Mumbai: The Bombay High Court has ruled
that in matrimonial cases, family courts have the jurisdiction
to entertain only those disputes relating to properties of
spouses and not those in the names of the family members.
The mandate under section 27 of Hindu Marriage Act
(HMA) is only with regard to properties belonging to husband
and wife and not to any other family members, Justice Roshan
Dalvi also quashed a family court order which ruled
that it could entertain disputes relating to properties of
family members too.
The matter arose out of a petition filed in family
court by Haresh Ashar who is fighting a divorce case against
his wife, Shobha. He staked his claim over properties in the
names of sons saying that they were `benami` purchased by him.
As the family court at suburban Bandra held it could
entertain matters of properties of the family members, Shoba
moved the high court which set aside the order.
The high court held that properties in the names of
sons were not brought within the purview of HMA. The reasoning
behind such a restriction is that HMA cannot apply to any
proceedings between father and son except for matters relating
to aspects which came under that relationship, like custody
of children and maintenance and education expenses.
Dalvi said proceedings under HMA can be for divorce,
restitution of conjugal rights, nullity of marriage, child
custody and maintenance. A family court could also hear
grievances over property disputes pertaining to spouses. In
this case, the relief sought by husband could only be heard by
civil court and not by family court, she said.
Haresh and Shobha had married in a temple at Osaka in
Japan in accordance with Japanese rites in 1973 and Counsel
General of India in Japan had issued a marriage registration
certificate under Foreign Marriage Act (FMA).
Haresh moved a family court here seeking dissolution
of marriage under HMA. He also named his sons as respondents
in the proceedings and sought return of properties purchased
by him in their names.
The High Court further ruled that Haresh cannot seek
dissolution of marriage with Shobha under HMA. A couple may
have married in keeping with Hindu rites but what is important
is under what law their marriage was registered, Dalvi said.
Since their marriage was registered in Japan, under
FMA, he could seek divorce under that law alone, Dalvi held.
Haresh had claimed that a day before their wedding in
Japan, he and Shobha had married as per Hindu rites and hence
they were governed under HMA.
However, Dalvi disagreed and said the marriage
certificate issued by the Counsel General of India in Japan
was conclusive proof that the special law, FMA, would govern