# Smt. Pratibha Gautam & Anr v. The Civil Judge (Senior Division), Sitapur & Anr - **Citation:** (2016) 4 ILRA 908 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-18 - **Bench:** Attau Rahman Masoodi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pratibha-gautam-anr-v-the-civil-judge-senior-division-sitapur-anr-43702 - **Pages:** 6 ## Headnote This application under Section 24 of the Code of Civil Procedure, 1908 has been filed seeking transfer of Civil Suit No. 521 of 2014 instituted before the Civil Judge (Senior Division), Sitapur, to a court of competent jurisdiction at Lucknow. The applicants include the daughter (Applicant No. 1) and her father (Applicant No. 2). The suit was filed for cancellation of a marriage certificate allegedly issued fraudulently in favour of opposite party no. 2. The matter had already progressed to the stage of framing of issues and partial adjudication of preliminary issues before the trial court. PROCEDURE 4 All. Smt. Pratibha Gautam & Anr. Vs The Civil Judge (Senior Division), Sitapur & Anr. 909 The civil suit reached the stage of framing of issues on 29.07.2015, when Issues Nos. 1 to 5 were framed, and Issue No. 2 relating to cause of action was decided on the same date. Issues Nos. 3 and 4 regarding valuation and court fees were decided in favour of the applicants on 12.08.2015. Subsequently, at the stage of evidence, respondent no. 2 filed an application under Order VII Rule 11 CPC raising an objection that the suit being matrimonial in nature was not maintainable before the Civil Court and lay exclusively within the jurisdiction of the Family Court under the Family Courts Act, 1984. During pendency of such objection, the present transfer application was moved before the High Court. PENAL SECTIONS Not applicable, as the matter arises from civil and matrimonial jurisdiction only. CASE LAW / STATUTORY LAW CONSIDERED Section 9, Code of Civil Procedure, 1908 Section 24, Code of Civil Procedure, 1908 Section 7, Family Courts Act, 1984 Order VII Rule 11, Code of Civil Procedure, 1908 HEAD NOTES A civil suit seeking cancellation of a marriage certificate on the ground of fraud and denial of matrimonial relationship is essentially a matrimonial dispute falling within the exclusive domain of the Family Court under Section 7 of the Family Courts Act, 1984. Though instituted before the Civil Judge, the suit was held to be maintainable only before the Family Court. Considering the peculiar facts where the alleged wife denies the marital relationship and asserts marriage with another person, and allegations of blackmail, the High Court exercised its power under Section 24 CPC to transfer the suit to the Family Court, Lucknow, even at the stage of evidence, dispensing with notice to the respondent in the interest of justice. FACTS The applicants filed a civil suit seeking cancellation of a marriage certificate allegedly issued by the Deputy Registrar/Registrar, Hindu Marriage, Mahmoodabad, Sitapur, showing Applicant No. 1 to be the legally wedded wife of respondent no. 2. The applicants categorically pleaded that Applicant No. 1 was never married to respondent no. 2 and was actually married to one Vipin Kumar Chandra. It was alleged that respondent no. 2 had obtained a fictitious and fraudulent ma ## Text 908 INDIAN LAW REPORTS ALLAHABAD SERIES indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." 19. In view of above exposition of law, we do not find any procedural or otherwise error in the order impugned in this revision so as to warrant interference. 20. Dismissed. 21. Interim order, if any, stands vacated. 22. Certify this order to the Lower Court immediately. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 18.04.2016 BEFORE THE HON'BLE ATTAU RAHMAN MASOODI, J. Application Under Section 24 C.P.C. No.- 47 Of 2016 Smt. Pratibha Gautam & Anr. ...Applicants Versus The Civil Judge (Senior Division), Sitapur & Anr. ...Opposite Parties Counsel for the Applicants: Shri Amar Nath Dubey, Shri Vivek Kumar Mishra Counsel for the Opposite Parties: Amar Nath Dubey, Vivek Kumar Mishra PROCEEDINGS This application under Section 24 of the Code of Civil Procedure, 1908 has been filed seeking transfer of Civil Suit No. 521 of 2014 instituted before the Civil Judge (Senior Division), Sitapur, to a court of competent jurisdiction at Lucknow. The applicants include the daughter (Applicant No. 1) and her father (Applicant No. 2). The suit was filed for cancellation of a marriage certificate allegedly issued fraudulently in favour of opposite party no. 2. The matter had already progressed to the stage of framing of issues and partial adjudication of preliminary issues before the trial court. PROCEDURE 4 All. Smt. Pratibha Gautam & Anr. Vs The Civil Judge (Senior Division), Sitapur & Anr. 909 The civil suit reached the stage of framing of issues on 29.07.2015, when Issues Nos. 1 to 5 were framed, and Issue No. 2 relating to cause of action was decided on the same date. Issues Nos. 3 and 4 regarding valuation and court fees were decided in favour of the applicants on 12.08.2015. Subsequently, at the stage of evidence, respondent no. 2 filed an application under Order VII Rule 11 CPC raising an objection that the suit being matrimonial in nature was not maintainable before the Civil Court and lay exclusively within the jurisdiction of the Family Court under the Family Courts Act, 1984. During pendency of such objection, the present transfer application was moved before the High Court. PENAL SECTIONS Not applicable, as the matter arises from civil and matrimonial jurisdiction only. CASE LAW / STATUTORY LAW CONSIDERED Section 9, Code of Civil Procedure, 1908 Section 24, Code of Civil Procedure, 1908 Section 7, Family Courts Act, 1984 Order VII Rule 11, Code of Civil Procedure, 1908 HEAD NOTES A civil suit seeking cancellation of a marriage certificate on the ground of fraud and denial of matrimonial relationship is essentially a matrimonial dispute falling within the exclusive domain of the Family Court under Section 7 of the Family Courts Act, 1984. Though instituted before the Civil Judge, the suit was held to be maintainable only before the Family Court. Considering the peculiar facts where the alleged wife denies the marital relationship and asserts marriage with another person, and allegations of blackmail, the High Court exercised its power under Section 24 CPC to transfer the suit to the Family Court, Lucknow, even at the stage of evidence, dispensing with notice to the respondent in the interest of justice. FACTS The applicants filed a civil suit seeking cancellation of a marriage certificate allegedly issued by the Deputy Registrar/Registrar, Hindu Marriage, Mahmoodabad, Sitapur, showing Applicant No. 1 to be the legally wedded wife of respondent no. 2. The applicants categorically pleaded that Applicant No. 1 was never married to respondent no. 2 and was actually married to one Vipin Kumar Chandra. It was alleged that respondent no. 2 had obtained a fictitious and fraudulent marriage certificate and was blackmailing and harassing the applicants on its basis. During the pendency of the suit before the Civil Judge (Senior Division), Sitapur, objections were raised regarding jurisdiction on the ground that the dispute was matrimonial in nature. CONTENTIONS By the Applicants Applicant No. 1 was never married to respondent no. 2. A fraudulent and fictitious marriage certificate was obtained. The certificate is being misused to blackmail and harass the applicants. The dispute is matrimonial and deserves transfer to the competent court at Lucknow. Applicant No. 1 is actually married to another person. By Respondent No. 2 910 INDIAN LAW REPORTS ALLAHABAD SERIES The civil suit is not maintainable before the Civil Court as the dispute is matrimonial. The matter falls under the exclusive jurisdiction of the Family Court. Application under Order VII Rule 11 CPC was filed challenging maintainability. ANALYSIS The jurisdiction of Civil Courts under Section 9 CPC is available unless expressly or impliedly barred. Section 7 of the Family Courts Act, 1984 carves out exclusive jurisdiction over matrimonial disputes. The present dispute relates to the validity of a marriage certificate and matrimonial status. Such disputes clearly fall within the Explanation under Section 7 of the Family Courts Act. The objection raised by respondent no. 2 regarding Family Court jurisdiction is legally valid. Since the certificate itself defines matrimonial status, civil jurisdiction is impliedly barred. Ordinarily, transfer under Section 24 CPC requires issuance of notice. However, in view of denial of marriage by Applicant No. 1 and allegations of harassment, issuance of notice was dispensed with. Though the suit had reached the stage of evidence, peculiar circumstances justified the exercise of transfer powers. Applicant No. 2 (father) has no independent locus as plaintiff and may only assist in pairvi. Ends of justice demand that the dispute be adjudicated by a competent Family Court. Time-bound disposal was directed to prevent misuse of litigation. FINAL CONCLUSION The dispute relating to cancellation of the marriage certificate is a matrimonial dispute squarely falling within the jurisdiction of the Family Court under Section 7 of the Family Courts Act, 1984. The Civil Court at Sitapur lacks jurisdiction to try the matter. Considering the peculiar facts and allegations of harassment, this Court exercised its discretionary powers under Section 24 CPC and transferred the suit to the Family Court, Lucknow, in the interest of justice. FINAL ORDER The transfer application is allowed. Civil Suit No. 521 of 2014 is transferred from the Court of Civil Judge (Senior Division), Sitapur to the Family Court, Lucknow. The applicants shall file a copy of this order before the Civil Judge (Senior Division), Sitapur within two weeks. Necessary steps for transfer of records shall be completed within one month with due notice to respondent no. 2. The Family Court, Lucknow shall endeavour to decide the case expeditiously, preferably within one year from the date of production of a certified copy of this order. In case of any grievance, respondent no. 2 shall be at liberty to seek recall. (Delivered by Hon'ble Attau Rahman Masoodi, J.) 1. Heard learned Counsel for the applicant. 2. This transfer application has come to be filed in peculiar circumstances. The applicant no. 1 is the daughter of applicant no. 2. The applicants have filed a civil suit for cancellation of marriage certificate issued by the Deputy Registrar / Registrar, Hindu Marriage, Mahmoodabad, Sitapur which appears to have been issued in favour of the respondent no. 2 certifying the applicant no. 1 to be a legally wedded wife of respondent no. 2 herein. This transfer application seeks transfer of the 4 All. Smt. Pratibha Gautam & Anr. Vs The Civil Judge (Senior Division), Sitapur & Anr. 911 above suit filed by the applicants from Civil Judge (S.D.) Sitapur to the court of competent jurisdiction at Lucknow. 3. The case set up by the applicants before the Civil Judge (S.D.) Sitapur is to the effect that the applicant no. 1 was never married to respondent no. 2 but has been rather married to one Vipin Kumar Chandra who is a different person. The respondent no. 2 is alleged to have obtained a fictitious and fraudulent marriage certificate on the basis of which the applicants are being black mailed and harassed. 4. The civil proceedings instituted before the Civil Judge (S.D.) Sitapur after exchange of pleadings between the parties reached the stage of framing of issues on 29.07.2015 when issue nos. 1 to 5 were drawn. Issue no. 2 was decided on the same date which related to the accrual of cause of action. Issue nos. 3 and 4 regarding valuation and payment of court fee were decided by order dated 12.08.2015 in favour of the applicants. 5. At the stage, when evidence was to be led by the parties on other issues, an application under Order 7 Rule 11 has been filed by respondent no. 2 raising an objection against the maintainability of proceedings before the Civil Court, inasmuch as, the dispute being matrimonial in nature, therefore, it would be amenable to the jurisdiction of Family Court is the objection raised by respondent no. 2 (disputed husband). 6. The question that immediately crops up for consideration is as to whether the proceedings for cancellation of marriage certificate which is in the nature of a matrimonial dispute would at all be maintainable before the Civil Court under Section 9 of the Code of Civil Procedure or the same would lie within the domain of Family Court which exercises jurisdiction under the Family Court Act, 1984. 7. It is well settled that the jurisdiction of the civil courts conferred under Section 9 of the Code of Civil Procedure can be exercised unless it is expressly or impliedly barred. The jurisdiction of Family Court is defined under Section 7 of the Family Court Act, 1984 which is extracted below:- "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. 912 INDIAN LAW REPORTS ALLAHABAD SERIES Explanation -The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely: a. a suit or proceeding between the parties to a marriage for decree of a nullity 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." 8. This Court having regard to the domain of jurisdiction defined under the aforesaid provision does find that though the provision quoted above is not exhaustive yet the same provides for carving out jurisdiction of the Family Courts in the matters of all matrimonial disputes. 9. The instant case for declaring a marriage certificate issued by the Deputy Registrar as invalid by its very nature is a matrimonial dispute which in my opinion would lie within the encompass of explanation provided under Section 7 of the Family Court Act, 1984. Therefore, while upholding the objection in favour of respondent no. 2, this Court proceeds to deal with the transfer application. 10. In so far as the transfer of the civil suit from District Sitapur in terms of the prayer made in the present application is concerned, the same would require a notice to be issued to the respondent no. 2 in view of the provisions of Section 24 of Code of Civil Procedure but having taken notice of the peculiar issue where 4 All. Awadesh Narain Singh Vs State Of U.P. & Ors. 913 applicant no. 1 denies to be the legally wedded wife of respondent no. 2 and having regard to the alleged conduct of respondent no. 2, issuance of notice to respondent no. 2 is hereby dispensed with. 11. Although the civil suit is instituted by the applicants themselves before the Civil Judge (S.D.) Sitapur and any indulgence by this Court under Section 24 of the C.P.C. and that too at the stage when the suit proceedings are at the stage of evidence may not be in the fitness of things but looking to the peculiar facts and circumstances of the case where the applicant no. 1 claims herself to be married to a different person and the respondent no. 2 being denied to be the lawful husband coupled with other allegations made in this application, it is desirable to invoke the jurisdiction vested in this Court under Section 24 of the Code of Civil Procedure. 12. In the interest of justice, the proceedings of civil suit no. 521 of 2014 are accordingly transferred from Civil Judge (S.D.) Sitapur to the Family Court, Lucknow where the case shall be registered and tried. The applicants shall file a copy of this order before the Civil Judge (S.D.) District Sitapur within two weeks who shall forthwith pass necessary order for transfer of the paper book with due notice to respondent no. 2 and the parties shall accordingly appear before the Family Court, Lucknow to co-operate with the proceedings. It is also clarified that the proceedings are maintainable at the instance of applicant no. 1 and her father having no locus to contest the case may be deleted from the array of plaintiffs, however, he may be allowed pairvi only. 13. Accordingly, the transfer application is hereby allowed. The necessary steps for transfer of the proceedings with due notice to the parties shall be carried out not later than one month from today. In case, there be any grievance to the respondent no. 2 against this order, it is open for him to seek an opportunity of hearing by filing an application for re-call. 14. It is further directed that the Family Court, Lucknow shall make an earnest endeavour to decide the suit proceedings expeditiously and preferably within a period of one year from the date a certified copy of this order is filed before the Court concerned. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.02.2016 BEFORE THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J. THE HON'BLE YASHWANT VARMA, J. Special Appeal No.- 93 Of 2016 & Special Appeal No.- 95 Of 2016 Awadesh Narain Singh ...Appellant Versus State Of U.P. & Ors. ...Respondents Counsel for the Appellant: