable consideration vide registered
sale deed dated 29th August, 2017 and after the purchase thereof, she
constructed the suit property which is a self acquired property of the plaintiff
with no semblance of a Joint Hindu Family or ancestral property. The
plaintiff’s husband is a senior citizen and suffering from various ailments.
Defendant No. 1 who is the daughter-in-law of the plaintiff was married to

CS (OS) 104/2017 Page 1 of 12
defendant No. 2, her son on 19th January, 2016 and due to violent and
unpredictable behaviour of defendant No. 1, there is a matrimonial discord
between the defendant No. 1 and defendant No. 2. Defendant No. 1 left the
suit property on 4th November, 2016 and since defendant No. 1 was living
with her parents, defendant No. 2 also moved out of the suit property and
started staying separately. Thus, the plaintiff claims that the defendants
have no right, title or interest in the suit property.

2. It is the case of the plaintiff that on 5 th November, 2016, defendant
No. 1 went to her parents’ place along with her belongings and valuables
and despite the best efforts of the plaintiff and her husband to try to settle the
disputes between the defendant No. 1 and defendant No. 2 to save their
marriage, due to adamant behaviour of defendant No. 1, no result was
forthcoming. Defendant No. 2 thus filed the divorce petition on the ground
of fraud and cruelty against defendant No. 1 which proceedings are pending
before the Family Courts, Rohini. Since defendant No. 2 is also not residing
in the suit property and has filed the divorce petition, defendant No. 1 has no
right to come to the suit property. The suit premises is neither the
matrimonial home of the defendant No. 1 nor a shared household.

3. Summons were issued to the defendants and written statements were
filed both by defendant Nos. 1 and 2. Defendant No. 2 has supported the
stand of the plaintiff, however, the stand of the defendant No. 1 in the
written statement is that the present suit has been filed by the plaintiff in
collusion with defendant No. 2 and this Court has no jurisdiction to entertain
the suit in terms of Notification No. 45/Rules/DHC dated 23 rd December,
2016 issued by this Court also as per the judgment of the Division Bench of
this Court in CS(OS) 411/2010 IA 12186/2010, reported as 231 (2016)

CS (OS) 104/2017 Page 2 of 12
DLT 682 (DB) Amina Bharatram Vs. Sumant Bharatram and Ors. decided
on 19th July, 2016. It is claimed that the defendant No. 1 has a right to
reside in the suit property as during the talks of marriage, it was portrayed to
the defendant No. 1 that defendant No. 2 had contributed a sum of ₹ 1 Crore
for the purchase of the suit property and had spent around ₹ 55 lakhs for the
construction of the suit property. Defendant No. 2 being the only son of the
plaintiff and her husband, was entitled to equal share in the suit property as
he was running the business and was actively involved in earning huge
profits in the said business of wholesale fabrics by the name of Vimla
Dupatta Private Ltd. Defendant No. 2 is one of the Directors of the said
company of which the two other Directors were his parents.

4. After the pleadings and admission-denial of documents were
completed vide order dated 12th April, 2019, this Court framed a preliminary
issue i.e. „Whether this matter is liable to be transferred to the Family
Courts? OPD-1‟. Hence, parties have addressed arguments on the
preliminary issue.

5. Learned counsel for the plaintiff submits that the present suit is not
between the parties to a marriage with respect to the properties of the parties
or of either of them but with respect to the absolute property of the mother
who claims injunction against defendants restraining them from entering or
creating disturbance in the peaceful possession and occupation of the suit
property.

6. Learned counsel for the plaintiff in support of her contention relies
upon the decisions of this Court reported as AIR 2010 DEL 58 Manita
Khurana Vs. Indra Khurana, CM(M) 957/2019 Atul Kumar Gupta and Ors.
Vs. Mitthan Lal Aggarwal and Ors. decided on 1st July, 2019, whereas

CS (OS) 104/2017 Page 3 of 12
learned counsel for the defendant No. 1 states that since the relief is sought
against both the defendants i.e. defendant No. 1 and defendant No. 2, the
same would be relating to a property in relation to the parties to the marriage
and hence, the decision of this Court in Amina Bharatram Vs. Sumant
Bharatram Ors. (supra) would apply to the facts of this case. Learned
counsel for the defendant No. 1 also relies upon the Practice Directions
issued by this Court pursuant to the decision of the Division Bench in Amina
Bharatram (supra) and decision of the High Court of Kerala reported as
2015 (4) KLT 471 Krishna Moorthy Vs. Soumya Krishnan.

7. Before proceeding further, it would be appropriate to note Sections 7
and 8 of the Family Courts Act, 1984 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 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;

CS (OS) 104/2017 Page 4 of 12

(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) 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.

8. Exclusion of jurisdiction and pending proceedings.-
Where a Family Court has been established for any area–

(a) no District Court or any subordinate Civil Court referred
to in sub-section (1) of section 7 shall, in relation to such area,
have or exercise any jurisdiction in respect of any suit or
proceeding of the nature referred to in the Explanation to that
sub-section;

(b) no magistrate shall, in relation to such area, have or
exercise any jurisdiction or power under Chapter IX of the
Code of Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature referred to in the
Explanation to sub-section (1) of section 7 and every
proceeding under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974)–

(i) which is pending immediately before the establishment of
such Family Court before any district court or subordinate
court referred to in that sub-section or, as the case may be,
before any magistrate under the said Code; and

CS (OS) 104/2017 Page 5 of 12

(ii) which would have been required to be instituted or taken
before or by such Family Court if, before the date on which
such suit or proceeding was instituted or taken, this Act had
come into force and such Family Court had been established,
shall stand transferred to such Family Court on the date on
which it is established”.

8. Interpreting Sections 7 and 8 of the Family Courts Act, 1984, a
Division Bench of this Court in Amina Bharatram Vs. Sumant Bharatram
Ors. (supra) held that the High Court is a District Court in terms of Section
8 of Family Courts Act, 1984 in respect of all matters enumerated in
Explanation to Section 7(1) of the Family Courts Act, 1984 and 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 Family Courts Act,
1984. Pursuant to the decision of the Division Bench, the following Practice
Directions were issued by this Court on 23rd December, 2016:

“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.”

CS (OS) 104/2017 Page 6 of 12

9. Thus, it is required to be determined whether the facts in the present
suit and the cause pleaded falls within Sections 7 and 8 of the Family Courts
Act, 1984 in which case this Court will have no jurisdiction to entertain, try
and decide the present suit.

10. In Amina Bharatram Vs. Sumant Bharatram and Ors. (supra), the
plaintiff therein had instituted a suit for maintenance and separate residence
under Sections 18, 20 and 23 of the Hindu Adoptions and Maintenance Act,
1956 and for permanent and mandatory injunction and declaration claiming
the following reliefs:-

“a) a decree of maintenance be passed in favour of the
plaintiff and against the defendants, awarding Rs.2.5 lakhs per
month and appropriate orders be passed, securing the
payment of the maintenance amount against/from the assets of
the defendants.

b) Pass a decree of mandatory injunction against the
defendants to continuing to pay the rent for the matrimonial
home or in the alternative a decree be passed, directing the
defendant to provide for residence/residential house for the
plaintiff commensurate with the house No.S-70, Panchseel
Park, New Delhi-110017 in which the parties are living at
present.

c) a decree for mandatory injunction be passed, directing the
defendants to provide for two cars of appropriate make and
two drivers for the use of the plaintiff, and her children as per
the status of the family.

d) A decree of permanent injunction be passed against the
restraining the defendant No. From throwing out the plaintiff
from the matrimonial home i.e. House No.S70, Panchseel
Park, New Delhi-110017.

e) Perpetual injunction be granted against the defendant from
in any manner selling and/or alienating the property bearing
No.L-1/4, Hauz Khas, New Delhi110016.

f) Direct the defendant to pay litigation expenses.

CS (OS) 104/2017 Page 7 of 12

g) to declare that the court fee under Section 18, 20 And 23 Of
The Hindu Adoption Maintenance Act, 1956 is payable after
the decree has been passed as it works to the disadvantage of
plaintiff.

h) costs of the suit be also awarded to the plaintiff.

i) Any other order or direction which this Hon‟ble Court may
deem fit and necessary in the facts and circumstances of the
case may also be passed in favour of the plaintiff and against
the defendant.”

11. In the light of these prayers in the suit, the husband of Amina
Bharatram being impleaded as a party, as it was suit for maintenance
provided in Clause (f) of Explanation to Section 7(1) of the Family Courts
Act, 1984, this Court held that it had no jurisdiction to entertain and try the
suit and the same ought to be decided by the Family Courts, being vested
with exclusive jurisdiction thereof.

12. In Manita Khurana Vs. Indra Khurana (supra), a Co-ordinate Bench
of this Court which also decided Amina Bharatram Vs. Sumant Bharatram
and Ors. (supra) noted the provisions of Sections 7 and 8 of the Family
Courts Act, 1984 and came to the conclusion that the Family Courts had no
exclusive jurisdiction to try the subject matter and thus, the suit before the
Court was maintainable. In the said case, Indra Khurana, the mother-in-law
of Manita Khurana had instituted a suit for the relief of ejectment,
possession and mesne profit against the petitioner/defendant from the house
claiming herself to be absolute owner of the house even though the
petitioner therein was residing in the said house after marriage with the son
of Indra Khurana. Noting the various decisions of the Supreme Court and
the other High Courts, it was held:

CS (OS) 104/2017 Page 8 of 12

“13. The Supreme Court in K.A. Abdul Jaleel Vs. T.A. Shahida
AIR 2003 SC 2525 also noticed that the approach of a Family
Court is radically different from that adopted in ordinary civil
proceedings. It was also held that jurisdiction of a court created
especially for resolution of disputes of certain kinds should be
construed liberally and a restricted meaning if ascribed to the
explanation appended to Section 7 of the Act would frustrate the
objects wherefor the Family Courts were set up. On such
reasoning, it was held that even after dissolution of the
marriage a dispute as to property of the spouses was within the
exclusive jurisdiction of the Family Court.

14. The only clause of the explanation to Section 7 of the Act
which can be said to bring within its ambit a suit of the nature
as in the present case, is Clause (d).

15. What is however significant in the present case is that the
husband of the petitioner is not a party to the suit. The Kerala
High Court has had occasion to consider whether a suit to
which persons other than spouses are a party would continue to
be governed by the Family Court Act or not . A Single Judge of
the Kerala High Court in Shyni Vs. George AIR 1997 Kerala
231 held that merely because a stranger to the marriage (in that
case the father-in-law) is also impleaded in the suit along with
the husband on the ground that the property of the wife or a
portion of it also has been handed over to him would not take
away the suit from the purview of the Family Court. It was
further held that the jurisdiction of the Family Court is not
confined to proceedings by one spouse against another and that
so long as the suit is of one spouse against the other, the suit
would be maintainable in the Family Court even if for the
purpose of seeking relief in respect of the cause of action put
forward in the suit, the suing spouse is forced to implead
persons other than the other spouse or include the close
relatives of the other spouse. It was further held that the cause
of action if common could not be permitted to be split up by
filing a suit against the husband in a Family Court and against
the father-in-law in the Civil Court. However, in the same

CS (OS) 104/2017 Page 9 of 12
judgment, it was observed that a suit for partition in which a
party to a marriage claims a share in the property not only
along with her husband or as against her husband but also
along with the various other members of the joint family would
be totally different from a case where a wife files a case for
recovery of her exclusive property against her husband and
someone else who is holding the property on her behalf like the
father-in-law in that case. On the aforesaid reasoning, in
Devaki Antharjanam Vs. Narayanan Namboodiri AIR 2007
Kerala 38 another Bench of the Kerala High Court held that a
suit for partition in which not only the husband and wife but
their children were also parties did not fall within the exclusive
jurisdiction of the Family Court and as such the decree in the
suit passed by the Civil Court could not be held to be void. The
reasoning was that the property belongs not only to the parties
to the marriage but to others as well. It was further held that
where other parties to the suit are merely a proforma party or a
party with whom the money or the property of the parties to the
marriage or either of them is entrusted or where the third party
claims through either or both the parties to the marriage or a
legal representative of a party to a marriage or a person in
possession of property of the parties to the marriage,
notwithstanding such third party being party to the suit, the
exclusive jurisdiction to try the suit would still be of the Family
Court; however where there is a sharer to the property other
than the parties to the marriage, such a sharer could not be
compelled to bring a suit for partition before the Family Court
merely because the other sharers were married to each other.
However, a Division Bench of the Kerala High Court in Joseph
Vs. Marium Thomas MANU/KE/0034/2006 held that the claim
of a stranger over a property over which the wife had a charge
for her maintenance was not required to be adjudicated in the
Family Court. It was held that Section 7 excludes the
jurisdiction of the civil court only in certain matters which are
relating to proceedings between parties to a marriage;
however, the claim of a total stranger could not be covered by
Section 7 of the Act.

CS (OS) 104/2017 Page 10 of 12

16. A Single Judge of the Bombay High Court in Rakhi Vs.
Jayendra MANU/MH/0799/2008, has held that the Family
Courts Act which is a special legislation and creates a forum
and mechanism for beneficial and effective enforcement of
existing rights cannot be construed to bring within its
jurisdiction what was not intended and expressed so. In that
case the suit filed by the father-in-law for an injunction
restraining the daughter-in-law from entering the house which
he claimed to be belonging to him absolutely was held not
transferrable to the Family Court.

17. I respectfully agree with the Division Bench of the Kerala
High Court and the view aforesaid of the Bombay High Court.
The claim of a third party to a marriage even if she be the
mother of one of the spouses cannot be adjudicated before the
Family Court and to the prejudice, on the aspects noted herein
above, as to procedure, appeal, limitation, of such third party. It
may be noted that the respondent/plaintiff in the present case is
claiming absolute title to the property not as the representative
or trustee of the husband of the petitioner/defendant and/or
through the husband of the petitioner/defendant but in her own
capacity as the widow and nominee of her deceased husband. It
is also significant that though the petitioner/defendant is
admitted to have been inducted into the suit premises owing to
the marriage with the son of the respondent/plaintiff but that is
not the cause of action for the suit. The cause of action for the
suit is the refusal of the petitioner/defendant to vacate the house
of which the respondent/plaintiff claims to be the exclusive
owner. Merely because certain facts leading to the cause of
action referred to the marital relationship of the
petitioner/defendant would not make the suit as one in
circumstances arising out of a marital relationship. The
language of Clause (d) of Section 7 is peculiar. The words
“circumstances arising out of marital relationship” do not
qualify the words “suit or proceeding‟ but qualify words „order
or injunction”. Thus, the order of injunction sought from the
court has to be in circumstances arising out of marital
relationship. The order sought in the present case of eviction of

CS (OS) 104/2017 Page 11 of 12
the petitioner/defendant and of recovery of mesne profits from
the petitioner/defendant does not arise out of a marital
relationship but arises out of exclusive ownership claimed by
the respondent/plaintiff of the property and the occupation
thereof by the petitioner/defendant without authority and/or
after the authority has ceased”.

13. The facts of the present case are similar to the facts in Manita
Khurana Vs. Indra Khurana (supra). In the present case, the plaintiff claims
to be the exclusive owner of the suit property having purchased the same by
way of a registered sale deed dated 29th August, 2014 and seeks the relief of
injunction against the two defendants. Merely because the two defendants
are married and the defendant No. 1 has taken the plea that some money in
the purchase of the suit property and the construction thereof was spent from
the earnings of defendant No. 2 which plea of defendant No. 1 would be hit
by the Benami Transactions (Prohibition) Amendment Act, 2016, the relief
in the present suit cannot be said to be between the parties to the marriage
with respect to the property of the parties or either of them. Consequently,
the preliminary objection raised by the defendant No.1 that the present suit
is not maintainable and should be tried by Family Court is dismissed.

14. List the suit before Court on 7th September, 2020 for further
proceedings.

(MUKTA GUPTA)
JUDGE
MAY 6, 2020
‘akb’

CS (OS) 104/2017 Page 12 of 12

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