TMI Blog1991 (2) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... enance at the rate of ₹ 17,000/- per month for herself and the issue of the marriage, a son, over and above certain other facilities; (c) an injunction restraining the defendant from disposing of the matrimonial home, inducting any third person and interfering with her right to the use and occupation thereof; and (d) an order and decree for maintenance as aforesaid. The plaint avers that the marriage between the plaintiff and defendant was performed according to Hindu rites and a son was born, who is a minor. The conduct of the defendant is set out and, upon this basis, the aforementioned reliefs have been prayed for. 3. It was urged on behalf of the defendant before the learned single Judge (Cazi, J.) that this Court had no jurisdiction to entertain and try the suit and that it was only the Family Court established under the said Act which had such jurisdiction. Thereupon the preliminary issue as aforestated was framed and tried. The learned Judge was inclined to follow the Full Bench judgment of the Madras High Court in Mary Thomas v. K. E. Thomas, , which held that the High Court's jurisdiction was not taken away by the said Act but he found that another learned sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or 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 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); and (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us this morning there were some discussions. A Chamber Summons was, by consent, allowed whereby the defendant was sued also as the karta of his Joint Hindu Family. The character of the suit having been thus altered, it was conceded that the suit would remain in this Court. Consent terms to this effect were filed. Parties also agreed thereunder that the defendant would apply that the Matrimonial Petition before Family Court should be transferred to this Court and that the plaintiff would consent to such transfer. To enable us to decide the issue which has been referred to us, which is bound to arise in many matters, counsel argued the rival contentions as if the consent terms had not been filed. 7. The principal question that must be answered is: Is the High Court a District Court when it entertains, hears and decides suits and proceedings of the nature referred to in the Explanation to sub-section (1) of Section 7 of the said Act. The Full Bench of the Madras High Court in Mary Thomas' case posed the same question in paragraph 10 and answered it in paragraph 20 thus: On a consideration of the relevant provisions of law and the decisions which have been cited, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court, the concerned statute has to so provide. 10. Emphasis was laid on behalf of the defendant upon Section 2(4) of the Code which defines District to mean the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called the District Court ) and includes the local limits of the ordinary original civil jurisdiction of a High Court. It was submitted that, therefore, when the word 'Court' was appended to the word 'District' as defined in the Code, the High Court stood defined as a District Court and, therefore, fell within the meaning of that expression in the said Act. It is not possible to accept this submission because regard must be had to the terms of Section 3 of the Code which says, For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes as subordinate to the High Court and District Court . It is clear that a distinction is drawn by the Code between a High Court and a District Court and the expressions are used therein in different contexts. 11. The learned Judge was rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Parsi Marriage and Divorce Act, 1936. Having regard to the frame of clause (c). It is difficult to accede to the submission, though we must say that we envisage some difficulties when we have regard to the provision in the said Act that evidence is not required to be taken in accordance with the provisions of the Indian Evidence Act, a full transcript thereof is not required to be maintained and legal representation is not ordinarily obtainable. 15. At this point we must note that each of the clauses of the Explanation refers to a suit or proceeding . It is not as if the reliefs that are mentioned there are to be sought in a matrimonial proceeding of the nature indicated in clauses (a) and (b). Even when such reliefs are independently sought the suit or proceeding would be in the Family Court. 16. Clause (g) of the Explanation mentions a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. Guardianship, custody and access to a minor are not sought only in matrimonial causes. Such reliefs may also be sought under the provisions of the Guardians and Wards Act, 1890, the Indian Lunacy Act, 1912 and the Hindu Minority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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