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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, V.G. Bisht, JJ.
Nayana M Ramani - Appellant
Versus
Fizzah Navnitlal Shah - Respondent
Family Court Appeal No. 179 of 2019; Cross Objection (Stamp) No. 30564 of 2019
Decided On : 17-03-2021
LOCUS STANDI : null - NON-JOINDER OF NECESSARY PARTY : null - LIMITATION : null - ORDER 2 RULE 2 OF THE CODE : null
Fact of the Case:
The appellant, a married daughter, filed a Family Court petition seeking a declaration that the marriage between her father and the respondent is null and void. The respondent raised objections to the jurisdiction of the Family Court, non-joinder of necessary party, and limitation of the petition. The Family Court rejected the objections and dismissed the petition under Order 2 Rule 2 of the Code.
Finding of the Court:
The court found that the appellant had locus standi to challenge the validity of the respondent's marriage to her father under Section 7 of the Family Courts Act. The court also held that there was no necessity to join the ex-husband of the respondent as a necessary party in the proceedings. Additionally, the court determined that the petition was filed within the time limit after the discovery of relevant facts and documents, and thus was not barred by limitation. The court further held that the provisions of Order 2 Rule 2 of the Code were not applicable to the case.
Issues: The issues involved in the case were the locus standi of the appellant to challenge the validity of the respondent's marriage, non-joinder of necessary party, limitation of the petition, and the applicability of Order 2 Rule 2 of the Code.
Ratio Decidendi: The court's decision was based on the interpretation of Section 7 of the Family Courts Act, which allowed the appellant to challenge the validity of the marriage. The court also considered the provisions of Order 1 Rule 9 of the Code in relation to non-joinder of necessary party and the determination of limitation as a mixed question of fact and law. The court's decision on the applicability of Order 2 Rule 2 of the Code was based on the principle of preventing multiplicity of suits and the test of whether the claim in the subsequent suit could have been made in the earlier suit.
Final Decision: The court allowed the appeal, set aside the impugned order, dismissed the cross objection, held the Family Court petition maintainable, restored it for trial on merits, directed the Family Court to decide the petition expeditiously, and rejected the application for stay of the operation of the order.
Key Points: - The appellant, a married daughter, was held to have locus standi to challenge the validity of her father’s marriage to the respondent under Section 7(1) of the Family Courts Act, particularly Explanation (b) (!) (!) (!) (!) (!) . - The judgment held that Order 2 Rule 2 CPC is not applicable to bar the Family Court petition because the relief sought (declaration as to the validity of the marriage and matrimonial status) falls under Section 7(b) and cannot be adjudicated in a Civil Court due to the overriding exclusive jurisdiction of the Family Court (!) (!) (!) (!) . - The Court interpreted Section 7(1) and its Explanation (b) to support the rationale that not only parties to the marriage but interested persons/beneficiaries related to the spouses may challenge the validity of a marriage, aligning with the Objects and Reasons of the Act and subsequent precedents (Balram Yadav; Syamaladevi Devi) (!) (!) (!) (!) (!) (!) . - The Full Bench cited Balram Yadav and emphasized the overriding effect of the Act (Section 20) on other laws, and that High Courts/ Civil Courts lose jurisdiction over matters within Family Court’s purview when exercising ordinary original jurisdiction in such matters (!) (!) (!) . - The Court directed that the Family Court petition be restored and decided on merits expeditiously, and rejected stay of operation of the order (!) (!) (!) (!) . - Non-joinder of Mansoor Hatimbhai Chherwala was not fatal to maintainability; the petitioner need not implead him as a necessary party for the relief sought, given the nature of evidence required for Fatimid law divorces and the scope of relief (!) (!) (!) (!) .
JUDGMENT
V. G. Bisht, J. - This appeal arises from the common order dated 15th July 2019 on Exh. 1 and Exh. 11 passed by the Judge, Family Court No.2, Mumbai, whereby the learned Judge dismissed Family Court Petition No.B-62 of 2016 under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code").
1A The respondent also assails above said order by way of cross-objection in as much as grounds for rejection of said Family Court Petition viz. locus, limitation and non-joinder of necessary party were rejected by the learned Judge of the Family Court.
2. Facts which lie in narrow compass required for disposal of this appeal can be stated as follows :
(a) The appellant herein is a married daughter of late Mr.Navnitlal R. Shah (for short the appellant's father) with whom the respondent alleges to have got married on 24th July 2003 after the demise of appellant's mother viz. Hiralaxmi Shah in February 2003. The marriage between the appellant/petitioner's father and the respondent was solemnized before the Marriage Officer, Mumbai.
(b) The appellant's father expired on 30th June 2015 leaving behind three married daughters and one married son. The appellant's father was a Jain by religion and the respondent was a Muslim belonging to Dawoodi Bohra Section of the said religion, at the time of the alleged marriage.
(c) According to the appellant, her father was an extremely successful businessman who built the business of "Ashapura Group" comprising of several Companies. He owned various assets and properties and was till some years ago a Director in many of the Companies in the Ashapura Group. The appellant alleges that the respondent was already married to Mr.Mansoor Hatimbhai Chherwala but was not divorced, which fact she deliberately concealed and suppressed from the appellant's father. She falsely portrayed herself as a divorcee but was not a divorcee at all. This fact came to be unearthed and came to the knowledge of the appellant/petitioner recently when she happened to come across copies of the alleged divorce documents while going through the personal files of her father and after verifying the authenticity of those doubtful documents. There is no issue to the appellant's father and the respondent out of the alleged wedlock.
(d) Alleging further, the appellant contends that the respondent took undue advantage of the mental ailments, infirmities and unsoundness of mind of her father, which she was very well aware of, got married to him and then exercised and applied undue influence, coercion and duress upon him with the intention and motive of siphoning his entire properties. She even got executed various documents including his Will and several Gift Deeds of various valuable immovable properties and deprived the true legal heirs of their rights. The respondent also compelled her father to transfer a huge quantity of shares of Ashapura Group of Industries to her name and also forcibly took away custody of the jewellery "Stridhan" of her mother after her death.
3. In the above factual backdrop, the appellant filed the said Family Court petition seeking declaration that the marriage allegedly solemnized between her father and the respondent on 24th July 2003 is null and void and also the status of the respondent as on today continued to be the wife of the said Mr.Mansoor Hatimbhai Chherwala under the provisions of Section 7 (1) Explanation (b)and (d) of the Family Courts Act ("the Act" for short).
4. The respondent resisted the petition by filing her written statement. At the very outset, the respondent raised objection as to the jurisdiction of the Family Court by contending that the Court does not have the jurisdiction to try and entertain the petition and therefore deserves to be dismissed in-limine.
5. According to her, she divorced her husband viz. Mr.Mansoor Hatimbhai Chherwala on 23rd August 1984 vide a duly executed Talaqnama in Urdu and thereafter on 21st February 2003 after the demise of the wife of
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