MANU/MH/1865/2015

Equivalent/Neutral Citation: 2015(6)ALLMR616, 2015(6)BomC R163, 2016C riLJ141, 2017(3)C rimes328(Bom.), 2015(3)HLR771, 2015(6)MhLj455,
2017(3)RC R(C ivil)645, 2017(3)RC R(C riminal)357

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5648 of 2015
Decided On: 04.08.2015
Ambreen Akhoon Vs. Aditya Aurn Paudwal and Ors.
Hon'ble Judges/Coram:
Mridula Bhatkar, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Rajiv Wagh
For Respondents/Defendant: Nidhi Shukla i/b Ashwin Duggal
JUDGMENT
Mridula Bhatkar, J.
1. Rule. By consent of the parties, Rule made returnable forthwith and heard finally.
2. This Writ Petition involves a question of law as to whether any relief can be sought
against the relative of the respondent husband in the proceedings filed under section 26
of the Protection of Women from Domestic Violence Act before the Family Court?
3 . In this writ petition, the petitioner challenges the legality of the order dated
11.5.2015 passed by the Family Court at Bandra, Mumbai in Petition No.A-1086 of
2013. The petition before the Family Court was filed for Sherla V. divorce under the
Special Marriage Act, 1954 r/w Protection of Women from Domestic Violence Act, 2005
(for the sake of brevity, hereinafter referred to as 'D.V. Act'). In the said petition, the
petitioner/wife has made her mother-in-law as a party respondent. Therefore, an
application was moved by Respondent No. 2, the mother-in-law, under section 9A and
Order 1 Rule 10 of the Civil Procedure Code for deleting the party on the ground of a
misjoinder of party. An issue was raised before the Family Court that Respondent No. 2
mother-in-law cannot be made a party to the nullity proceedings filed under the Hindu
Marriage Act or Special Marriage Act as the Family Court has jurisdiction in respect of
the proceedings between the parties to marriage only. The said application for
compensation in the said petition was objected to on the ground that Respondent No. 2,
the mother of the husband, cannot be party to the proceedings under the D.V. Act
before the Family Court. The learned Judge of the Family Court heard the matter and
passed a reasoned order by which application under section 9A with Order 1 Rule 10 of
the Civil Procedure Code was allowed and inter alia the preliminary issue is framed as to
"whether the petitioner has proved that Respondent No. 2 is a necessary party to the
proceedings"?
4 . Under Order 1 Rule 10, the Court has power to delete the parties, who are not
necessary for adjudication of the issue. A preliminary issue framed by the Family Court
that whether Respondent No. 2 is a necessary party can be answered by the Family
Court depending on evidence led by the parties leading evidence. However, the learned
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Counsel for the petitioner has raised the contention that in view of section 2(q) of the
D.V. Act, a relative of respondent/husband can also be made respondent. The proviso to
section 2(q) reads thus:
"(q) Provided that an aggrieved wife or female living in a relationship in the
nature of a marriage may also file a complaint against a relative of the husband
or the male partner;"
5 . The learned Counsel for the petitioner argued that the order passed by the learned
Judge of the Family Court is erroneous. The provisions under Order 1 Rule 10 of the
Civil Procedure Code has no relevance to the matter when is filed under the D.V. Act
against the mother-in-law. The learned Judge of the Family Court has ignored the
statement and object of the D.V. Act i.e., to protect the rights of women. He relied on
the section 26 of the D.V. Act and submitted whether mother-in-law is a necessary party
or not cannot be raised in such proceedings when the D.V. Act itself provides
jurisdiction over the relative of the husband specifically. He submitted that the
petitioner can claim reliefs under sections 18, 19, 20, 21, 22 of the D.V. Act, as
specified under section 26 of the D.V. Act in any legal proceeding filed before the
Family Court and, therefore, the finding given by the learned Judge that for seeking
remedy of compensation, jurisdiction under the D.V. Act lies in the Magistrate is
erroneous. While entertaining the petition under the Hindu Marriage Act, the Family
Court can entertain the petition under section 26 of the D.V. Act. Hence, he prayed that
the order be set aside. In support of his submissions, Mr. Wagh relied on Brundaban
Patra & anr. vs. Rajalaxmi Patra, MANU/OR/0236/2011 : 2011 DGLS (AHC) 26266;
Jaydipsinh Prabhatsinh Jhala & Ors. vs. State of Gujarat & Ors., MANU/GJ/0850/2009 :
2010 Cri.L.J. 2462 and on Lokesh Kirankumar Shah vs. Shraddha Lokesh Shaha & anr.,
MANU/MH/2315/2012 : 2012 BCI 526.
6 . Both the learned Counsel for the respondents have opposed the petition.
Ms.Deshmukh, appearing for the Respondent No. 2, has submitted that the Family
Court, Mumbai, has earlier passed the order dated 18.2.2014 which was challenged in
this Court by preferring Family Court Appeal No. 78 of 2014. The learned Counsel
referred to the previous proceedings and orders passed by the Family Court and also the
Division Bench of this Court.
7 . These orders in the previous proceedings can be summed up for better
understanding of the background of the issue. Earlier by order dated 18.2.2014, the
Family Court had directed that the name of Respondent No. 2 was to be struck down
from the petition and necessary amendment to be carried out accordingly. The said
order passed by the Family Court was on the application preferred by Respondent No. 1
/ husband under Order 7 Rule 11 of the Civil Procedure Code and the provisions of the
Family Court Act praying for rejection of the plaint. The Division Bench of this Court by
order dated 4.9.2014 observed that as the application under Order 7 Rule 11 of the Civil
Procedure Code was presented by the respondent/husband only and no specific pleading
was made by the respondents that the relief be granted only in favour of Respondent
No. 2. It held that the Family Court had not considered the pleadings of the petitioner
and therefore, there was no scope for the Family Court to adjudicate upon the
application for dismissal of the petition preferred by Respondent No. 1 under Order 7
Rule 11 of the Civil Procedure Code and therefore the matter was remanded and the
order dated 18.2.2014 was set aside. Therefore, the matter was again restored and the
application under Order 1 Rule 10 alongwith section 9A was preferred.
8. Ms.Deshmukh read over the orders in the previous proceedings and submitted that as

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per the directions of the Division Bench, the Family Court had to take up the matter and
has rightly framed the issue. She submitted that this Writ Petition is nothing but putting
the cart in front of the horse because the Family Court has not given any finding on the
point that whether Respondent No. 2 is a necessary party or not. This issue is framed
under section 9A of the Civil Procedure Code and both the parties will be heard and it
will be decided by the Family Court. She further submitted that though under section 26
of the D.V. Act, the reliefs as specified therein can be claimed if some other proceedings
are filed under the Hindu Marriage Act and are pending before the Family Court or civil
Court, however, it is not permitted for the original petitioner to make any other person
as a party respondent than spouse even if the petition is filed under the D.V. Act. The
Family Court is governed by the Family Courts Act and the jurisdiction of the Family
Court is restricted by section 7 of the Family Courts Act, 1984. The parties before the
Family Court should be necessarily parties to the marriage because the Family Court
decides the issues in respect of the marriage or the issues which are arising out of
marriage where the husband and wife only are the necessary parties. She argued that
the Family Courts Act is a special enactment and has overriding effect over any other
Act. She relied on section 36 of the D.V. Act which states that the provisions of the D.V.
Act shall be in addition to and not in derogation of the provision of other law for the
time being in force. She further argued that the meaning of 'respondent' is restricted
under section 7 of the Family Courts Act, has overriding effect over the meaning of
'respondent' under section 2(q) of the D.V. Act. In support of her submissions,
Ms.Deshmukh relied on S.R. Batra & anr. vs. Taruna Batra, MANU/SC/0007/2007 :
(2007) 3 SCC 169 and Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel & Ors.
MANU/SC/7334/2008 : (2008) 4 SCC 649.
9 . It is a settled position of law that the jurisdiction to seek remedies under the D.V.
Act is before the Judicial Magistrate First Class or the Metropolitan Magistrate. Section
26 of the D.V. Act reads thus:
26. Relief in other suits and legal proceedings.-
(1) Any relief available under sections 18, 19, 20, 21 and 22 may also
be sought in any legal proceeding, before a civil court, family court or
a criminal court, affecting the aggrieved person and the respondent
whether such proceeding was initiated before or after the
commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in
addition to and along with any other relief that the aggrieved person
may seek in such suit or legal proceeding before a civil or criminal
court.
(3) In case any relief has been obtained by the aggrieved person in any
proceedings other than a proceeding under this Act, she shall be bound
to inform the Magistrate of the grant of such relief.
10. Section 26 of the D.V. Act enables a party to seek relief available under sections
18, 19, 20, 21 and 22 of the D.V. Act in any legal proceeding before the civil Court or
Family Court or criminal Court affecting the aggrieved person and whether such
proceeding was initiated before or after the commencement of this D.V. Act.
Subsections (1) and (2) of section 26 presupposes that there should be a suit or legal
proceeding before the civil or criminal Court wherein the relief under the D.V. Act also
can be sought in addition to that relief.

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11. Section 7 of the Family Courts Act limits the jurisdiction of the Family Court to the
parties to a marriage. The explanation to clause 7 reads thus:
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 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 ) such other jurisdiction as may be conferred on it by any other
enactment.
(emphasis added)

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12. Though jurisdiction of the Family Court is restricted to the parties to a marriage,
under subsection (2) of section 7, the jurisdiction of the Family Court is widened as the
cases under Chapter IX of Criminal Procedure Code are also made triable before the
Family Court; so also, under section 2(b), 'such other jurisdiction is conferred on it by
any other enactment'. Thus, under clause (b) of subsection (2), if there is a specific
provision under any other statute that such matters can also be entertained and tried by
the Family Court, then, the jurisdiction of the Family Court can be extended to that
effect. Any relative of the husband is covered under the definition of respondent under
section 2(q) of the D.V. Act. If the statute covers a particular person in the array of the
respondent, then, the status and necessity of that person cannot be challenged under
Order 1 Rule 10 of the CPC. Thus, this issue cannot be raised at all as the D.V. Act
covers the relatives of the husband under the definition of respondent. Hence, mother-
in-law can be brought under the definition of 'respondent' under the D.V. Act has to be
adopted while granting relief and entertaining petition under the D.V. Act.
1 3 . Under section 26 of the D.V. Act, if at all the jurisdiction to entertain and try
matters under the sections specified therein is conferred to the Family Court, then, it is
to be conferred in entirety in respect of the reliefs which are available and can be
sought under the sections specified in the said section. The Legislature did not put any
rider while invoking the reliefs under section 26 of the D.V. Act. Therefore, a meaning
of 'respondent' has to be borrowed from section 2(q) of the D.V. Act for the
proceedings under section 26 of the D.V. Act. Adding and reading such qualification will
amount to illegal interpretation of the law.
14. The jurisdiction under section 7 of the Family Courts Act insofar as the parties to
the proceedings are concerned, is limited to between the parties to the marriage.
However, scope of the term 'respondent' is wider under section 2(q) of the D.V. Act.
The D.V. Act takes care of any type of violence in the house and, therefore, the meaning
of respondent is not restricted to only husband but his relatives are also included in the
definition. It is possible that the same word in one statute may bear a different meaning
in the other statute. The word 'respondent', if taken under the Family Courts Act, is
restricted and so different than the word 'respondent' under section 2(q) of the D.V.
Act. However, section 26 is an enabling section for a wife to seek remedy under the
D.V. Act in the other proceedings pending under the Family Courts Act. The intention of
the Legislature to allow to claim reliefs which are available under the D.V. Act in the
proceedings pending under the Family Courts Act is to curtail the multiplicity of
litigation, to save the time of the Court and litigants, to avoid duplication of the
evidence and so on. The Legislature did not use any language expressly or impliedly
suggesting qualified use of the sections specified in the section 26. Thus, for the
purpose of section 26 of the DV Act, a meaning of word 'respondent' on the Family
Courts Act is controlled by the definition of 'respondent' under section 2(q) of the DV
Act. Therefore, by plain interpretation of law, the word 'respondent' under section 2(q)
is to be given the same meaning under the sections which are specified under sections
26 of the D.V. Act, which are triable by the Family Court. The relief cannot be prayed in
piecemeal. If jurisdiction is widened under section 7(2) of the Family Courts Act, then,
by applying rule of harmonious construction, the definition of the word respondent as
contemplated under the D.V. Act is necessarily be imported when the said proceedings
are tried before the Family Court. Section 36 of the Family Courts Act reads that the Act
shall be in addition to and not in derogation of the provisions of any other law, for the
time being in force. Thus, section 26 is in fact in consonance with section 36 of the D.V.
Act.
1 5 . In the present matter, it is to be noted that a preliminary issue whether the
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Respondent No. 2 is a necessary party is based on and decided as per the facts and
merit of that particular case independently. The case against the Respondent No. 2
considering the merits of the matter and evidence, may fail and the Court is free to hold
on merit that she may or she may not be liable to the reliefs prayed by the wife.
16. In the case of Brundaban Patra (supra), relied on by Mr. Wagh, the daughter in law
filed application under section 23(2) of the D.V. Act before the Family Court for interim
relief under sections 18, 20 and 22 of the D.V. Act, after the death of her husband
against the relief of her husband. The jurisdiction of the Family Court was challenged
and in the said judgment, the High Court has highlighted the object of the enactment of
the D.V. Act. However, it directed that instead of quashing the proceedings before the
Family Court, the learned Judge of the Family Court shall transmit the record to the
learned JMFC and it is to be registered as a criminal case. It also held that the
application simpliciter filed before the learned judge of the Family Court is not
maintainable. So, in the present case, the facts are different.
The other judgements relied on by Mr. Wagh in Jaydipsinh Prabhatsinh Jhala & Ors.
(supra) and Lokesh Kirankumar Shah vs. Shraddha Lokesh Shaha & anr., are also in
respect of the object of the D.V. Act.
1 7 . In the case of S.R. Batra & anr. (supra) relied on y the learned Counsel
Ms.Deshmukh, the concept of shared household under the D.V. Act was dealt with and it
is held that under sections 19(1)(f) of the D.V. Act, a direction can be sought against
the husband and not against the husband's relatives if the premises belong to the
mother-in-law exclusively, then the daughter-in-law cannot claim any right to live
therein.
In the case of Vimlaben Ajitbhai Patel (supra), the right of residence of wife can be
extended to only joint properties in which the husband has a share and mother-in-law
cannot be fastened with any legal liability to maintain her daughter in law from her own
property.
The ratio laid down in S.R. Batra & anr. (supra) and Vimlaben Ajithbhai Patel (supra),
may be useful to the respondent while contesting her matter on merit as it is the law
laid down by the Supreme Court. It deals with the facts and proof of it. Thus, the two
decisions are not useful in respect of the issue raised before this Court of the
jurisdiction of the Family Court in respect of section 26 of the D.V. Act.
18. As a question of law is raised before this Court, the Court has restricted its finding
only to that extent and answered that the relatives of the husband being respondents
under section 2(q) of the DV Act can be made party respondents before the Family
Court if the proceedings specified under section 26 of the D.V. Act are preferred.
19. The learned Judge of the family Court in para 17 of his order has rightly observed
on the basis of the documents and the witnesses filed by both the parties the
preliminary issue can be answered. Therefore, the trial Court has framed the issue. The
trial Court now need not go into the legal aspect of the jurisdiction of the Family Court
under section 7 while dealing with the matters filed under section 26 of the D.V. Act but
the issue needs be answered otherwise on merits.
20. In the circumstances, the petition is partly allowed.
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