REENA TULI Vs. NAVEEN TULI

JUDGEMENT

(1.) This first appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the HMA) arises out of the judgment and decree dated 12.1.2018 passed by First Additional Principal Judge, Family Court, Jabalpur in Hindu Marriage Case No. 336-A/2013 by which the suit filed by the appellant/wife seeking restitution of conjugal right has been dismissed as not maintainable in view of the judgment of Division Bench of Chhattisgarh High Court in the case of Santosh Kumar Pandey Versus Smt. Ananya Pandey reported in AIR 2013 Chh 95.

(2.) On perusal of the impugned judgment, it reveal that the factum of performance of marriage pleaded by the appellant was denied in the written statement by defendant, however, observed that on having a denial of performance of marriage, petition under Section 9 of the HMA is not maintainable as per the judgment in the case of Santosh Kumar Pandey (supra). Therefore, the Family Court allowing the application filed by the respondent on 31.7.2014, dismissed the suit for restitution of conjugal right. While passing the said order, the Court has also referred the provision of Section 10(3) of the Family Courts Act whereby the Family Court is not prevented from laying down its own procedure.

(3.) Learned counsel appearing for the appellant contends that the jurisdiction of the Civil Court is conferred to the Family Court in respect of the suits and proceedings of the nature referred to in the Explanation of Section 7(1) of the Family Courts Act and the said Court would be deemed to be the District Court or subordinate Civil Court to which jurisdiction of the Family Court is extended. The Explanation specifies that suits and proceedings between the parties to a marriage may be brought; for a decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage; for a declaration as to the validity of a marriage or as to the matrimonial status of any person; with respect to the property of the parties or of either of them; for an order or injunction in circumstances arising out of a marital relationship; for a declaration as to the legitimacy of any person; for maintenance or in relation to the guardianship of the person or the custody of, or access to, any minor. As per Section 8 of the Family Courts Act, after establishment of the Family Court, the jurisdiction of the District Court or subordinate Civil Court in respect of any suit or proceeding of the nature referred to in the Explanation of Section 7(1), has been excluded and given to the Family Court to the area to which it extends.