P.Anurag And 2 Ors vs P.Shailaja

This Family Court Appeal is filed against the Judgment dated 30.09.2009 in O.S.No.18 of 2008 passed by the learned Family Court Judge, Ranga Reddy District at L.B.Nagar, Hyderabad.

One P.Sailaja/wife/respondent filed O.S. against her Husband, Anurag and his parents/appellants for damages and compensation of Rs.8 lakhs. She examined herself as P.W.1 and also examined her father as P.W.2 and got marked Exs.P1 to P21 on her behalf and no oral and documentary evidence was adduced on behalf of appellants/petitioners.

As per the docket order dated 06.09.2006 of the trial Court, notices sent by respondent to appellants/defendants No.1 to 3 were returned as unserved and later the Suit was transferred to the Family Court and the publication was ordered in Prajashakti daily, even after the publication, defendants remained exparte. The trial court after considering the evidence of plaintiff/respondent and basing on the documents filed by the plaintiff, decreed the suit in her favour and granted an amount of Rs.5,10,042/-. Aggrieved by the said order, her husband/appellant No.1 and his parents filed the present appeal.

Learned counsel for appellants/petitioners mainly contended that the Family Court has no jurisdiction to pass the judgment as per Section 7 of the Family Courts Act to entertain or dispose of a suit for damages or compensation against the persons who are not parties to the marriage. He further contended that the decree is void. Basing on the receipts filed by the respondent, the trial Court came to a conclusion that the gold, furniture, articles were presented at the time of marriage or the appellants/petitioners herein have retained the same. The trial Court failed to take into consideration the bills pertaining to catering, function hall, photographs which were spent at the time of marriage and no summons were served on the appellants herein and substitute service was ordered in an obscure newspaper which does not have any publicity and they were set exparte. The appellants came to know about the filing of the suit only when they received summons in EP.No.1 of 2010 and the appellants immediately filed an application for certified copy on 08.07.2010 and it was made ready on 26.07.2010 and thus there is a delay of 287 days in presenting the appeal. Therefore, requests this Court to set aside the judgment passed by the trial Court.

Heard arguments on both sides. Perused the record.

The parties herein are referred as plaintiff/wife and defendant No.1/husband as erred in trial Court for the sake of convenience.

The marriage of the plaintiff with defendant No.1 was performed on 26.08.2005. The parents of the plaintiff gave Rs.4 lakhs in cash to the defendant No.1 towards dowry also Rs.50,000/- in cash towards expenses (Lanchanalu) and apart from that plaintiff was presented with 8 tulas of gold and one diamond pendent costing about Rs.60,000/-. The defendant No.1 was presented with a gold ring and one chain weighing two tulas and their marriage was not consummated. On nuptial ceremony day, the defendant No.1 spoke about his studies and his financial problems and enquired about the plaintiff assets and the defendant No.1 was never interested in matrimonial life and whenever plaintiff brought the subject, he used to shout at her and create unnecessary scene and used to harass her both mentally and physically for days together. He and his parents demanded to get more money from her parents and when she refused the same, they used to beat her mercilessly and kept her hungry. On 04.03.2006, defendant No.1 beat her indiscriminately and threatened to kill her. Defendant No.1 and his parents warned her not to enter the house without bringing the money. She is an ordinary lady from a middle class family and only daughter to her parents.

Plaintiff stated that she realized that the defendant No.1 has some problem or defect as he could not succeed in consummation of the marriage and she requested to go to a doctor for consultation and he refused and he used to postpone the consummation. He stated that he was never interested in the marriage and due to the force of his family members he married her. He misrepresented that he is fit, hale and healthy person and suppressed the defect, as such the plaintiff filed suit for divorce and after the formation of the Family Court, and the case was transferred to Family Court. Even when the publication was ordered, defendants No.1 to 3 did not appear before the Court and set exparte.

The main contention of the learned counsel for respondent/husband is that no summons were served upon him. As per the docket order dated 06.09.2006 of the trial Court, summons were sent to the parties and they were returned as unserved with an endorsement house vacated, as such plaintiff has no other option but to give the publication. Even after the publication, defendants did not turn up and they were set exparte. Therefore, his argument is that he has no knowledge about the proceedings and he came to know about the judgment only after filing the E.P. cannot be accepted.

Though the plaintiff in the Suit claimed compensation towards marriage expenses incurred by her, after considering the receipts filed by her, the trial Court granted Rs.5,10,042/-and this Court need no interference in it. Plaintiff clearly stated that marriage was not consummated and the defendant No.1 and his parents suppressed the fact about his defect and performed her marriage with him and thus she claimed compensation or damages and she enclosed the order of the trial Court under Ex.P1 in support of her contention and filed suit for compensation. The trial Court considering the evidence granted an amount of Rs.5,10,042/- and there is no irregularity and infirmity in the said order.

As per the decision rendered by Hon’ble Apex Court in Balaram Yadav Vs Fulmania Yadav AIR 2016 SC 2161, wherein it was held as follows:

Section 20 of the Family Courts Act, 1984 provides for overriding effect of the Act on other laws or instruments having the effect of law. The said Section reads as follows:-

Act to have overriding effect- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Section 7 (1) of Family Courts Act reads as follows:

(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.

(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;

Section 7 (2) of Family Courts Act: Subject to the other provisions of this Act, a Family Court shall also have and exercise:

(a) the jurisdiction exercised by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974)

(b) such other jurisdiction as may be conferred on it by any other enactment.

In this case, initially the suit was filed before Senior Civil Judge, and it is within the jurisdiction. When the Family Court was established, all the cases filed in the Senior Civil Judge Court were transferred to the Family Court. Defendant No.1 neither appeared nor objected the jurisdiction. It was clearly mentioned as such exparte decree was passed. Moreover, it was clearly mentioned in section 7 explanation 2 (b) as the suit is maintainable to be filed in the Senior Civil Judge Court and was transferred to the Family Court. It cannot be said that Family Court has no jurisdiction to try the matter. Moreover, it was clearly mentioned that the suit for damages was filed by plaintiff. Though it was filed in the Senior Civil Judge Court, the matter was transferred to the Family Court. Therefore, the argument of the defendant No.1 therein that there is no jurisdiction to the Family Court cannot be considered and he further contended that Family Court does not extend the jurisdiction to the persons who are not parties to the marriage though marriage was performed between plaintiff and defendant No.1 and parents of the plaintiff and defendant No.1 are considered to be family members and they cannot be excluded on the ground that there are no parties to the marriage. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court.

In the result, the Family Court Appeal is dismissed confirming the Judgment dated 30.09.2009 in O.S.No.18 of 2008 passed by the learned Family Court Judge, Ranga Reddy District at L.B.Nagar, Hyderabad. There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.