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IN THE HIGH COURT OF BOMBAY
S. P. Bharucha B. N. Srikrishna, JJ.
Kanak Vinod Mehta ..... Plaintiff.
Versus
Vinod Dulerai Mehta ..... Defendant.
Suit No. 199 of 1989, decided on 26/27-2-1991.
Advocates appeared :
S.D. Parekh with J.D. Dwarkadas, G.S. Patel, Anand Bhat and Ms. D. Rohani i/b Wadia Ghandy Co., for the plaintiff.
S.R. Simhan with S.K. Parikh i/b Kantilal Parikh Co., for the defendant.
The Guardians and Wards Act, 1890 defines a District Court in Section 4 (4) thus:
"District Court has the meaning assigned to that expression in the Code of Civil Procedure and includes a High Court in the exercise of its ordinary original civil jurisdiction."
The Special Marriage Act, 1954, (Section 2(e» defines the District Court to mean "in any area for which there is a City Civil Court, that Court, and in any other area, the principal Civil Court of original jurisdiction ... ", The Hindu Marriage Act, 1955 (Section 3(b)) defines a District Court to mean "in any area for which there is a city Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction ... ". The General Clauses Act, 1897, provides the definition of a District Judge (Section 2 (17)) and says that it means "the Judge of a Principal Civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction." What is important to note is that the said Act does not define a District Court in the manner indicated above or at all. The expression District Court does not in itself connote a High Court. Where the expression has to be read as including the High Court, the concerned statute has to so provide.
Emphasis was laid on behalf of the defendant upon Section 2(4) of the Code which defines "District" to mean "the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called the "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court, "it was submitted that, therefore, when the word Court was appended to the word District as defined in the Code, the High Court stood defined as a District Court and, therefore fell within the meaning of that expression in the said Act. It is not possible to accept this submission because regard must be had to the terms of Section 3 of the Code which says, "For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court." It is clear that a distinction is drawn by the Code between a High Court and a District Court and the expressions are used therein in different contexts.
Section 7 of the Bombay Civil Courts Act, 1869 states that the District Court shall be the principal Court of original civil jurisdiction in the district within the meaning of the Code. This is the Court which is relevant for the purpose of Section (2)4 of the Code. Though the area within which the High Court exercises original jurisdiction is a district, a High Court is not a District Court for it exercises jurisdiction, an its appellate side, not only over that district but over the entire State.
The established rule is that a "statute should not be construed as taking away the jurisdiction of the courts in the absence of clear and unambiguous language to that effect." This is a principle enshrined in the judgments of Indian and English Courts. The principle applies with even greater vigor when the statute purports to take away the jurisdiction of a superior Court such as the High Court. We do not find in the provisions of the said Act words that clearly or unambiguously indicate the intention of Parliament to oust jurisdiction of the High Court in regard to the categories of suits and proceedings mentioned in the Explanation to sub-Section (1) of Section 7. The words that are used apply in clear and unambiguous terms only to the jurisdiction of District Courts and subordinate Civil Courts.
"Whether, on the plaint as it stands, it is the Family Court which has the jurisdiction in respect of this suit by virtue of the Family Courts Act and therefore, on the establishment of the Family Court this Court has ceased to have jurisdiction in respect of this suit by virtue of clause (a) of section 8 of the Family Courts Act and the suit stands transferred to such Family Court by virtue of clause (c) of section 8 of the Family Courts Act?"
2. The plaintiff has filed the suit against the defendant, her husband, and has sought (a) a declaration that she is entitled to an undivided right, title and interest in the matrimonial home and to reside therein; (b) a declaration that she is entitled to maintenance at the rate of Rs. 17,000/- per month for herself and the issue of the marriage, a son, over and above certain other facilities; (c) an injunction restraining the defendant from disposing of the matrimonial home, inducting any third person therein and interfering with her right to the use and occupation thereof and (d) an order and decree for maintenance as aforesaid. The plaint avers that the marriage between the plaintiff and the defendant was performed according to Hindu rites and a son was born, who is a minor. The conduct of the defendant is set out and, upon this basis, the aforementioned reliefs have been prayed for.
3. It was urged on behalf of the defendant before the learned Single Judge (Cazi, J.) in (Kanak Vinod Mehta v. Vinod Dulerai Mehta)1, 1991 (1) Bom.C. R. 69 that this Court has no jurisdiction to entertain and try the suit and that it was only the Family Court established under the said Act which has such jurisdiction. Thereupon the preliminary issue as aforestated was framed and tried. The learned Judge was inclined to follow the Full Bench judgement of the Madras High Court in (Mary Thomas v. K.E. Thomas )2, A.I.R. 1990 Mad. 100, which held that the High Court's jurisdiction was not taken away by the said Act but he found that another learned Single Judge of this Court (Chaudhari, J.) in (Kamal V. M. Allaudin v. Raja Shaikh )3, 1990(2) Bom.C.R. 335, had taken a contrary view, following the Division Bench judgment of the Madras High Court in (Patrick Martin v. Regine Martin)4, A.I.R. 1989 Mad. 231. He therefore, ordered that the matter be placed before the Hon'ble the Chief Justice for reference to a Division Bench to decide the preliminary issue.
4. We may at once note that the Division Bench judgment which was followed by Chaudhari, J., namely that in Patrick Martin's case, has been over-ruled by the Full Bench judgment of that Court in Mary Thomas' case.
5. The relevant provisions of the said Act are these. Its preamble reads thus:---"An Act 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". The said Act extends to the whole of India and comes into force on such date as the Central Government might, by notification in the Official Gazette, appoint, power being given to appoint different dates for different States. Under section 2(e) all words and expressions used but not defined in the said Act and defined in the Code of Civil Procedure, 1908, have the meaning respectively assigned to them in the Code. For the purposes of exercising the jurisdiction and powers conferred on a Family Court by the said Act, the State Government has power under section 3 to establish for every area in the State comprising a city or town whose population exceeds one million, a Family Court and it might establish Family Courts for such other areas in the State
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