IMPORTANT POINT
Civil Court is not devoid of jurisdiction to grant relief of maintenance and right in matrimonial property.

With consent of learned counsel for the parties, heard finally at the stage of ‘admission’ itself.

2. Admit.

3. A very short question raised for consideration in this Second Appeal is, whether in a suit filed under Section 2 of the Dissolution of Muslim Marriages Act, 1939, the Civil Court was competent to grant the relief of maintenance and the relief in respect of matrimonial property of the spouses, for which other statutory enactments and other forums are available?

4. This Second Appeal is directed against the judgment and order dated 06/12/2016 passed by the District Judge-5, Thane, in Civil Appeal No.56 of 2016 which was preferred against the judgment and order dated 11/02/2013 passed by the 9th Joint Civil Judge, Senior Division, Thane, in Special Civil Suit No. 257 of 2011.

5. The said suit was filed by the Respondent-wife, herein, under Section 2 of the Dissolution of Muslim Marriages Act, 1939 (hereinafter referred as, “the Act”), seeking divorce on the ground of cruelty. In the plaint itself, she has claimed the return of ‘Meher Amount’, the maintenance for her two minor children and half share in the flat jointly owned by her and the Appellant.

6. The Appellant resisted the suit on all the counts but did not raise any objection to the maintainability of the various reliefs claimed in the plaint, apart from the decree for ‘dissolution of marriage’. No plea was raised before the trial Court that these reliefs relating to the maintenance, meher and share in the jointly owned flat cannot be asked for or granted in the suit filed under Section 2 of the Act, as those reliefs are provided under different statutes. Conversely, the suit was resisted on merits.

7. Both the parties led their evidence in support of their respective contentions and thereafter, the trial Court was pleased to decree the suit partially. The trial Court granted the decree for dissolution of marriage and also for return of meher amount of Rs.51,000/-. At the same time, the trial Court also awarded the maintenance, at the rate of Rs.15,000/- per month each, to the two minor children and 50% of the share in the jointly owned flat of the parties. The trial Court further directed that either the Appellant can give Respondent 50% of the market value of the said flat or by appointment of Court Commissioner, the flat may be sold and the sale proceeds be divided between the parties equally.

8. The Appellant challenged this judgment and decree of the trial Court before the First Appellate Court and the First Appellate Court vide its impugned judgment and decree dismissed the appeal on all the counts and confirmed the judgment and order of the trial Court. At this stage, it may also be stated that, no specific contention was raised before the Appellate Court also that in a suit filed under Section 2 of the Act, the trial Court was not competent to grant other reliefs, like, return of meher amount or the maintenance and the share in the jointly owned flat.

9. In this Second Appeal, however, this contention is advanced for the first time by learned counsel for the Appellant by submitting that when admittedly as per the title of the suit filed before the trial Court, it was a simpliciter suit filed under Section 2 of the Act, the trial Court was not at all competent to grant any of the above said reliefs. It is submitted that the separate forums are provided for seeking these reliefs, as those rights are granted under various other statutes. According to learned counsel for the Appellant, as the trial Court has thus exceeded its jurisdiction in granting such reliefs, it is a substantial question of law, which is required to be decided in this Second Appeal.

10. Normally, when the objection to the jurisdiction of the trial Court to entertain and grant such reliefs is not raised either before the trial Court or even in the First Appellate Court, this Court in the Second Appeal cannot entertain such objection, as it is too late in a day to do so, because a