2015 Supreme(P&H) 141

IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Justice Mr. S.S. Saron
The Hon’ble Justice Ms. Navita Singh
FAO No. 5481 of 2012
P. Sunder Raj
v.
P. Sarika Raj
{Decided on 02/03/2015}

Headnote:Family Court--Jurisdiction--Family Court has the jurisdiction to set aside or nullify a decree passed by it or by a Co-ordinate Court--Decree of a Family Court not to be set aside only in a declaration suit before a regular Civil Court.

       Divorce--By Mutual Consent--The waiting period of six months from the presentation of the petition for divorce by mutual consent is mandatory and is not to be dispensed with.

       (A) Family Courts Act, 1984, S.7--Jurisdiction--Family Court has the jurisdiction to set aside or nullify a decree passed by it or by a Co-ordinate Court--Decree of a Family Court not only to be set aside in a declaration suit before a regular Civil Court.

       The respondent-wife filed a petition/suit seeking cancellation of the decree dated 05.10.2009 passed by the learned Family Court at Hyderabad as it affects her matrimonial status as wife of the appellant. Therefore, the Family Court at Gurgaon to which the petition of the respondent seeking setting aside of the decree dated 05.01.2009 passed by the Family Court at Hyderabad had been transferred by the Hon’ble Supreme Court in Transfer Petition (C) Nos.908-911 of 2009 under Section 25 CPC, had the jurisdiction to entertain and try the petition and grant the relief prayed for. This is for the reasons that the suit/petition filed by the respondent-wife was/is for the determination of her status as wife of the appellant which falls under clause (b) of the ‘Explanation’ to Section 7 (1) of the 1984 Act. Besides, in terms of Section 7 (1)(a) of the 1984 Act the Family Court has and exercises all the jurisdiction excercisable by any District Court or any subordination 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’ thereto. In terms of Section 7 (1) (b) of the 1984 Act, a Family Court is deemed to be for the purposes of exercising such jurisdiction under such law, to be a District Court, as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.

       (B) Family Courts Act, 1984, S.7--Jurisdiction--The mere fact that the marriage between the parties had been dissolved by a decree of the Family Court at Hyderabad would not mean that the Family Court, Gurgoan, cannot exercise jurisdiction where question of matrimonial status of the parties is involved.

       (C) Evidence Act, 1872, S.41--Judgment in Rem--A judgment of a Matrimonial Court is a judgment in rem.

       (D) Family Courts Act, 1984, S.7--Jurisdiction--Jurisdiction of Court created especially for resolution of disputes of certain kinds should be construed liberally and the restricted meaning if ascribed to the ‘Explanation’ (c) of Section 7(1) of the 1984 Act would frustrate the object for which the Family Courts were set up--Therefore, a restricted meaning on the question of determining the matrimonial status of a person by a Family Court set up for the purpose is not to be given and the dispute is not to be restricted to parties to a subsisting marriage.

       (E) Family Courts Act, 1984, S.7--Jurisdiction--A Family Court when exercising powers and jurisdiction relating to matters referred to in the ‘Explanation’ to Section 7(1) is a Civil Court and for nature of proceedings mentioned in the ‘Explanation’ it has all powers, jurisdiction and trappings of a Civil Courts.

       (F) Hindu Marriage Act, 1955, S.13-B--Divorce--By Mutual Consent--The waiting period of six months from the presentation of the petition for divorce by mutual consent is mandatory and is not to be dispensed with.

       Where a power is given to do certain thing in a certain way, that must be done in that way alone or not at all and all other methods of performance are necessarily forbidden. Therefore, the statutory provisions which have been enacted for grant of divorce by mutual consent are to be adhered to and these cannot be circumvented or short circuited by resort to other procedure like Order 23 Rule 3 CPC and grant a divorce by dispensing with the requirements contained in Section 13-B of the Hindu Marriage Act.

       (G) Hindu Marriage Act, 1955, S.13-B--Divorce--By Mutual Consent--Family Court granted divorce on basis of compromise petition under O.23 R.3 CPC--Decree was passed on same day by dispensing waiting period of six months, moreover it was not even mentioned in decree that period has been dispensed with--Decree held to be not validly passed.