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2014 Supreme(P&H) 1554
PUNJAB AND HARYANA HIGH COURT
RAJIV NARAIN RAINA, J.
Lt. Col. Satish Chaudhary - Petitioner
Versus
Kumari Sneh Lata - Respondent
CR No. 808 of 2014 (O&M)
Decided On : 14.8.2014
Subject
Family Law - Maintenance
Act Referred
COURT FEES ACT : S.7
FAMILY COURTS ACT : S.7, S.7(1)(b)
HINDU ADOPTIONS AND MAINTENANCE ACT : S.20, S.12, S.3(b)(i), S.3(b)(ii)
Headnote
Held, present is not a civil suit u/s.9 CPC--It is a petition under substantive provisions of a special Act triable by a special Forum, and for those petitions and would appear not to be per se governed by the provisions of S.7 of Court-fees Act, 1870--Right to maintenance or quantification of a reasonable amount to defray marriage expenses by applicant-respondent can only be a rough estimate of expenses likely to be incurred as an incidence of marriage--Thus, Family Court would be free in its judicious discretion to deal with petition in accordance with law under which it is acting and to see whether case falls under provisions of the Act paying due regard to considerations set out in s.3(b) and s.23(1)(b) and s.23(2)(d) thereof to determine reasonable wants and expenses of claimant, and to see if respondent falls within definition of dependants in s.21 of the Act--Claim, if any, which may or may not be fastened on petitioner, still remains inchoate and largely in realm of a future judicial determination by adjudication of rights to marriage expenses claimed in petition--Claim cannot be predicted or predicated with any reasonable certainty--It is not possible to estimate money value of subject matter of dispute before declaration of rights inter se parties is granted or denied by court--Therefore, respondent cannot on first principles be called upon to affix ad valorem court-fee on petition instituted under special Act on claimed amount of Rs.50 lac--Court Fees Act, 1870, S.7--Family Courts Act, 1984, S.7. (Para 4, 5, 10)
Advocate Appeared:
For the Petitioner:Mr. Kartar Singh Malik-I, Advocate
For the Respondent:Mr. Babbar Bhan, Advocate
Rajiv Narain Raina, J.
Heard learned counsel for the parties in the challenge to the order passed by the learned District Judge, Family Court, Bhiwani dismissing the defendant's application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 ('CPC'). The defendant prayed in the obstruction application that the suit for maintenance could not proceed except upon affixation of ad valorem Court-fee on the petition in terms of Section 7 of The court-fees Act, 1870 and in terms of the maintenance value quantified and prayed that the maintenance petition be dismissed for deficiency in payment of requisite court-fee. In the petition filed under section 20 of the Hindu Adoptions and Maintenance Act, 1956 ('the HAMA'), a claim is made for marriage expenses in a sum of 50 lacs from the defendant, the petitioner before this Court. The story narrated is that the defendant serves in the Indian Army in the rank of a Lieutenant Colonel. He was married off in accordance with the rule of custom to Smt. Sushila Kumari, the widow of his deceased brother. The respondent is the natural born daughter of late Sh.Suresh Kumar and Smt. Sushila Kumari. It is pleaded that the petitioner was two and half years of age at the time. In resisting the petition, the defendant chose to respond to the petition admitting in clear terms that Kumari Sneh Lata was his adopted daughter. This admission is made in paragraph 1 on merits of the written statement. If she is adopted, she would be deemed to be the child of the adoptive father in terms of section 12 of the HAMA. However, these matters need not be gone into for the present since they are for the trial court to consider as the concern here is save and express to the correctness of the impugned order passed by learned trial Judge declining the application under Order 7 Rule 11 CPC and proceeding with the petition.
2. Learned counsel for the petitioner raises preliminary ground of maintainability of the petition to submit that the remedy itself, if any, lies in the civil court and not by way of a petition under the HAMA, as the one pending in the Family Court at Bhiwani exercising powers under the said Act. He relies on the decision of the Himachal Pradesh High Court in Baldev Singh v. Pooja Devi, 2007(3) RCR (Civil) 150 to fortify his contention. This was a case where the petitioning daughter had brought a claim under the provisions of the Act against her father to meet her marriage expenses. The question of maintainability exclusively before the civil court was not taken in the application under Order 7 Rule 11 CPC which was restricted to the issue of charge-ability to ad valorem court-fee. This court, thus, would not go into it.
3. On the other hand, learned counsel for the respondent places reliance on a decision of the Supreme Court in Ruma Chakraborty v. Sudha Rani Banerjee & another, 2005(8) SCC 140 to counter the contention of the petitioner. In this case a divorce was sought inter alia from the husband together with a claim for provision for food, clothing, residence, the three of the benefits provided other than education, medical attendance and treatment by section 3 (b) (i) of the HAMA together with maintenance expenses for their unmarried daughter, a right conferred by section 3 (b) (ii). The Supreme Court observed that there was such a liability fastened on the husband by virtue of marriage. However, these are in the main, matters for the trial Court to enter upon and decide.
4. So far as the question of ad valorem court-fee is concerned, it may be remembered that the present is not a civil suit under section 9 of the CPC. It is a petition under the substantive provisions of a special Act triable by a special Forum, and for those petitions and would appear not to be per se governed by the provisions of Section 7 of the Court-fees Act, 1870. This is for the reason that the Family Courts Act, 1984 ('FCA') is applicable to the State of Haryana where Family Courts have been established unde
