IMPORTANT POINT
Exclusion of jurisdiction of Civil Court is not to be readily inferred – Mere marital relationship between parties is not a determinative factor to oust jurisdiction of Civil Court.

ORDER

The applicant/defendant has preferred this application to reject the plaint under the provisions of Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 (the Code), as being barred by law, and, in the alternative, to transfer the captioned suit to the appropriate Family Court for trial along with a Petition filed by the plaintiff/respondent for dissolution of the marriage.

2. The background facts necessary for determination of this application can be stated in brief as under:—

[a] The plaintiff is an advocate by profession. Defendant is also engaged in corporate law practice. The defendant is a British citizen. The plaintiff and defendant are Parsis.

[b] The marriage of the plaintiff and defendant was solemnized on 29th March, 2012 under the provisions of the Special Marriage Act, 1954 (the Special Marriage Act). On 1st April, 2012 the plaintiff and defendant also solemnized and registered marriage under the Parsi Marriage and Divorce Act, 1936 (the Parsi Marriage Act). The plaintiff and defendant are blessed with a daughter and a son.

[c] It seems since the year 2019, marital discord struck the life of plaintiff and defendant. Allegations and counter allegations do not deserve to be adverted to, for the purpose of determination of this application. It would be suffice to note that in the year 2021 the marital discord escalated resulting in loss of trust. The plaintiff asserts the plaintiff and defendant could not resolve the matrimonial dispute and decided to part ways amicably and till such time stay together in the matrimonial home.

3. On 7th September, 2022, according to the plaintiff, he received an intimation that the account maintained with ‘Charles Schwab and Co.’ (Schwab account), to which the plaintiff had made the defendant a joint account holder, was debited at the defendant’s instance to the tune of US$ 4 million. Assets totaling US$ 4 million had been transferred by the defendant to her own Schwab account.

4. The plaintiff, thus, claimed to have rushed to the Court with the instant suit seeking recovery of the sum of US$ 4,084,063 which the defendant had allegedly illegally transferred out of the Schwab account, jointly held by the plaintiff and defendant. It was averred that the defendant had no right, title and interest in the funds so transferred. The defendant’s intention appeared to be to use the money allegedly siphoned off by her to set up a life abroad.

5. The plaintiff averred since the defendant had left the home with children, passport and other documents, he apprehended that the defendant will take the children out of the country. Once, the defendant leaves the country, the plaintiff’s rights would be irretrievably prejudiced in as much as the recovery of the allegedly siphoned off amount would become virtually impossible. The access to funds would embolden and/or incentivise the defendant to leave the country with their minor children. Hence, plaintiff prayed for a decree in the sum of US$ 4,084,063 along with interest @ 12% p.a.

6. An application for interim/ad-interim relief, being an Interim Application (L) No. 28657 of 2022, was moved for an order and direction that the defendant/respondent re-transfer the aforesaid amount, and not to permit the defendant/respondent to leave the country and further direct the defendant/respondent to deposit her passport along with the minor children passports.

7. On 7th September, 2022 this Court passed an order appointing a senior advocate of this Court as Mediator to explore the resolution of the dispute and ordered status-quo in so far as the amount of US$ 4,084,063 and ZBA partnership firm’s account and also directed that the passports of the plaintiff, defendant and their children, be deposited with the Prothonotary and Senior Master of this Court. It was clarified that the plaintiff and defendant shall have access to the children till further orders.

8. In the intervening period, the plaintiff moved another application for further interim reli