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BOMBAY HIGH COURT
A.M. Dhavale, J.
Ravindra Sukhdev Ghadge —Appellant
versus
Swati Ravindra Ghadge @
Swati Bhonde —Respondents
Second Appeal No.237 of 2016
Decided on 2.11.2018
Counsel for the Parties:
For the Appellant:Mr. Jiwan J. Patil, Advocate
For the Respondent:Mr. M.S. Karad h/f Mr. S.V. Jadhavar, Advocate
IMPORTANT POINT
There is specific ouster of jurisdiction of courts in respect of area for which Family Court has been established.
Headnote:Family Courts Act, 1984—Sections 7 and 8—Matrimonial disputes—Ouster of jurisdiction of Civil Court—In view of the establishment of Family Court, Civil Judge Senior Division, had no jurisdiction to conduct petition for grant of maintenance under Hindu Adoptions and Maintenance Act, 1956—If establishment of Family Court and vesting of exclusive jurisdiction with Family Court is treated at par with territorial jurisdiction, then decision passed by Civil Judge will not be a nullity—However, if it is subject-wise exclusion of jurisdiction under Section 8,decision will be a nullity—Trial Court directed to return plaint to respondents for presentation before Family Court. (Paras 8, 9 and 17)
Result: Appeal Partly allowed.
A.M. Dhavale, J.—In this second appeal, Mr. Jiwan Patil, learned counsel for the appellant has raised issue of jurisdiction of the trial Court as well as the appellate Court on the ground that Sections 7 & 8 of the Family Courts Act, 1984, ousts the jurisdiction of the civil court in respect of matrimonial dispute filed.
2. The appellant Ravindra is husband of respondent No. 1 - Swati and father of respondents No. 2 - Tanmay and respondent No. 3 - Arav. The respondents filed Hindu Marriage Petition No. 100 of 2012 in the court of Civil Judge Senior Division, Aurangabad. The appellant is resident of Buldhana and the respondents who are original petitioners, were shown to be residing in N-12, CIDCO, Aurangabad. The marriage was solemnized in Aurangabad. The petition was filed for maintenance under the Hindu Adoption and Maintenance Act, 1956. The learned trial Judge awarded maintenance of Rs.18,750/- per month to all the respondent-original petitioners together, from the date of the petition. In the trial Court, Ravindra - the appellant herein, had not raised any defence of jurisdiction. He filed Reg. Civil Appeal No. 155 of 2014 challenging the order of trial Court. The first Appellate Court modified the order and granted maintenance at the rate of Rs. 5,000/- for each of the petitioners.
3. Heard Mr Jiwan Patil, learned counsel for the appellant and Mr M. S. Karad, learned counsel for the respondent. The substantial question of law framed on 22 nd October, 2018 with my finding is as follows:—
“Whether the judgment and decree passed by the Civil Judge Senior Division, Aurangabad, and confirmed by District Judge, Aurangabad is nullity on account of exclusion of jurisdiction in matrimonial matters by Section 7 of the Family Courts Act?”
...... In the affirmative.
4. There is no factual dispute. The petition was filed in the court of Civil Judge Senior Division as the petitioners were residing in Cidco and the marriage had taken place at Aurangabad. It is not disputed that the residence of the original petitioners as well as place of marriage are within municipal limits of Aurangabad Municipal Corporation and the Family Court is having jurisdiction over the entire area of Aurangabad Municipal Corporation.
5. Sections 7 & 8 of the Family Courts Act read as under:—
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 sub-section are suits and proceedings of the following nature, namely,—
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of 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 and exercise—
(a) the jurisdiction exercisable
