Judicial Analysis Court Copy Headnote Facts Arguments Court observation

BOMBAY HIGH COURT
R.D. Dhanuka and V.G. Bisht, JJ.
Mrs. Nayana M. Ramani —Appellant
versus
Mrs. Fizzah Navnitlal Shah —Respondent
Family Court Appeal No.179 of 2019 with Cross Objection (Stamp) No.30564 of 2019 in Family Court Appeal No.179 of 2019
Decided on 17.3.2021

Advocates:
Counsel for the Parties:
For the Appellant:Mr. Vineet B. Naik, Senior Counsel a/w. Mr. Sheroy M. Bodhanwalla i/b. M.S. Bodhanwalla and Co., Advocate
For the Respondent:Ms. Deepti Panda a/w. Mr. Kirtida Chandarana and Ms. Nandini Chittal i/b. Mahernosh Humranwala, Advocate

IMPORTANT POINTS
(1) No one should be vexed twice for same cause of action. Cause of action must be same for application of Order II Rule 2 of CPC.
(2) Concept of Order II Rule 2 of CPC is alien to Family Court proceedings.

Headnote:
(A) Civil Procedure Code, 1908 – Order 2 Rule 2 – Bar on subsequent suit – Suit to include whole claim – Object is to prevent multiplicity of suits – Rule is based on principle that no one should be vexed twice for same cause of action – Test for raising objection under the Rule is that whether claim made in subsequent suit could have been made in earlier suit or not – Cause of action must be same for application of Rule. (Para 53)
(B) Family Courts Act, 1984 – Sections 7 and 8 – Civil Procedure Code, 1908 – Order 2 Rule 2 – Family Court Petition – Maintainability – Concept of Order II Rule 2 is alien to Family Court proceedings – Under Section 7 of Act, suit or a proceeding for declaration as to validity of both marriage and matrimonial status of a person is within exclusive jurisdiction of Family Court, since under Section 8 all those jurisdictions covered under Section 7 are excluded from purview of jurisdiction of Civil Court – Cause of action arose only after earlier suits had been filed and it is only Family Court that could have granted relief sought for by appellant in her petition – Said relief was not available to appellant in any other proceeding or before any other forum – Impugned order set aside to the extent that petition is barred by provision of Order 2 Rule 2 of Code – Family Court Petition filed by appellant against respondent is maintainable, accordingly restored to its original file for being tried on merits and in accordance with law. (Paras 16, 67 and 68)
Result: Appeal allowed.

JUDGMENT

V.G. Bisht, J.—This appeal arises from the common order dated 15th July 2019 on Exh. 1 and Exh. 11 passed by the Judge, Family Court No.2, Mumbai, whereby the learned Judge dismissed Family Court Petition No.B-62 of 2016 under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”).

1A The respondent also assails above said order by way of cross-objection in as much as grounds for rejection of said Family Court Petition viz. locus, limitation and non-joinder of necessary party were rejected by the learned Judge of the Family Court.

2. Facts which lie in narrow compass required for disposal of this appeal can be stated as follows :

(a) The appellant herein is a married daughter of late Mr.Navnitlal R. Shah (for short the appellant’s father) with whom the respondent alleges to have got married on 24th July 2003 after the demise of appellant’s mother viz. Hiralaxmi Shah in February 2003. The marriage between the appellant/petitioner’s father and the respondent was solemnized before the Marriage Officer, Mumbai.

(b) The appellant’s father expired on 30th June 2015 leaving behind three married daughters and one married son. The appellant’s father was a Jain by religion and the respondent was a Muslim belonging to Dawoodi Bohra Section of the said religion, at the time of the alleged marriage.

(c) According to the appellant, her father was an extremely successful businessman who built the business of “Ashapura Group” comprising of several Companies. He owned various assets and properties and was till some years ago a Director in many of the Companies in the Ashapura Group. The appellant alleges that the respondent was already married to Mr.Mansoor Hatimbhai Chherwala but was not divorced, which fact she deliberately concealed and suppressed from the appellant’s father. She falsely portrayed herself as a divorcee but was not a divorcee at all. This fact came to be unearthed and came to the knowledge of the appellant/petitioner recently when she happened to come across copies of the alleged divorce documents while going through the personal files of her father and after verifying the authenticity of those doubtful documents. There is no issue to the appellant’s father and the respondent out of the alleged wedlock.

(d) Alleging further, the appellant contends that the respondent took undue advantage of the mental ailments, infirmities and unsoundness of mind of her father, which she was very well aware of, got married to him and then exercised and applied undue influence, coercion and duress upon him with the intention and motive of siphoning his entire properties. She even got executed various documents including his Will and several Gift Deeds of various valuable immovable properties and deprived the true legal heirs of their rights. The respondent also compelled her father to transfer a huge quantity of shares of Ashapura Group of Industries to her name and also forcibly took away custody of the jewellery “Stridhan” of her mother after her death.

3. In the above factual backdrop, the appellant filed the said Family Court petition seeking declaration that the marriage allegedly solemnized between her father and the respondent on 24th July 2003 is null and void and also the status of the respondent as on today continued to be the wife of the said Mr.Mansoor Hatimbhai Chherwala under the provisions of Section 7 (1) Explanation (b)and (d) of the Family Courts Act (“the Act” for short).

4. The respondent resisted the petition by filing her written statement. At the very outset, the respondent raised objection as to the jurisdiction of the Family Court by contending that the Court does not have the jurisdiction to try and entertain the petition and therefore deserves to be dismissed in-limine.

5. According to her, she divorced her husband viz. Mr.Mansoor Hatimbhai Chherwala on 23rd August 1984 vide a duly executed Talaqnama in Urdu and thereafter on 21st February 2003 after the demise o