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Ravindra Sukhdev Ghadge vs Swati Ravindra Ghadge Swati … on 2 November, 2018

1 SA237.2016

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.

SECOND APPEAL NO. 237 OF 2016

Ravindra Sukhdev Ghadge,
Age : 40 years, Occ. Teacher, R/o. Sawarkar Nagar,
Ward No. 1, Chikhali, Tal. Chikhali,
Dist. Buldana. … Appellant
(Orig. Respondent)
VERSUS

1] Swati Ravindra Ghadge @ Swati Bhonde,
Age : 27 years, Occu. Household,
R/o. N-12, CIDCO, Aurangabad,

2] Tanmay S/o. Ravindra Ghadge,
Age : 10 years, Occu. Education,
Under Guardianship of Respondent No. 1

3] Arav S/o. Ravindra Ghadge,
Age : 3 years, Occu. Nil,
Under Guardianship of Respondent No. 1 … Respondents
(Orig. Petitioners No. 1 to 3)
……….
Mr Jiwan J. Patil, Advocate for the appellant
Mr M. S. Karad h/f Mr S. V. Jadhavar, Advocate for respondent
………….

CORAM : A. M. DHAVALE, J.
DATE : 2ND NOVEMBER, 2018.

ORAL JUDGMENT:-

1. In this second appeal, Mr. Jiwan Patil, learned counsel for

the appellant has raised issue of jurisdiction of the trial Court as well

as the appellate Court on the ground that Sections 7 8 of the

Family Courts Act, 1984, ousts the jurisdiction of the civil court in

respect of matrimonial dispute filed.

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2 SA237.2016

2. The appellant Ravindra is husband of respondent No. 1 –

Swati and father of respondents No. 2 – Tanmay and respondent No.

3 – Arav. The respondents filed Hindu Marriage Petition No. 100 of

2012 in the court of Civil Judge Senior Division, Aurangabad. The

appellant is resident of Buldhana and the respondents who are

original petitioners, were shown to be residing in N-12, CIDCO,

Aurangabad. The marriage was solemnized in Aurangabad. The

petition was filed for maintenance under the Hindu Adoption and

Maintenance Act, 1956. The learned trial Judge awarded

maintenance of Rs.18,750/- per month to all the respondent-original

petitioners together, from the date of the petition. In the trial Court,

Ravindra – the appellant herein, had not raised any defence of

jurisdiction. He filed Reg. Civil Appeal No. 155 of 2014 challenging

the order of trial Court. The first Appellate Court modified the order

and granted maintenance at the rate of Rs. 5,000/- for each of the

petitioners.

3. Heard Mr Jiwan Patil, learned counsel for the appellant

and Mr M. S. Karad, learned counsel for the respondent. The

substantial question of law framed on 22 nd October, 2018 with my

finding is as follows:-

“Whether the judgment and decree passed by the Civil
Judge Senior Division, Aurangabad, and confirmed by
District Judge, Aurangabad is nullity on account of

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3 SA237.2016

exclusion of jurisdiction in matrimonial matters by Section
7 of the Family Courts Act?”

…… In the affirmative.

4. There is no factual dispute. The petition was filed in the

court of Civil Judge Senior Division as the petitioners were residing in

Cidco and the marriage had taken place at Aurangabad. It is not

disputed that the residence of the original petitioners as well as place

of marriage are within municipal limits of Aurangabad Municipal

Corporation and the Family Court is having jurisdiction over the

entire area of Aurangabad Municipal Corporation.

5. Sections 7 8 of the Family Courts Act read 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;

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4 SA237.2016

(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

(ii) which would have been required to be instituted or taken before or

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5 SA237.2016

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.

6. The Family Courts Act, 1984 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,” as indicated in

the preamble of the Act. A separate forum known as Family Court,

with facilities for expert advice on matrimonial matters from

marriage counsellors, and with emphasis on the conciliatory process

more than adjudicatory process, was set up under this Act.

7. As per S. 7 of the Family Courts Act, the Family Court shall

have jurisdiction of 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 sub-clause (a) to (g). Clause (f) of S. 7

deals with suit or proceeding for maintenance.

8. It is obvious that, in view of the establishment of the Family

Court, the Civil Judge Senior Division, Aurangabad, had no

jurisdiction to conduct the petition for grant of maintenance under

the Hindu Adoptions and Maintenance Act, 1956.

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6 SA237.2016

9. However, the issue is, when no objection was raised to the

jurisdiction in the trial Court but was raised in the Ist IInd appellate

Courts, whether it is curable irregularity and whether the judgment

decree would be binding unless prejudice is shown to the parties. If

the establishment of Family Court and vesting of exclusive

jurisdiction with the Family Court is treated at par with the territorial

jurisdiction, then the decision passed by Civil Judge Sr. Divn., will

not be a nullity. However, if it is subject-wise exclusion of

jurisdiction u/s 8, the decision will be a nullity.

10. Learned counsel Shri. Patil placed reliance on Dr.

Jagmittar Sain Bhagat vs. Dir., Health Services, Haryana and Ors.

reported in AIR 2013 SC 3060, wherein it is laid down that, if the

Court passes a decree having no jurisdiction over the matter, it would

amount to nullity as the matter goes to the roots of the cause. Such

an issue can be raised at any stage of the proceedings. The finding of

a Court or Tribunal becomes irrelevant and unenforceable/

inexecutable once the forum is found to have no jurisdiction.

Similarly, if a Court/Tribunal inherently lacks jurisdiction,

acquiescence of party equally should not be permitted to perpetuate

and perpetrate, defeating the legislative animation. The Court cannot

derive jurisdiction apart from the Statute. In such eventuality the

doctrine of waiver also does not apply.

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7 SA237.2016

11. Section 8 is specific. It lays down that, where a family

court is established in any area, 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. Similarly,

the jurisdiction of the Magistrate court is also ousted by the sub-

clause (b).

12. In Maria Seria Pinto vs. Milton Dias reported in [2000(4)

Mh.L.J. 638] the Division Bench of this Court relying on Full Bench

judgment in Romila Jaidev Shroff vs. Jaidev Rajnikant Shroff reported

in 2000(3) Mh.L.J. 468 (F.B.) held that, Section 20 of the Family

Courts Act has an overriding effect and overrides 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 the said Act. It is further held that, in the view of the Full Bench

after coming into force of the Family Courts Act, 1984 and

establishment of the Family Court for Mumbai Area, a High Court

would completely lose its Jurisdiction by virtue of the provisions of

sections 7 and 8 read with section 20 of the Family Courts Act, 1984

and that, by virtue of clause (c) of sub-section (1) of section 8, all the

matrimonial matters pending before the High Court on the Original

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8 SA237.2016

Side shall stand transferred to the Family Court for hearing and

disposal in accordance with the provisions of the said Act.

13. In Vimalashram Gharkul of Amprapali Utkarsha Sangh,

Nagpur vs. Jyto Banson Joseph reported in [2006(4) Mh.L.J. 692],

it was held that, it is, therefore, evident that after the Family Court

Act came into force, the proceedings in relation to the guardianship

of a person or custody of, or access to, of a minor are required to be

instituted in the Family Court in view of section 7 of the said Act

since it has a jurisdiction to decide these proceedings and also can

exercise jurisdiction exercisable by the District Court and therefore,

by necessary implication the application filed by the non-applicant

under section 25 of the Guardians and Wards Act, 1890, for custody

of minor, is not maintainable.

14. In Dawalsab vs. Khajasab reported in 2009(14) SCC 660,

the maintenance petition u/s 125 was filed in the family court at

Bijapur. The Judge of the Family Court held that, the respondent

was residing at Syndagi where there is a court of Judicial Magistrate

and it will have the jurisdiction. The said judgment was confirmed by

the High Court. While discussing the provisions of Sections 7 8 of

the Family Courts Act, the Apex Court held that, in the instant case, it

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9 SA237.2016

is the Family Court which has jurisdiction to entertain the petition

filed by the appellant since the Family Court at Bijapur had

jurisdiction throughout the district and jurisdiction of the Magistrate

under Chapter IX of Cr.P.C. has been excluded.

15. The specific ouster of jurisdiction of the courts in respect of

area for which the Family court has been established u/s 8 shows

that, the subject-wise jurisdiction of Civil Judge Sr. Divn., has been

ousted and it is not a simple question of territorial jurisdiction.

Therefore, the decisions rendered by the courts having no subject-

wise jurisdiction will be a nullity.

16. In fact, the Civil Judge Senior Division should have been

more careful and should not have entertained the petition and should

have returned it for presentation before the proper court. Whenever

in any city there is a family court, all Civil Judges (Sr. Divn.) should

see whether the cause of action for the matrimonial petitions filed

before them arises within the area for which Family Court has been

established or not. If it is established, the Civil Judges (Sr. Divn.)

should return the plaint and should avoid unnecessary wastage of

time, money and energy of the litigants. As Sec. 8 of the Family

Courts Act has taken away the jurisdiction, the decisions rendered by

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10 SA237.2016

the Civil Judges (Sr. Divn.) and District Courts are nullity. Therefore,

the substantial question of law raised is answered in the affirmative.

The appeal is partly allowed. The judgment and decree passed by ld.

2nd Jt. Civil Judge Sr. Divn., Aurangabad dt. 16.06.2014 and District

Judge-1, Aurangabad dt. 10.12.2015 are set aside.

17. The trial Court is directed to return the plaint to the

respondents for presentation before the Family Court at Aurangabad.

If the respondents presents the petition in the Family Court, the

Judge of the Family Court shall consider the situation and decide the

matter expeditiously. The interim relief granted vide order dt. 22 nd

October, 2018 stands vacated.

18. Learned advocate for the respondent – Mr M. S. Karad

submits that, he will present the plaint in the Family Court at

Aurangabad on 01.12.2018. The appellant shall appear before the

Family Court on 01.12.2018, without expecting separate service of

notice.

[ A. M. DHAVALE ]
JUDGE

Punde

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