Padmja Sharma Vs Ratan Lal and Another

Mohini Kapur, J.@mdashThis writ petition is directed against the order dated 9th November, 1992 passed by the learned Judge, Family Court Jaipur rejecting petitioner''s application dated 24th September, 1992 moved under Order 14 Rule 5 C.P.C. in a divorce petition filed by the petitioner u/s 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ''1955 Act''). For the disposal of this writ petition, it is not necessary to go into the grounds on which the divorce petition has been moved.

2. The petitioner in the case moved an application under Order 14 Rule 5 C.P C. with a prayer that u/s 7(1)(c) of the Family Courts'' Act 1984 an issue be framed with respect to the property of the parties so that there may be a decision for the return of this property to the petitioner. However, this prayer was refused by order dated 9th June, 1992 of the Judge Family Court, Ajmer, where the petition was pending at that time. She preferred an appeal before this Court and the same was dismissed on 5th August, 1992 holding that the impugned order was an interlocutory order and the appeal was not maintainable. However, an observation was made that the petitioner should move a fresh application to the Court below stressing upon the import of Section 7(c) of the Family Courts Act and requesting the Court about its importance in the suit itself. Thereafter, the case was transferred from the Family Court, Ajmer to Family Court, Jaipur and the petitioner moved a fresh petition of framing of issue in respect of dowry articles with reference to the order of the Court dated 5th August, 1992. This application has been refused by the learned Judge, Family Court, Jaipur by order dated 9th November, 1992, against which this writ petition has been filed. The grounds for challenge are that the Judge, Family Court has failed to exercise the jurisdiction vested in him u/s 7(1)(c) of the Fimily Courts Act and there is a gross error of law apparent on the face of record.

3. The order of the learned Jugde, Family Court which has been challenged in this petition may be looked into. It refers to Section 27 of the 1955 Act, which provides for disposal of property by the Court as it deems just and proper with respect to any property presented at or about the time of marriage, which may belong jointly to both the husband and wife. It has further been observed that in proceedings under the Hindu Marriage Act, orders for disposal of the property could be passed only in respect of property belonging jointly to both the husband and wife which is presented at or about the time of marriage and not to the Stridhan or the dowry goods which belong to the bride alone hence, he refused to frame an issue as desired by the petitioner.

Learned Counsel for the non-petitioner has raised an objection about the maintainability of the writ petition. My attention has been firstly invited to two orders passed by two Division Benches of this Court in two different appeals filed by the petitioners. D,B. Civil Misc. Appeal No. 426/1992 Smt. Padmja Sharma v. Ratan Lal Sharma, was dismissed by a Division Bench on 20th May, 1993 wherein it was observed that the impugned order being of interlocutory nature no appeal was maintainable u/s 19 of the Family Courts Act. This appeal was against the order dated 9th June, 1992 of the Family Court, Ajmer by which the Court refused to accept an application under Order 14 Rule 5 C.P.C. for framing an issue in the divorce petition. The another appeal was D.B. Civil Misc Appeal No. 436/1992 Smt. Padmja Sharma v. Ratan Lal Sharma and this appears to be against the order passed on the application for grant of maintenance to minor children. However, it is difficult to say what was argued at the time of admission of the case. While dismissing the same, on 5th August, 1992 the Court has made observations that the appeal is against the judgment rejecting application for framing of issue partaining to the provisions u/s 7(c) of the Family Courts Act. The appeal was dismissed as being against an interlocutory order but the petitioner was advised to move against stressing the import of Section 7(c) as has been seen above. It is contended that the observation in this order dated 5th August, 1992 are out, of context and the petitioner has obtained these observations even though her appeal against the order refusing to frame an issue about the dowry articles had been dismissed. It is further pointed out that in order to surpass the law and the earlier order passed in different proceedings relating to the disposal of the property, this writ petition has been filed when actually a writ petition does not lie as the order of the Trial Court is an appealable at the time the final decision is given. Reliance has been placed on Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, in which the character and scoped of writ of certiorari has been dealt with and one of the characteristic has been said to be that the Court issuing a writ of certiorari acts as a supervisory and not appellate jurisdiction. Thus, the Court will not review the findings in of fact reached by the inferior Courts. Further, it was stated that the writ of certiorari could be issued for correcting the error of law but such an error must be mainfest on the face of the record. In K.K. Shrivastava and Others Vs. Bhupendra Kumar Jain and Others, it was held that where there is an appropriate or equally afficacious remedy, the Court should keep its hands off. The matter related to the election of members of the Bar Council of Madhya Pradesh and when there was specific provision for challenging the election, the Supreme Court set aside the order of the High Court entertaining a writ petition. In India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and Another, it was held that High Court''s power of superintendence under Article 227 of the Constitution of India could not be invoked for purposes of upsetting conclusions of facts, however, erroneous those might be. This power is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.

4. In my view, interlocutory orders cannot be the subject matter of an appeal u/s 19 of the Family Courts Act but these orders can be challenged alongwith final order in the case and merely because they cannot be challenged at the interlocutory stage it would not mean that a writ petition should be entertained for quashing the order of the subordinate Court. However, even if it may be said that this Court should exercise its powers under Article 227 of the Constitution of India for purposes of correcting an error apparent on the face of record, it may be looked into whether there is error apparent on the face of the record which requires correction by a writ of certiorari.

5. Here, again it may be stated that the finding of the learned Judge, Family Court that u/s 27 of the Act, the scope of enquiry as regards the articles is limited only to those articles which jointly belonged to the husband and wife and were presented at or about the marriage is not apparently erroneous as the same has been passed on a number of decisions of this Court as well as other High Courts. However, for purposes of providing guidance to the Family Courts it is considered proper to discuss this matter further.

6. The learned Counsel for the petitioner has referred to Section 7(1)(c) of the Family Courts Act which reads as under :--

"7. Jurisdiction (1) Subject to the other provisions of this Act, a Family Court shall try;

(a) ......

(b) ......

(c) a suit or proceedings between the parties to a marriage with respect to the property of the parties or of either of them;"

The jurisdiction of the Family Court has been described as in respect of suits and proceedings referred to in the explanation and by virtue of Sub-clause (c) all the applications to suit between the parties to a marriage with respect to the property of the parties or either of them becomes a matter which falls within the jurisdiction of the Family Court. So far there is no dispute. It can be accepted that the jurisdiction of the Civil Court is ousted and such disputes are to be tried by the Family Court. The question which arises is can such a dispute be determined in the proceedings u/s 13 of the 1955 Act. For this purpose, the learned Counsel for the petitioner has relied upon Gowri Vs. Satish, ; wherein referring to Section 27 of the 1955 Act and Section 7 of the Family Courts Act, a Division Bench of Karnataka High Court has held that the jurisdiction of the Family Court is extended in respect of the suits and proceedings which are referred to in Section 7 of the Family Courts Act. The occasion to exercise such jurisdiction may arise under any law for the time being in force and the jurisdiction u/s 7 is not merely with reference to the properties of the parties to the marriage but also with respect to the properties of either of them. In Ajay Jawaharlal Kakaria Vs. Sandhya Ajay Kakaria, the husband has filed a petition for annulment of marriage. The wife apart from contesting the prayer, made a claim for maintenance, return of Stridhan property and provisions of adequate residence. The Family Court did not decide the question of return of Stridhan and prayer for adequate residence, the Bombay High Court returned the matter to the Trial Court for deciding the same after giving opportunity to both the parties to adduce evidence in that behalf and then decide the matter in accordance with law. Another case cited is Venkatappa and Another Vs. The Chairman, Family Courts and Others, wherein it has been held that the Family Court has exclusive jurisdiction to try the dispute relating to the property between the husband and wife. In this case, wife had filed a suit for restraining her husband from interfering with the peaceful possession of the disputed property. It was held a third party has nothing to do between the husband and wife.

7. On the other hand, the learned Counsel for the respondent has placed reliance on P. Maharajan Alias Nadarajan v. Chakalayil Kunju Sarojini I (1988) DMC 24 wherein the Orissa High Court has held that Section 27 of the 1955 Act is not applicable to the Stridhan property of the wife as this Section merely enables to deal with jointly owned properties. In Suraj Parkash Vs. Mohinder Pal Sharma, referring to Section 27 of the 1955 Act it was held that the property exclusively owned by the wife did not come within the ambit of Section 27 of the 1955 Act which concerned only with the property which is presented at or about the time of marriage and belongs jointly to the couple. The scope of Section 27 of the 1955 Act came up for consideration before this Court in Anil Kumar v. Smt. Jyoti 1987 RLW 262; and referring to the decisions of the several High Courts it was held that u/s 27 of the 1955 Act, a decree with regard to the property exclusively belonging to either to the husband or the wife cannot be passed. The Madhya Pradesh High Court has also taken a view that Section 27 of the 1955 Act contemplates application in respect of the property presented at or about the time of marriage to both the husband and wife in Leelan Bai v. Nanik Chand I (1987) DMC 407.

8 A review of the decisions cited above, would go to show that only in the Karnataka case (supra) the provisions of Section 7 of the Family Courts Act and Section 27 of the 1955 Act have been considered while the other rullings are exculsively based on Section 27 and Section 13 of the 1955 Act, and Section 7 of the Family Courts Act has not been taken a note of. It is to be seen whether the two provisions if read together confer rights on the Family Courts to decide the question about the disposal of the property belonging exclusively to one party in an application u/s 13 of the 1955 Act.

9. In Karnataka case (supra) it has been held that Section 27 of the 1955 Act is confined to gifts made at or at about the time of marriage and which may belong jointly to both husband and wife. It was further held that the inherent power cannot include a power to grant relief to exclusive property similar to the one conferred u/s 27 of the 1955 Act relating to property jointly belonging to both the spouses. Referring to Section 7 of the Family Courts Act, it has been held that all proceedings of the nature referred to u/s 7 of the Family Courts Act, which uses both terms ''suit'' or "proceeding" and reading it with the preamble of the Family Courts Act, the intention of the legislature is to see that the litigation between the parties is settled once for all avoiding the usual expenditure involved in the litigation hence, the jurisdiction can be exercised either in a suit or proceeding. Reference has also been made to the word ''proceeding'' which means a prescribed course of action for enforcing or protecting a legal right as also including the necessary steps to be taken whether procedural or substantive. The expression also means forums in which relief is sought before Courts of law or before other authorities determining rights and liabilities which actions are brought and defended and the manner of conducting them and mode of deciding them.

10. The Family Courts Act was enacted in the year 1984 with a view to promote conciliation in and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. This Act provides for establishment of Family Courts and also for association with social welfare agencies and counsellors. Section 7 lays down as to what type of disputes shall be decided by the Family Courts. While dealing with the procedure emphasis has been laid on efforts to make settlements and take assistance of medical and social welfare experts. By enacting Sections 7 and 8 of the Family Courts Act, certain disputes have been made subject to the jurisdiction of the Family Courts and the jurisdiction of the Civil Courts has been excluded. Even the pending cases of the nature referred to in Section 7 are to be transferred to the Family Courts. Under what law a suit or proceeding can be instituted is the subject matter of Civil Code and other statutes and not of the Family Courts Act. It may be said that applications can be moved under the Hindu Marriage Act, under the Guardianship and Wards Act, under Maintenance and Adoption Act, u/s 125 Cr. P.C. or even Special Marriage Act or law relating to marriages in other communities. Merely because, there is a description of different nature of suits, or proceedings for which jurisdiction has been conferred by Section 7 of the Family Courts Act, it does not mean that such a relief can be included in a petition u/s 13 of the 1955 Act, unless there is specific provision for moving a petition for that relief, under that Act. Section 27 of the 1955 Act specifically restricts the nature of dispute which can be raised under the Act. Section 7 of the Family Courts Act confers jurisdiction on the Family Courts for purposes of entertaining certain nature of disputes but other Acts provide for moving applications for the settling disputes. Unless it is provided under any law that an application for purposes of any relief can be moved then only the relief can be included or proceedings can be started otherwise the alternative remedy is to file a regular suit. As far as the provisions of 1955 Act are concerned, Section 27 of this Act is very clear as it relates to passing an order in respect of any property presented at or about the time of marriage which may jointly belong to both the husband and wife. This matter can be decided in any proceedings under the 1955Act and the 1955 Act does not provide for return of dowry which belongs exclusively to the wife. As the petitioner wants to include the relief of retain of dowry in a proceeding under the 1955 Act, the same cannot be said to be permissible due to the limited scope of Section 27 of the Act and it is for the petitioner to decide whether any other enactment provides for taking proceedings for the return of dowry or the only right available to her would be to file a suit. Whatever may be nature of the proceedings, undoubtedly it will be tried by the Family Court but it cannot be decided alongwith any petition under tbe Hindu Marriage Act. Section 7 of the Family Courts Act does not confer a right for getting all disputes decided in proceedings u/s 13 of the 1955 Act. Section 7 only confers jurisdiction on the Family Courts specifying the nature of disputes which are triable by the Family Courts. For reasons given above, I respectfully disagree with the view taken by the Karnataka High Court.

11. In conclusion, I am of the view that the writ petition of the petitioner is not maintainable and even if it can be entertained then it can be said that the Family Court has reasons for not framing issue about the return of dowry articles and as seen above, this dispute about return of dowry articles cannot be decided in a proceeding under the Hindu Marriage Act. With these observations, this writ petition is dismissed.