G.P. Mittal, J. (Oral) IA No.19884/2014 (O.VII Rule 11 CPC) in CS(OS) 2902/2014

1. This suit for declaration and injunction has been filed by the Plaintiff primarily seeking ante suit injunction. The Plaintiff is the husband of the Defendant. As per the averments made in the plaint, the parties got married in January, 2001 at New Delhi according to Hindu rites and ceremonies.

2. According to the Plaintiff, after the marriage, the parties stayed at Virginia, USA. They were blessed with a baby girl on 24.12.2007. Certain averments have been made about the ill habits of the Defendant in para 4 and other paragraphs of the plaint which are not very relevant for disposal of the instant application moved by the Defendant for rejection of the plaint. The sum and substance of the averments made is that the Defendant had initiated proceedings in Virginia, USA which according to the Plaintiff are malicious, oppressive, vexatious, false and frivolous. It is averred that invocation of the judicial process in USA is the abuse of process of law and against settled principles of law, treaties, conventions and judicial procedure. The Plaintiff states that inspite of the best efforts of the Plaintiff to save the marriage for the welfare and interest of the child Roshni Seth born in the year 2007 and making various concessions, the same proved of no avail.

3. It is case of the Plaintiff that elders including the parents of both the parties and family friends intervened to bring to an end to the ongoing and unending marital discord between the parties. The parties therefore, came to India in April, 2013 and a settlement/agreement was entered into between the parties on 19.04.2013 and reduced to writing.

4. One of the grievances of the Plaintiff is that the Defendant is not complying with the terms of the agreement and on the other hand, initiated the proceedings in USA which as stated earlier are malicious and oppressive.

5. This application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) running into 45 pages has been filed by the Defendant for rejection of the plaint primarily on the ground that the jurisdiction of the Civil Court to entertain the suit with regard to family matters is barred because of the explanation (d) and (g) appended to Section 7 of the Family Courts Act, 1984 (the Act). Section 7 of the Act is extracted hereunder:-

“7. Jurisdiction. – (1) Subject to the other provisions of this Act, a Family Court shall-

a. have and exercise all the jurisdiction exercisable by any district Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

b. be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.

Explanation -The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely:

a. a suit or proceeding between the parties to a marriage for decree of a nullity marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

b. a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; c. a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

d. a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

e. a suit or proceeding for a declaration as to the legitimacy of any person;

f. a suit or proceeding for maintenance;

g. a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act a Family Court shall also have