P. SRIHARI Vs. P. SUKUNDA

JUDGEMENT

(1.) This revision under Art. 227 of the Constitution of India is directed against the entertainment of suit in O.S. No. 186 of 1998 on the file of the Family Court, Hyderabad, on the premise that the said Court had no jurisdiction to try the suit and has been wrongly entertained, as the Family Courts Act, 1984 (hereinafter referred to as 'the Act') has got no application.

(2.) Mr. Y. Vasudeva Rao, the learned Counsel for the petitioner, submits that the said suit has been filed by the sisters against the brothers and others claiming partition of the property left behind by their father. A petition has been filed under Order 7 Rules 10 and 10-A read with Sec. 151 of the Code of Civil Procedure by the petitioner herein in the Family Court to return the plaint for presentation in the proper Court, but the same has been dismissed by order dated 6.5.1999 by the Judge, Family Court, Hyderabad in I.A. No. 434 of 1999 in O.S. No. 186 of 1998.

(3.) Ms. Anitha Ahuja, the learned Counsel appearing for the respondents, admits that it is not a marriage dispute. But, she submits that as there is a dispute between the sister and brother regarding property, suit was filed for partition and since the plaintiffs are ladies and as the Act has been enacted for the benefit of the ladies, the suit is maintainable before the Family Court. She submits that since the word 'family' is not defined under the Act, the meaning in common parlance has to be taken and if so taken, the suit is maintainable. She also submits that because the Act is beneficent in nature, every dispute arising in the family, and not necessarily between the wife and husband, has to be entertained and interpretation has to be liberal in that direction. She has cited a judgment rendered by P. Venkatarama Reddy, J. in Smt. Izzat Sultana Vs. Sabir Bin Yasrab, 1995(3) ALT 430 . No doubt, in the said case, the order directing presentation of the plaint in the Family Court was questioned and the same was not found favour with the learned Single Judge, who directed the civil Court to number the suit and dispose of the same on merits. In the said case, the suit was filed by the wife and children against husband for injunction on the basis of the family arrangement made earlier. For the reasons mentioned infra, we do not agree with the said Judgment. In fact, the decision of another Division Bench of this Court in Mrs. Mariamma Ninan Vs. Mr. K.K. Ninan, 1997(2) ALT 268 arising under the Act and concerning the same provision i.e., Sec. 7 of the Act is squarely applicable to the facts of this case. In the said case, a dispute arose between wife and husband and relief sought for was for partition and separate possession on the ground that her Stridhana money was used for construction of the house which was kept in the name of the husband. When the plaint was presented in the Family Court, the same was returned to be presented to the Civil Court aggrieved by which, CRP was filed in this Court. A Division Bench of this Court in the case mentioned supra set aside the order of the Family Court holding that as the dispute was inter se husband and wife and related to property comes within the ambit of clause (c) of Explanation to Sec. 7(1) of the Act and that only Family Court had jurisdiction and not the Civil Court. In R. Durga Prasad Vs. Union of India, 1998(1) ALT 652 : 1998(2) RCR(Civil) 72 (A.P.) , the question for consideration was the constitutional validity of clauses (a) and (b) of Explanation to Sec. 7(1) of the Act relating to the jurisdiction of the Family Court for trying the suits between the parties to a marriage. The proposition propounded was that the above statutory provisions are applicable only for admitted marriages and when there is dispute with regard to their marital status, the suit is not maintainable by the Family Court and that a common law Court has to be approached firstly seeking a declaration with regard to marital status and then for consequential reliefs.