Abdul Jaleel Vs. T.A. Shahida  Insc 222 (10 April 2003)
S.B. Sinha & Ar. Lakshmanan.
out of SLP (Civil) No.8996 of 2001] S.B. SINHA, J:
the Family Court has jurisdiction to adjudicate upon any question relating to
the properties of divorced parties arises for consideration in this appeal. The
said question arises out of a judgment and order dated 20.03.2001 passed by a
Division Bench of the Kerala High Court dismissing an appeal from an order
passed by the Family Court, Ernakulam, dated 22.07.1998 in O.P. No.343 of 1996.
parties to this appeal were married on 03.01.1988. A female child was born out
their wedlock on 11.10.1988. Allegedly, after the birth of the second child,
owing to deterioration in the health of the respondent herein, the relationship
of the parties became strained. The respondent contended that at the time of
marriage, a large amount in cash as also gold ornaments were given. From the
cash amount the appellant herein purchased a property described in Schedule 'A'
of the petition on 01.02.1988. The balance amount was kept by the appellant. He
allegedly further sold the gold ornaments of the respondent and out of the sale
proceeds he purchased the property described in Schedule 'B' of the petition.
respect of properties an agreement marked Exhibit A1 was executed by the
parties, in terms whereof it was agreed that the properties purchased from the
aforesaid amount will be transferred in the name of the respondent by the
appellant. The appellant herein pronounced Talaq on 01.11.1995 after his
relationship with the respondent became strained. In terms of the said
agreement dated 17.09.1994, the respondent filed a suit marked O.S. No.85 of
1995 in the Family Court on 08.12.1995. The appellant in his written statement
alleged that the said agreement was signed by him under threat and coercion and
further contended that several documents purported to have been executed by him
in support thereof were also obtained by applying force.
the parties examined themselves as also proved various documents in the said
suit before the Family Court.
Family Court by a judgment and order dated 22.07.1998 decreed the suit in favour
of the respondent herein upon arriving at a finding that she was the absolute
owner of the Schedule 'A' property as also 23/100 shares in the Schedule 'B'
thereby and dissatisfied therewith, the appellant preferred an appeal before
the High Court which was marked as MFA No.196 of 1999. By reason of the
impugned judgment dated 20.03.2001, the said appeal has been dismissed.
Beeran, learned counsel appearing on behalf of the appellant, would submit that
having regard to the provisions contained in Section 7 of the Family Courts
Act, 1984, the Family Court had no jurisdiction to decide a dispute as regards
properties claimed by a divorced wife. The learned counsel would urge that the
jurisdiction exercisable by any Family Court being between the parties to a
marriage which would mean parties to a subsisting marriage. In support of the
said contention strong reliance has been placed on a judgment of a Division
Bench of the Allahabad High Court in Amjum Hasan Siddiqui vs. Smt.Salma B. [AIR
1992 (Allahabad) 322] and Ponnavolu Sasidar vs. Sub-Registrar, Hayatnagar and
Others [AIR 1992 (A.P.) 198].
T.L.V. Iyer, learned Senior Counsel appearing on behalf of the respondent, on
the other hand, would contend that the matter is covered by an inter-parties
judgment passed by a Division Bench of the Kerala High Court which is since
reported in [1997 (1) KLT 734]. As the appellant herein did not question the
correctness of the said judgment, he cannot be permitted to turn round and now
challenge the jurisdiction the Family Court.
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 Objects 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
spouses or either of them. Section 7 of the Act provides for the jurisdiction
of the Family Court in respect of suits and proceedings as referred to in the
Explanation appended thereto. Explanation (c) appended to Section 7 refers to a
suit or proceeding between the parties to a marriage with respect to the
property of the parties or of either of them.
fact of the matter, as noticed hereinbefore, clearly shows that the dispute
between the parties to the marriage arose out of the properties claimed by one
spouse against the other. The respondent herein made a categorical statement to
the effect that the properties were purchased out the amount paid in cash or by
way of ornaments and the source of consideration for purchasing the properties
described in Schedules 'A' and 'B' of the suit having been borne out of the
same, the appellant herein was merely a trustee in relation thereto and could
not have claimed any independent interest thereupon. It is also apparent that
whereas the agreement marked as Exhibit A1 was executed on 17.09.1994, the
appellant pronounced Talaq on 01.11.1995. The wordings 'disputes relating to
marriage and family affairs and for matters connected therewith' in the view of
this Court must be given a broad construction. The Statement of Objects and
Reasons, as referred to hereinbefore, would clearly go to show that the
jurisdiction of the Family Court extends, inter alia, in relation to properties
of spouses or of either of them which would clearly mean that the properties
claimed by the parties thereto as a spouse of other; irrespective of the claim
whether property is claimed during the subsistence of a marriage or otherwise.
submission of the learned counsel to the effect that this Court should read the
words "a suit or proceeding between the parties to a marriage" as
parties to a subsisting marriage, in our considered view would lead to
miscarriage of justice.
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. The said Act was enacted despite the
fact that Order 32A of the Code of Civil Procedure was inserted by reason of
the Code of Civil Procedure (Amendment) Act, 1976, which could not bring about
any desired result.
now a well-settled principle of law that the jurisdiction of a court created
specially for resolution of disputes of certain kinds should be construed
liberally. The restricted meaning if ascribed to Explanation (c) appended to
Section 7 of the Act, in our opinion, would frustrate the object wherefor the
Family Courts were set up.
Hasan Siddiqui's case (supra) an application was filed in terms of Section 3 of
the Muslim Women (Protection of Rights on Divorce) Act, 1986. The question
before the Allahabad High Court arose as to whether a Family Court could deal
with such a dispute. It was held that no application could lie before the
Family Court as the claim under Section 3 of the 1986 Act would neither be a suit
nor a proceeding within the meaning of Section 7 of the Family Courts Act
inasmuch as such an application could only be moved before the First Class
Magistrate having requisite jurisdiction as provided for in the Code of
Criminal Procedure. The said decision, in our opinion, cannot be said to have
any application whatsoever in the instant case.
P. Jayalakshmi and Another vs. V. Revichandran and Another [AIR 1992 AP 190],
the Andhra Pradesh High Court was dealing with a case under Section 125 of the
Code of Criminal Procedure. It was held that although the matrimonial
proceeding was moved before the Family Court, the same could not have provided
for a legal bar for the wife and the minor child for instituting a proceeding
under Section 125 of the Code of Criminal Prcoedure at Tirupathi where they
were residing; as both the rights are separate.
indicated hereinbefore, Balakrishnan, J. (as His Lordship then was) speaking
for a Division Bench in a matter arising out of a preliminary issue on the question
of jurisdiction held that the dispute over properties between parties to a
marriage cannot be confined to the parties to a subsisting marriage. We agree
with the said view. The said decision being inter- parties and having attained
finality would operate as res judicata.
further contention of the learned counsel appearing on behalf of the appellant
is that as the respondent had already filed an application under Section 3 of
the Muslim Women (Protection of Rights on Divorce) Act, 1986, wherein an amount
of Rs.1,33,200/- was awarded in her favour, the impugned proceeding was not
two proceedings are absolutely separate and distinct. The impugned judgment
does not show that the said question was even argued before the High Court. As
indicated hereinbefore, the factual issue involved in this appeal revolved
round as to whether Exhibit A1 was obtained by applying force or undue
influence upon the appellant. The said contention has been negatived by both
the Family Court as also the High Court.
therefore, find no merit in this appeal which is dismissed with costs.
Counsel's fee assessed at Rs.5,000/- (Rupees Five thousand only).